[Federal Register Volume 65, Number 228 (Monday, November 27, 2000)]
[Rules and Regulations]
[Pages 70663-70669]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-29963]


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DEPARTMENT OF JUSTICE

Parole Commission

28 CFR Part 2


Paroling, Recommitting, and Supervising Federal Prisoners: 
Prisoners Serving Sentences Under the District of Columbia Code

AGENCY: United States Parole Commission, Justice.

ACTION: Final rule.

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SUMMARY: The U.S. Parole Commission is revising the guidelines that 
govern its decisions to grant and deny parole in the case of prisoners 
serving sentences for felony crimes under the District of Columbia 
Code. The revised guidelines convert the rehearing ranges into a single 
range indicating the total prison time that may be served by the 
inmate, and authorizes the setting of presumptive release dates up to 
36 months from the date of the parole hearing. However, the Point 
Assignment Table remains the basis upon which the guidelines are 
determined. The Commission is adopting this rule change to improve 
understanding by inmates and the public as to the impact that the 
guidelines will have in individual cases, and to facilitate successful 
release planning in advance of parole.

EFFECTIVE DATE: January 2, 2001.

FOR FURTHER INFORMATION CONTACT: Office of General Counsel, U.S. Parole 
Commission, 5550 Friendship Blvd., Chevy Chase, Maryland 20815, 
telephone (301) 492-5959. Questions about this publication are welcome, 
but public inquiries concerning individual cases cannot be answered.

SUPPLEMENTARY INFORMATION: The Commission has voted to revise 28 CFR 
2.80 so as to make the guidelines for D.C. Code offenders more 
understandable to inmates and the public, fairer and easier to 
administer. The revised rule will (1) enhance the ability of inmates 
and the public, including victims of crime, to understand the 
guidelines and their impact in individual cases by allowing each 
inmate's Base Point Score to determine an overall guideline range 
showing the total time the inmate is expected to serve before release 
on parole; (2) provide more information to inmates as to their actual 
expected release dates by authorizing presumptive release dates up to 
36 months from the date of the most recent parole hearing (contingent 
upon good conduct and development of an adequate release plan); (3) 
facilitate release planning by setting such presumptive release dates; 
(4) eliminate anomalies in the current system that disadvantage inmates 
whose rehearings are delayed through no fault of their own or who are 
encouraged by staff to waive parole reconsideration until they complete 
institutional programs; and (5) reduce the maximum allowable time 
between parole consideration hearings from five years to three years 
(except for an offense in which death results and the offender is more 
than three years below his or her applicable guideline range). 
Moreover, the revised rule contains a presumptive credit for ``ordinary 
program achievement,'' which currently must be determined on a case-by-
case basis, in the guideline range itself. Hence, inmates will now 
receive the benefit of having their ``ordinary program achievement'' 
points credited in advance.
    Public comment was received on this rule in response to the 
proposals published at 65 FR 26789 (May 8, 2000). In general, the 
comment was favorable as to the establishing of presumptive release 
dates and the general limitation of continuances to 36 months. However, 
there were complaints that the proposed rule was difficult to 
understand and apply. Confusion was, in all likelihood, caused by the 
Commission having published alternative options of the proposal for 
public comment. The Commission believes that the version adopted herein 
(Option 2, modified by increasing the credit for superior program 
achievement from 25 percent to 33\1/3\ percent) is straightforward and 
will be readily understood by prisoners and their representatives.

Summary of the Final Rule

    The revised version of Sec. 2.80 eliminates the Total Point Score 
from the Point Assignment Table (i.e., the system of adding or 
subtracting points for post-incarceration factors), and eliminates the 
system of determining at each hearing (based on the Total Point Score) 
whether the inmate qualifies for parole at that time. It substitutes 
the following decisionmaking procedure.
    Under Step 1, a Base Guideline Range is determined from the Base 
Point Score. There is no change from the Base Point Score used in 
Sec. 2.80. The time expected for the inmate to qualify for parole 
(assuming no disciplinary infractions and ordinary program achievement) 
is simply made explicit.\1\ Under Step 2, the Parole Eligibility Date 
is recorded. Under Step 3, a Disciplinary Guideline Range is determined 
(if there are any disciplinary infractions) based on the time ranges 
prescribed at Sec. 2.36. Under Step 4, a Superior Program Achievement 
Award (if superior program achievement is found) is determined. The 
Superior Program Achievement Award is based on the number of months of 
superior program achievement on the inmate's prison record (i.e., 
program achievement that would have qualified for a two-point deduction 
under the current system that this rule will replace).
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    \1\ Multiplying (A) the rehearing range in the current D.C. 
guidelines by (B) [the Base Point Score minus 3 points] (the number 
of rehearings required before parole assuming no disciplinary 
infractions and ordinary program achievement) produces the Base 
Point Range. For example, an inmate with a Base Point Score of 6 
with no disciplinary infractions and ordinary program achievement at 
each hearing would have two rehearing range of 18-24 months each 
before the guidelines indicated parole. This translates to a 
guideline range of the Parole Eligibility Date plus 36-48 months. 
For most cases, the results under the current system lumps together 
certain dissimilar cases; for example, under the current system, an 
offender with a case point score of 5 who has outstanding program 
achievement and no disciplinary infractions will serve the same 
amount of time as an offender with ordinary program achievement.
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    Under Step 5, Base Point Guideline Range, Parole Eligibility Date, 
Disciplinary Range, and the Superior Program Achievement Award are 
combined, at the initial hearing, into a

