[Federal Register Volume 63, Number 139 (Tuesday, July 21, 1998)]
[Rules and Regulations]
[Pages 39172-39183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19356]



[[Page 39171]]

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Part IV





Department of Justice





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28 CFR Part 2



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

Federal Register / Vol. 63, No. 139 / Tuesday, July 21, 1998 / Rules 
and Regulations

[[Page 39172]]


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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: Interim rule with request for comments.

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SUMMARY: The U.S. Parole Commission is incorporating into the Code of 
Federal Regulations, in amended and supplemented form, the regulations 
of the District of Columbia that govern the paroling jurisdiction that 
will be assumed by the U.S. Parole Commission on August 5, 1998. The 
paroling authority of the District of Columbia Board of Parole will be 
transferred to the U.S. Parole Commission under the National Capital 
Revitalization and Self-Government Improvement Act of 1997, which 
permits the Commission to amend and supplement the District's parole 
regulations pursuant to federal rulemaking procedures.

DATES: Effective Date: August 5, 1998. Comments must be received by 
December 1, 1998.

ADDRESSES: Send comments to Office of General Counsel, U.S. Parole 
Commission, 5550 Friendship Blvd., Chevy Chase, Maryland 20815.

FOR FURTHER INFORMATION CONTACT: Pamela A. Posch, Office of General 
Counsel, U.S. Parole Commission, 5550 Friendship Blvd., Chevy Chase, 
Maryland 20815, telephone (301) 492-5959.

SUPPLEMENTARY INFORMATION: Under Section 11231 of the National Capital 
Revitalization and Self-Government Improvement Act of 1997 (Public Law 
105-33) the U.S. Parole Commission is required, not later than August 
5, 1998, to assume the jurisdiction and authority of the Board of 
Parole of the District of Columbia to grant and deny parole, and to 
impose conditions upon an order of parole, in the case of any 
imprisoned felon who is eligible for parole or reparole under the 
District of Columbia Code. The Act requires the Parole Commission to 
exercise this authority pursuant to the parole laws and regulations of 
the District of Columbia. However, it also gives the Parole Commission 
the authority to amend or supplement any regulation interpreting or 
implementing the relevant parole laws of the District of Columbia, 
provided that the Commission adheres to the rulemaking requirements of 
the Administrative Procedure Act, 5 U.S.C. 553, as applied to the 
Commission by 18 U.S.C. 4218.
    After an extensive review of the relevant regulations of the Board 
of Parole of the District of Columbia, as currently set forth in the 
District of Columbia Code of Municipal Regulations, the Commission 
decided to republish them with appropriate revisions. The Commission 
decided not to leave these regulations in the D.C. Code of Municipal 
Regulations because the Revitalization Act makes parole for D.C. Code 
felons a federal function, and rules promulgated by federal agencies 
pursuant to the Administrative Procedure Act are required to be 
published in the Federal Register and the Code of Federal Regulations. 
Notice of this proposed rulemaking was published at 63 FR 17771 (April 
10, 1998). Notice of the proposed transfer of these regulations was 
also published in 45 D.C. Register 2356 (April 17, 1998).
    A complete set of regulations for District of Columbia felony 
prisoners is therefore being incorporated into the Code of Federal 
Regulations alongside the existing regulations that govern all other 
criminal offenders who fall under the Commission's jurisdiction. The 
regulations that govern the remaining functions of the Board of Parole 
of the District of Columbia will continue to be set forth in the D.C. 
Code of Municipal Regulations until the Commission assumes the 
remaining functions of the Board with respect to felons, on or before 
August 5, 2000.
    The revised D.C. parole regulations that will take effect as 
interim rules effective August 5, 1998, fall into three categories.
    First, the Board of Parole's procedural regulations have been 
amended and supplemented to clarify the procedures that the Commission 
will follow in considering District of Columbia prisoners for parole. 
The parole hearing and decisionmaking process will remain essentially 
the same as that of the D.C. Board of Parole, but in many instances 
modifications will promote both increased fairness and administrative 
efficiency in the discharge of this new function.
    Second, other revisions reflect recently-enacted District of 
Columbia laws, such as the Medical and Geriatric Parole Act, which were 
not previously implemented through regulations.
    Third, the Commission has supplemented the existing parole 
guidelines of the Board of Parole by adopting an improved point score 
system to replace the scoring system that was removed from the Board's 
regulations by D.C. Law 10-255 (May 16, 1995). The continued use of 
this point score system by the D.C. Board of Parole has resulted in a 
high rate of upward departures from the guidelines. For example, in a 
random sample of 100 cases decided by the D.C. Board of Parole in 1997, 
the Commission found departures in more than half of the cases. Factors 
cited by the Board to justify departures most often appear to involve 
aspects of the prisoner's current offense or criminal history that 
indicate a risk of violent recidivism. See, e.g., Ellis v. District of 
Columbia, 84 F.3d 1413 (D.C. Cir. 1996), Smith v. Quick, 680 A.2d 396 
(D.C. App. 1996), and McRae v. Hyman, 667 A.2d 1356 (D.C. App. 1995). 
The guidelines set forth below retain the basic framework of the 
Board's guidelines, but incorporate factors that would otherwise be 
expected to result in decisions outside the guidelines. The Commission 
intends this improved point score system to serve the Board's original 
purpose of predicting violent crime and incapacitating offenders with a 
high probability of serious recidivism. It is also intended to reduce 
the potential for unwarranted disparity that can be produced by the 
frequent exercise of unguided discretion.
    In this regard, the Parole Commission undertook a research study to 
identify factors related to current offense and criminal history that 
can be empirically correlated with repeat violent crime. The research 
was based on a statistical sampling of D.C. offenders released in 1992 
(which provided a five-year follow-up period), as well as on 
comparative samples from larger federal and Connecticut data bases. The 
guideline table that is published at this time is based upon factors 
that were confirmed by the research data as correlated with violent 
recidivism. Whereas the current D.C. point score demonstrated a weak 
association with violent recidivism, the score adopted by the 
Commission at this time shows a significantly improved correlation. 
Moreover, the Connecticut data produced results that were remarkably 
consistent with the results obtained with the Commission's D.C. data.
    In light of the research results, some factors were added to 
Category II of the proposed score, and others were dropped from the 
score as non-predictive. For example, distinguishing between ``high 
level'' and ordinary violence in the offender's prior record was found 
to reduce the predictive power of the score, as was the factor of 
``multiple current offenses.'' Therefore, these factors were deleted. 
Drug