[[Page 70664]]

Total Guideline Range. This will make clear to the inmate the amount of 
time he or she may expect to serve with continued good conduct and 
ordinary program achievement. The impact of superior program 
achievement as well as disciplinary infractions will also be made 
clear. Equally importantly, if release within three years is deemed 
appropriate by the Commission, the inmate can be given a presumptive 
release date (contingent upon continued good behavior and the 
development of a satisfactory release plan). Otherwise, the inmate is 
continued for a rehearing, normally at 36 months, when the granting of 
a presumptive release date will again be considered. At each rehearing, 
the Total Guideline Range from the previous hearing is used as the 
starting point and is modified by adding the amount, if any, from Step 
3 (based on conduct since the last hearing) and subtracting the amount, 
if any, from Step 4 (based on conduct since the last hearing). The 
result is the Total Guideline Range to be used at the rehearing.
    In the Commission's opinion, presumptive release dates allow 
inmates to plan for their release, and have proved a strong incentive 
for continued good conduct. Additionally, with presumptive release 
dates, the final review nine months before release (to ensure that the 
inmate has continued good conduct and to consider any additional 
outstanding program achievement) can be conducted on the record rather 
by personal hearing. This is administratively more efficient and 
reduces the possibility of delay in scheduling the final hearing (such 
as delays caused by the transfer of inmates between facilities) that 
may adversely impact the actual release date. Only if serious 
institutional misconduct is found at this record review would an in-
person rehearing be ordered by the Commission.

Implementation

    This revision of 28 CFR 2.80 will be applied prospectively to all 
D.C. Code adult prisoners who receive their initial hearings on or 
after December 4, 2000. It will also be applied retroactively at the 
next scheduled rehearing (e.g., to permit the setting of a presumptive 
release date) to all D.C. Code adult prisoners previously heard under 
Sec. 2.80 who have received no positive or negative points for 
disciplinary infractions or for superior program achievement at any 
hearing. The current version of Sec. 2.80 will appear in an appendix to 
Sec. 2.80 and will continue to be applicable to all prisoners 
previously heard under Sec. 2.80 who received points for disciplinary 
infractions or superior program achievement at any previous hearing, 
all prisoners sentenced under the Youth Rehabilitation Act, and all 
prisoners given initial hearings prior to August 5, 1998.

Regulatory Assessment Requirements

    The U.S. Parole Commission has determined that this final rule does 
not constitute a significant rule within the meaning of Executive Order 
12866. The final rule will not have a significant economic impact upon 
a substantial number of small entities within the meaning of the 
Regulatory Flexibility Act, 5 U.S.C. 605(b), and is deemed by the 
Commission to be a rule of agency practice that does not substantially 
affect the rights or obligations of non-agency parties pursuant to 
section 804(3)(C) of the Congressional Review Act.

List of Subjects in 28 CFR Part 2

    Administrative practice and procedure, Prisoners, Probation and 
parole.

The Amendments

    Accordingly, the U.S. Parole Commission is adopting the following 
amendments to 28 CFR part 2.

PART 2--[AMENDED]

    1. The authority citation for 28 CFR part 2 continues to read as 
follows:

    Authority: 18 U.S.C. 4203(a)(1) and 4204(a)(6).

    2. Section 2.75 is revised to read as follows:


Sec. 2.75  Reconsideration proceedings.

    (a)(1) Prisoners subject to guidelines at Sec. 2.80. (i) In the 
case of a prisoner subject to the guidelines at Sec. 2.80, the 
Commission may, following an initial or subsequent hearing:
    (A) Set an effective parole date within nine months of the date of 
the hearing;
    (B) Set a presumptive parole date at least ten months but not more 
than three years from the date of the hearing;
    (C) Continue the prisoner to the expiration of sentence if the 
prisoner's mandatory release date is within three years of the date of 
the hearing; or
    (D) Schedule a reconsideration hearing at three years from the 
month of the hearing.
    (ii) Exception: If the prisoner's current offense behavior resulted 
in the death of a victim and the prisoner is more than three years 
below the minimum of the applicable guideline range at the time of the 
hearing, the Commission may, in its discretion, schedule a 
reconsideration hearing at a later date that does not exceed the 
minimum of the applicable guideline range and is not more than five 
years from the month of the last hearing.
    (2) Prisoners subject to guidelines at the appendix to Sec. 2.80. 
(i) In the case of a prisoner subject to the guidelines at the appendix 
to Sec. 2.80, if the Commission denies parole, it shall establish an 
appropriate reconsideration date in accordance with the provisions of 
the appendix to Sec. 2.80. If the prisoner's mandatory release date 
will occur before the reconsideration date deemed appropriate by the 
Commission pursuant to the appendix to Sec. 2.80, the Commission may 
order that the prisoner be released by the expiration of his sentence 
less good time (``continue to expiration'').
    (ii) The first reconsideration date shall be calculated from the 
prisoner's eligibility date, except that in the case of a youth 
offender or any prisoner who has waived the initial hearing, the first 
reconsideration date shall be calculated from the date the initial 
hearing is held. In all cases, any subsequent reconsideration date 
shall be calculated from the date of the last hearing. In the case of a 
waiver or substantial delay in holding the initial hearing, the 
Commission may conduct a combined initial hearing and such rehearings 
nunc pro tunc as would otherwise have been held during the delay.
    (iii) Notwithstanding the provisions of paragraph (a)(2)(i) of this 
section, the Commission shall not set a reconsideration date in excess 
of five years from the date of the prisoner's last hearing, nor shall 
the Commission continue a prisoner to the expiration of his or her 
sentence, if more than five years remains from the date of the last 
hearing until the prisoner's scheduled mandatory release.
    (b) When a rehearing is scheduled, the prisoner shall be given a 
rehearing during the month specified by the Commission, or on the 
docket of hearings immediately preceding that month if no docket of 
hearings is scheduled for the month specified.
    (c) At a reconsideration hearing, the Commission may take any 
action that it could take at an initial hearing. The scheduling of a 
reconsideration hearing does not imply that parole will be granted at 
such hearing.
    (d) Prior to a parole reconsideration hearing, the Commission shall 
review the prisoner's record, including an institutional progress 
report which shall be submitted 60 days prior to the hearing. Based on 
its review of the record, the Commission may grant an effective date of 
parole without

[[Page 70665]]

conducting the scheduled in-person hearing.
    (e) Notwithstanding a previously established reconsideration 
hearing, the Commission may reopen any case for a special 
reconsideration hearing, as provided in Sec. 2.28, upon the receipt of 
new and significant information concerning the prisoner.
    3. Section 2.80 is revised to read as follows:


Sec. 2.80  Guidelines for D.C. Code offenders.

    (a) Applicability. This guideline applies to any initial hearing 
for an adult prisoner conducted on or after December 4, 2000, and any 
rehearing for an adult prisoner who was given an initial hearing on or 
after August 5,1998, but before December 4, 2000, and who did not 
receive any positive points for disciplinary infractions or negative 
points for superior program achievement at the initial hearing or any 
rehearing conducted before December 4, 2000. Any other prisoner will 
continue to have his case decided under the rule previously in effect 
(as set forth in the appendix to this section).
    (b) Guidelines. In determining whether an eligible prisoner should 
be paroled, the Commission shall apply the guidelines set forth in this 
section. The guidelines assign numerical values to pre-and post-
incarceration factors. Decisions outside the guidelines may be made, 
where warranted, pursuant to paragraph (n) of this section.
    (c) Salient factor score and criminal record. The prisoner's 
Salient Factor Score shall be determined by reference to the Salient 
Factor Scoring Manual in Sec. 2.20. The Salient Factor Score is used to 
assist the Commission in assessing the probability that an offender 
will live and remain at liberty without violating the law. The 
prisoner's record of criminal conduct (including the nature and 
circumstances of the current offense) shall be used to assist the 
Commission in determining the probable seriousness of the recidivism 
that is predicted by the Salient Factor Score.
    (d) Disciplinary infractions. The Commission shall assess whether 
the prisoner has been found guilty of committing significant 
disciplinary infractions while under confinement for the current 
offense.
    (e) Program achievement. (1) The Commission shall assess whether 
the prisoner has demonstrated ordinary or superior achievement in the 
area of prison programs, industries, or work assignments while under 
confinement for the current offense. Superior program achievement means 
program achievement that is beyond the level that the prisoner might 
ordinarily be expected to accomplish. Credit for program achievement 
may be granted regardless of whether the guidelines for disciplinary 
infractions have been applied for misconduct during the same period. 
The guidelines in this section presume that the prisoner will have 
ordinary program achievement.
    (2) In the case of a prisoner who has declined to participate in 
institutional programming, a decision in the upper half of the 
applicable guideline range generally will be warranted, except that in 
the case of a prisoner who has a base point score of 3 or less, or who 
has a criminal record involving violence or sexual offenses and who has 
not participated in available programming to address a potential for 
criminal behavior of a violent or sexual nature, a decision above the 
guidelines may be warranted.
    (f) Base point score. Add the applicable points from Categories I-
III of the Point Assignment Table to determine the base point score.

                         Point Assignment Table
------------------------------------------------------------------------
                           Categories                             Points
------------------------------------------------------------------------
          CATEGORY I: RISK OF RECIDIVISM (Salient Factor Score)
------------------------------------------------------------------------
 
 10-8 (Very Good Risk).........................................       +0
7-6 (Good Risk)................................................       +1
5-4 (Fair Risk)................................................       +2
3-0 (Poor Risk)................................................       +3
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          CATEGORY II: CURRENT OR PRIOR VIOLENCE (Type of Risk)
 
   Note: Use the highest applicable subcategory. If no subcategory is
                         applicable, score = 0.
------------------------------------------------------------------------
 
 A. Violence in current offense, and any felony violence in two       +4
 or more prior offenses........................................
B. Violence in current offense, and any felony violence in one        +3
 prior offense.................................................
C. Violence in current offense.................................       +2
D. No violence in current offense and any felony violence in          +2
 two or more prior offenses....................................
E. Possession of firearm in current offense if current offense        +2
 is not scored as a crime of violence..........................
F. No violence in current offense and any felony violence in          +1
 one prior offense.............................................
------------------------------------------------------------------------
          CATEGORY III: DEATH OF VICTIM OR HIGH LEVEL VIOLENCE
 
     Note: Use highest applicable subcategory. If no subcategory is
    applicable, score = 0. A current offense that involved high level
  violence must be scored under both Category II (A, B, or C) and under
                              Category III.
------------------------------------------------------------------------
 
 A. Current offense was high level or other violence with death       +3
 of victim resulting...........................................
B. Current offense involved attempted murder, conspiracy to           +2
 murder, solicitation to murder, or any willful violence in
 which the victim survived despite death having been the most
 probable result at the time the offense was committed
C. Current offense involved high level violence (other than the       +1
 behaviors described above)
------------------------------------------------------------------------
              BASE POINT SCORE (Total of Categories I-III)
------------------------------------------------------------------------

    (g) Definitions and instructions for application of point 
assignment table.
    (1) Salient factor score means the salient factor score set forth 
at Sec. 2.20.
    (2) High level violence in Category III means any of the following 
offenses--
    (i) Murder;
    (ii) Voluntary manslaughter;
    (iii) Arson of a building in which a person other than the offender 
was present or likely to be present at the time of the offense;

[[Page 70666]]

    (iv) Forcible rape or forcible sodomy (first degree sexual abuse);
    (v) Kidnapping, hostage taking, or any armed abduction of a victim 
during a carjacking or other offense;
    (vi) Burglary of a residence while armed with any weapon if a 
victim was in the residence during the offense;
    (vii) Obstruction of justice through violence or threats of 
violence;
    (viii) Any offense involving sexual abuse of a person less than 
sixteen years of age;
    (ix) Mayhem, malicious disfigurement, or any offense defined as 
other violence in paragraph
    (g)(4) of this section that results in serious bodily injury as 
defined in paragraph (g)(3) of this section;
    (x) Any offense defined as other violence in paragraph (g)(4) of 
this section in which the offender intentionally discharged a firearm;
    (3) Serious bodily injury means bodily injury that involves a 
substantial risk of death, unconsciousness, extreme physical pain, 
protracted and obvious disfigurement, or protracted loss or impairment 
of the function of a bodily member, organ, or mental faculty.
    (4) Other violence means any of the following felony offenses that 
does not qualify as high level violence
    (i) Robbery;
    (ii) Residential burglary;
    (iii) Felony assault;
    (iv) Felony offenses involving a threat, or risk, of bodily harm;
    (v) Felony offenses involving sexual abuse or sexual contact;
    (vi) Involuntary manslaughter (excluding negligent homicide).
    (5) Attempts, conspiracies, and solicitations shall be scored by 
reference to the substantive offense that was the object of the 
attempt, conspiracy, or solicitation; except that Category IIIA shall 
apply only if death actually resulted.
    (6) Current offense means any criminal behavior that is either:
    (i) Reflected in the offense of conviction, or
    (ii) Is not reflected in the offense of conviction but is found by 
the Commission to be related to the offense of conviction (i.e., part 
of the same course of conduct as the offense of conviction). In 
probation violation cases, the current offense includes both the 
original offense and the violation offense, except that the original 
offense shall be scored as a prior conviction (with a prior commitment) 
rather than as part of the current offense, if the prisoner served more 
than six months in prison for the original offense before his probation 
commenced
    (7) Category IIE applies whenever a firearm is possessed by the 
offender during, or is used by the offender to commit, any offense that 
is not scored under Category II(A-D). Category IIE also applies when 
the current offense is felony unlawful possession of a firearm and 
there is no other current offense. Possession for purposes of Category 
IIE includes constructive possession.
    (8) Category IIIA applies if the death of a victim is:
    (i) Caused by the offender, or
    (ii) Caused by an accomplice and the killing was planned or 
approved by the offender in furtherance of a joint criminal venture.
    (h) Determining the base guideline range. Determine the base 
guideline range for adult prisoners from the following table:

------------------------------------------------------------------------
                                                                 Base
                                                              guideline
                      Base point score                          range
                                                               (months)
------------------------------------------------------------------------
3 or less..................................................            0
4..........................................................        12-18
5..........................................................        18-24
6..........................................................        36-48
7..........................................................        54-72
8..........................................................        72-96
9..........................................................      110-140
10.........................................................      136-172
------------------------------------------------------------------------

    (i) Months to parole eligibility. Determine the total number of 
months until parole eligibility.
    (j) Guideline range for disciplinary infractions. Determine the 
applicable guideline range from Sec. 2.36 for any significant 
disciplinary infractions since the beginning of confinement on the 
current offense in the case of an initial hearing, and since the last 
hearing in the case of a rehearing. If there are no significant 
disciplinary infractions, this step is not applicable.
    (k) Guidelines for superior program achievement. If superior 
program achievement is found, the award for superior program 
achievement shall be one-third of the number of months during which the 
prisoner demonstrated superior program achievement. The award is 
determined on the basis of all time in confinement on the current 
offense in the case of an initial hearing, and on the basis of time in 
confinement since the last hearing in the case of a rehearing. If 
superior program achievement is not found, this step is not applicable.

    Note:  When superior program achievement is found, it is 
presumed that the award will be based on the total number of months 
since the beginning of confinement on the current offense in the 
case of an initial hearing, or since the last hearing in the case of 
a rehearing. Where, however, the Commission determines that the 
prisoner did not have superior program achievement during the entire 
period, it may base its decision solely on the number of months 
during which the prisoner had superior program achievement.

    (l) Determining the total guideline range at an initial hearing. At 
an initial hearing
    (1) Add together the minimum of the base point guideline range 
(from paragraph (h) of this section), the number of months required by 
the prisoner's parole eligibility date (from (i) of this section), and 
the minimum of the guideline range for disciplinary infractions, if 
applicable (from paragraph (j) of this section). Then subtract the 
award for superior program achievement, if applicable (from paragraph 
(k) of this section). The result is the minimum of the Total Guideline 
Range.
    (2) Add together the maximum of the base point guideline range 
(from paragraph (h) of this section), the number of months required by 
the prisoner's parole eligibility date (from paragraph (i) of this 
section), and the maximum of the guideline range for disciplinary 
infractions, if applicable (from paragraph (j) of this section). Then 
subtract the award for superior program achievement, if applicable 
(from paragraph (k) of this section). The result is the maximum of the 
Total Guideline Range.
    (m) Determining the total guideline range at a reconsideration 
hearing. At a reconsideration hearing--
    (1) Add together the minimum of the Total Guideline Range from the 
previous hearing, and the minimum of the guideline range for 
disciplinary infractions since the previous hearing, if applicable 
(from paragraph (j) of this section). Then subtract the award for 
superior program achievement, if applicable (from paragraph (k) of this 
section). The result is the minimum of the Total Guideline Range for 
the current hearing.
    (2) Add together the maximum of the Total Guideline Range from the 
previous hearing, and the maximum of the guideline range for 
disciplinary infractions since the previous hearing, if applicable 
(from paragraph (j) of this section). Then subtract the award for 
superior program achievement since the previous hearing, if applicable 
(from paragraph (k) of this section). The result is the maximum of the 
Total Guideline Range for the current hearing.
    (n) Decisions outside the guidelines.
    (1) The Commission may, in unusual circumstances, grant or deny 
parole to a prisoner notwithstanding the guidelines. Unusual 
circumstances are case-specific factors that are not fully taken into 
account in the guidelines, and that are relevant to the grant or

[[Page 70667]]

denial of parole. In such cases, the Commission shall specify in the 
notice of action the specific factors that it relied on in departing 
from the applicable guideline or guideline range. If the prisoner is 
deemed to be a poorer or more serious risk than the guidelines 
indicate, the Commission shall determine what Base Point Score would 
more appropriately fit the prisoner's case, and shall render its 
initial and rehearing decisions as if the prisoner had that higher Base 
Point Score. It is to be noted that, in some cases, an extreme level of 
risk presented by the prisoner may make it inappropriate for the 
Commission to contemplate a parole at any hearing without a significant 
change in the prisoner's circumstances.
    (2) Factors that may warrant a decision above the guidelines 
include, but are not limited to, the following:
    (i) Poorer parole risk than indicated by salient factor score. The 
offender is a poorer parole risk than indicated by the salient factor 
score because of--
    (A) Unusually persistent failure under supervision (pretrial 
release, probation, or parole);
    (B) Unusually persistent history of criminally related substance 
(drug or alcohol) abuse and resistance to treatment efforts; or
    (C) Unusually extensive prior record (sufficient to make the 
offender a poorer risk than the ``poor'' prognosis category).
    (ii) More serious parole risk. The offender is a more serious 
parole risk than indicated by the total point score because of--
    (A) Prior record of violence more extensive or serious than that 
taken into account in the guidelines;
    (B) Current offense demonstrates extraordinary criminal 
sophistication, criminal professionalism in the employment of violence 
or threats of violence, or leadership role in instigating others to 
commit a serious offense;
    (C) Unusual cruelty to the victim (beyond that accounted for by 
scoring the offense as high level violence), or predation upon 
extremely vulnerable victim;
    (D) Unusual propensity to inflict unprovoked and potentially 
homicidal violence, as demonstrated by the circumstances of the current 
offense; or
    (E) Additional serious offense(s) committed after (or while on bond 
or fugitive status from) current offense that show unusual capacity for 
sustained, repeated violent criminal activity.
    (3) Factors that may warrant a decision below the guidelines 
include, but are not limited to, the following:
    (i) Better parole risk than indicated by salient factor score. The 
offender is a better parole risk than indicated by the salient factor 
score because of (applicable only to offenders who are not already in 
the very good risk category)--
    (A) A prior criminal record resulting exclusively from minor 
offenses;
    (B) A substantial crime-free period in the community for which 
credit is not already given on the Salient Factor Score;
    (C) A change in the availability of community resources leading to 
a better parole prognosis;
    (ii) Other factors:
    (A) Unusually lengthy period of incarceration on the minimum 
sentence (in relation to the seriousness of the offense and prior 
record) that warrants an initial parole determination as if the 
offender were being considered at a rehearing;
    (B) Substantial period in custody on other sentence(s) sufficient 
to warrant a finding in paragraph (n)(3) of this section; or
    (C) Clearly exceptional program achievement.

Appendix to Sec. 2.80

    (a) Applicability. (1) The guidelines in this Appendix apply to:
    (i) Any adult offender who received an initial hearing on or 
after August 5, 1998 and before December 4, 2000, and who also 
received positive points for disciplinary infractions or negative 
points for superior program achievement at any hearing (initial or 
rehearing) during the above period; and
    (ii) Any youth offender who received an initial hearing on or 
after August 5, 1998.
    (2) For prisoners whose initial hearings were held prior to 
August 5, 1998, the Commission shall render its decisions by 
reference to the guidelines applied by the D.C. Board of Parole. 
However, when a decision outside such guidelines has been made by 
the Board, or is ordered by the Commission, the Commission may 
determine the appropriateness and extent of the departure by 
comparison with the guidelines in this appendix. The Commission may 
also correct any error in the calculation of the D.C. Board's 
guidelines.
    (b) Guidelines. Apply Sec. 2.80(b).
    (c) Salient factor score and criminal record. Apply 
Sec. 2.80(c).
    (d) Disciplinary infractions. The Commission shall assess 
whether the prisoner has been found guilty of committing 
disciplinary infractions while under confinement for the current 
offense. The Commission shall refer to the offense classification 
tables of the D.C. Department of Corrections or the Bureau of 
Prisons, as applicable, in determining whether the prisoner's 
disciplinary record should be counted on the point score. A single 
Class I or Code 100 offense, or two or more Class II or Code 200 
offenses, shall be counted as negative institutional behavior at an 
initial hearing or any rehearing. A persistent record of lesser 
offenses may also be counted as negative institutional behavior at 
an initial hearing or a rehearing. At initial hearings, an 
infraction-free period of at least three years preceding the date of 
the hearing may be considered by the Commission as sufficient to 
exclude from consideration a previous record of Class I (or Code 
100) or Class II (or Code 200) offenses, provided that such offenses 
would result in not more than one point added to the prisoner's 
score.
    (e) Program achievement. The Commission shall assess whether the 
prisoner has demonstrated ordinary or superior achievement in the 
area of prison programs, industries, or work assignments while under 
confinement for the current offense. Superior Program Achievement 
means program achievement that is beyond the level that the prisoner 
might ordinarily be expected to accomplish. Where prison programs 
and work assignments are limited or unavailable, the Commission may 
exercise discretion based on the prisoner's record of behavior. 
Points may be deducted for program achievement regardless of whether 
points have been added for negative institutional behavior during 
the same period.
    (f) Base Point Score. Add the applicable points from Categories 
I-III of the Point Assignment Table in Sec. 2.80 (f) to determine 
the Base Point Score (using the definitions in Sec. 2.80(g)).
    (g) Negative institutional behavior. Determine the points 
applicable, if any, for negative institutional behavior (Category 
IV).

CATEGORY IV: NEGATIVE INSTITUTIONAL BEHAVIOR

    Notes:
    (1) Use the highest applicable subcategory. If no subcategory is 
applicable, score = 0.
    (2) In some cases, negative institutional behavior that involves 
violence will result in a higher score if scored as an additional 
current offense under Categories II and/or III, than if scored under 
Category IVA. In such cases, the prisoner's point score is 
recalculated to reflect the conduct as an additional current offense 
under Categories II and/or III, rather than as a disciplinary 
infraction under Category IVA. For example, the attempted murder of 
another inmate will result in a higher score when treated as an 
additional current offense under Categories II and III, if the 
offense of conviction was scored under Category IIC only as violence 
in current offense. If negative institutional behavior is treated as 
an additional current offense, points may nonetheless be assessed 
under Category IVA or B for other disciplinary infractions.

[[Page 70668]]



 
 
 
A. Aggravated negative institutional behavior involving: (1)          +2
 assault upon a correctional staff member, with bodily harm
 inflicted or threatened, (2) possession of a deadly weapon,
 (3) setting a fire so as to risk human life, (4) introduction
 of drugs for purposes of distribution, or (5) participating in
 a violent demonstration or riot...............................
B. Ordinary negative institutional behavior....................       +1
 

    (h) Superior program achievement. Determine the (minus) points 
applicable, if any, for superior or ordinary program achievement 
(Category V).

CATEGORY V: PROGRAM ACHIEVEMENT

    Note: Use the highest applicable subcategory. If no subcategory 
is applicable, score = 0.

 
 
 
A. No program achievement......................................        0
B. Ordinary program achievement................................       -1
C. Superior program achievement................................       -2
 

    (i) Determine the Total Point Score by adding the Base Point 
Score (Categories I, II, and III) to any points applicable for 
Negative Institutional Behavior (Category IV) and then subtracting 
any points applicable for Program Achievement (Category V).
    (j) Guidelines for decisions at initial hearing--adult 
offenders. In considering whether to parole an adult offender at an 
initial hearing, the Commission shall determine the offender's Total 
Point Score and then consult the following guidelines for the 
appropriate action:

------------------------------------------------------------------------
           Total points                   Guideline recommendation
------------------------------------------------------------------------
(1) If Points =0..................  Parole at initial hearing with low
                                     level of supervision indicated.
(2) If Points =1..................  Parole at initial hearing with high
                                     level of supervision indicated.
(3) If Points =2..................  Parole at initial hearing with
                                     highest level of supervision
                                     indicated.
(4) If Points =3+.................  Deny parole at initial hearing and
                                     schedule rehearing in accordance
                                     with Sec.  2.75(c) and the time
                                     ranges set forth in paragraph (l)
                                     of this appendix.
------------------------------------------------------------------------

    (k) Guidelines for decisions at initial hearing--youth 
offenders. In considering whether to parole a youth offender at an 
initial hearing, the Commission shall determine the youth offender's 
total point score and then consult the following guidelines for the 
appropriate action:

------------------------------------------------------------------------
           Total points                   Guideline recommendation
------------------------------------------------------------------------
(1) If Points = 0.................  Parole at initial hearing with
                                     conditions established to address
                                     treatment needs.
(2) If Points = 1+................  Deny parole at initial hearing and
                                     schedule a rehearing based on
                                     estimated time to achieve program
                                     objectives or by reference to the
                                     time ranges in paragraph (l) of
                                     this Appendix, whichever is less.
------------------------------------------------------------------------

    (l) Guidelines for time to rehearing--adult offenders. (1) If 
parole is denied or rescinded, the time to the subsequent hearing for 
an adult offender shall be determined by the following guidelines:

------------------------------------------------------------------------
                                                              Months to
        Base point score  (Categories I through III)          rehearing
------------------------------------------------------------------------
0-4........................................................        12-18
5..........................................................        18-24
6..........................................................        18-24
7..........................................................        18-24
8..........................................................        18-24
9..........................................................        22-28
10.........................................................        26-32
------------------------------------------------------------------------

    (2) The time to a rehearing shall be determined by the prisoner's 
Base Point Score, and not by the Total Point Score at the current 
hearing, which indicates only whether parole should be granted or 
denied. Exception: In the case of institutional misconduct deemed 
insufficiently serious to warrant the addition of one or more points 
for negative institutional behavior, the Commission may nonetheless 
deny or rescind parole and render a decision based on the guideline 
ranges at Sec. 2.36.
    (3) At any initial hearing or rehearing, if the prisoner's Total 
Point Score is 4 or less, the Commission may order both a rehearing 
date and a presumptive parole date that is not more than 9 months from 
the rehearing date. Such presumptive date may be converted to a parole 
effective date following the rehearing, or the case may be reopened 
based on new favorable information and a parole effective date granted 
on the record.
    (m) Guidelines for decisions at subsequent hearing--adult 
offenders. In determining whether to parole an adult offender at a 
rehearing or rescission hearing, the Commission shall take the Total 
Point Score from the initial hearing or last rehearing, as the case may 
be, and adjust that score according to the institutional record of the 
candidate since the last hearing. The following guidelines are 
applicable:

------------------------------------------------------------------------
           Total points                   Guideline recommendation
------------------------------------------------------------------------
If Points = 0-3...................  Parole with highest level of
                                     supervision indicated.
If Points = 4+....................  Deny parole at rehearing and
                                     schedule a further rehearing in
                                     accordance with Sec.  2.75(c) and
                                     the time ranges set forth in
                                     paragraph (l) of this appendix.
------------------------------------------------------------------------

    (n) Guidelines for decisions at subsequent hearing--youth 
offenders. (1) In determining whether to parole a youth offender 
appearing at a rehearing or rescission hearing, the Commission shall 
take the Total Point Score from the initial hearing or last rehearing, 
as the case may be, and adjust that score according to the 
institutional record of the candidate since the last hearing. The 
following guidelines are applicable:

------------------------------------------------------------------------
           Total points                   Guideline recommendation
------------------------------------------------------------------------
If Points = 0-3...................  Parole with highest level of
                                     supervision indicated.

[[Page 70669]]

 
If Points = 4+....................  Deny parole and schedule a rehearing
                                     based on estimated time to achieve
                                     program objectives or by reference
                                     to the time ranges in paragraph (l)
                                     of this appendix, whichever is
                                     less.
------------------------------------------------------------------------

    (2) Prison officials may in any case recommend an earlier rehearing 
date than ordered by the Commission if the Commission's program 
objectives have been met.
    (o)(1) The Commission may, in unusual circumstances, waive the 
Salient Factor Score and the pre- and post-incarceration factors set 
forth in this section to grant or deny parole to a prisoner 
notwithstanding the guidelines, or to schedule a reconsideration 
hearing at a time different from that indicated in paragraph (l) of 
this appendix. Unusual circumstances are case-specific factors that are 
not fully taken into account in the guidelines, and that are relevant 
to the grant or denial of parole. In such cases, the Commission shall 
specify in the notice of action the specific factors that it relied on 
in departing from the applicable guideline or guideline range. For 
examples of factors that may warrant a decision outside the applicable 
guideline range, see Sec. 2.80(n).
    (2) If the prisoner is deemed to be a poorer or more serious risk 
than the guidelines indicate, the Commission shall determine what Base 
Point Score would more appropriately fit the prisoner's case, and shall 
render its initial and rehearing decisions as if the prisoner had that 
higher Base Point Score. If possible, the factors justifying such a 
departure shall be fully accounted for in the initial continuance, so 
that the guidelines can be followed at subsequent hearings. In some 
cases, however, an extreme level of risk presented by the prisoner may 
make it inappropriate for the Commission to contemplate a parole at any 
hearing without a significant change in the prisoner's circumstances.
    4. Section 2.86 is revised to read as follows:


Sec. 2.86  Release on parole; rescission for misconduct.

    (a) When a parole effective date has been set, actual release on 
parole on that date shall be conditioned upon the individual 
maintaining a good conduct record in the institution or prerelease 
program to which the prisoner has been assigned.
    (b) The Commission may reconsider any grant of parole prior to the 
prisoner's actual release on parole, and may advance or retard a parole 
effective date or rescind a parole date previously granted based upon 
the receipt of any new and significant information concerning the 
prisoner, including disciplinary infractions. The Commission may retard 
a parole date for disciplinary infractions (e.g., to permit the use of 
graduated sanctions) for up to 120 days without a hearing, in addition 
to any retardation ordered under Sec. 2.83(d).
    (c) If a parole effective date is rescinded for disciplinary 
infractions, an appropriate sanction shall be determined--
    (1) By reference to Sec. 2.36 in the case of a prisoner subject to 
the guidelines at Sec. 2.80; or
    (2) In the case of a prisoner subject to the guidelines at the 
appendix to Sec. 2.80, either by adding the appropriate points for 
negative institutional behavior to the prisoner's Total Point Score, or 
by reference to Sec. 2.36 if the misconduct is not sufficiently serious 
to warrant a continuance under Sec. 2.80 (k). A Total Point Score of 0-
2 shall be adjusted to a total point score of 3 prior to adding points 
for negative institutional behavior pursuant to the Point Assignment 
Table at Sec. 2.80(f).
    (c) After a prisoner has been granted a parole effective date, the 
institution shall notify the Commission of any serious disciplinary 
infractions committed by the prisoner prior to the date of actual 
release. In such case, the prisoner shall not be released until the 
institution has been advised that no change has been made in the 
Commission's order granting parole.
    (d) A grant of parole becomes operative upon the authorized 
delivery of a certificate of parole to the prisoner, and the signing of 
that certificate by the prisoner, who thereafter becomes a parolee.

    Dated: November 15, 2000.
Michael J. Gaines,
Chairman, U.S. Parole Commission.
[FR Doc. 00-29963 Filed 11-24-00; 8:45 am]
BILLING CODE 4410-31-P