[[Page 39173]]

trafficking in the current offense (without possession of a firearm) 
was also found to lower the prediction of violent recidivism, and was 
therefore deleted.
    On the other hand, the basic assumption that a violent current 
offense predicts for future violence was confirmed, as was the 
assumption that a violent prior record adds to the predictability of 
future violence in such cases. The research also pointed to the 
conclusion that a record of prior violent crime is predictive even if 
the current offense did not involve violence, so this factor was added. 
Firearm possession was also found to be strongly predictive, so this 
item is retained from the original D.C. score. (The points assigned to 
each factor in Category II of the score reflect that factor's 
predictive strength relative to the other factors in that Category.)
    Although the frequencies of extremely violent crimes (murder, rape, 
etc.) proved too small to yield empirical research results, the 
Commission decided that such cases present implied risk levels that 
would either justify repeated departures, or the inclusion of the 
relevant factors in the guideline system itself. The latter option was 
chosen. What constitutes ``violent crime'' in the current offense has 
therefore been given differentiation so that cases of ``high level'' 
violence receive appropriate point enhancements. This is consistent 
with past D.C. practice. The Board of Parole's current point score 
table assigns a one point enhancement for violence, regardless of the 
nature and seriousness of the crime, notwithstanding the factors at 28 
DCMR 204.18. Departures are therefore frequent for cases of ``unusual 
cruelty to victims,'' which appears to correlate with ``high level 
violence'' as defined by the Parole Commission in Category III of the 
revised point score. See, e.g., Hall v. Henderson, 672 A.2d 1047 (D.C. 
App. 1996).
    Additionally, the research indicated that the predictive power of 
the Salient Factor Score (SFS), which is currently used by both the 
Parole Commission and the D.C. Board of Parole, would be significantly 
enhanced by increasing the weight given to Item C (age of the 
commencement of the current offense), from a maximum of 2 points to a 
maximum of 3 points. The SFS is therefore revised to differentiate 
better between offenders on the basis of their age at the commencement 
of the current offense. Taken together, age at the commencement of the 
current offense and the number of prior convictions and commitments 
function to predict recidivism by providing a measure of the rate of 
the offender's past criminal conduct. An additional adjustment in Item 
C to the scoring of offenders with four prior commitments will further 
refine the SFS and increase its predictive power. Finally, the 
Commission has deleted Item F (heroin/opiate dependence), an item that 
predicts recidivism by itself but which does not add to the predictive 
power of the SFS once all the other items are taken into account. The 
Commission will thus avoid the scoring problems associated with the 
issue of heroin/opiate dependence (which are due to the inadequate 
background information maintained on many D.C. prisoners). The SFS will 
remain a ten-point score and the parole prognosis categories (as well 
as the scores that define theses categories) will not be changed.
    In sum, although some of the ``type of risk'' factors that indicate 
a prisoner's potential for violent recidivism are given increased 
weight in the new scoring system, this will render unnecessary the 
unstructured discretionary departures that were frequently ordered by 
the D.C. Board of Parole in the past to compensate for an inadequate 
violence prediction (``type of risk'') scale. Moreover, increased 
weight is given to institutional performance, both by permitting 
program achievement to be balanced against any misconduct during the 
same period, and by assigning an additional point to superior program 
achievement. Positive achievement in prison programs, as well as 
negative institutional behavior, will therefore continue to produce 
significant adjustments to the ``total point score'' each time a 
prisoner who has been denied parole appears for a reconsideration 
hearing.
    Finally, overcrowding in District prisons has long been a serious 
concern. However, the Commission's research indicates that adherence to 
the guidelines at Sec. 2.80 will not increase overall prison time or 
produce more prison overcrowding. The rehearing guidelines at 
Sec. 2.80(j) have been modified downward for prisoners with Base Point 
Scores of 7-10 to help keep the estimated average prison time served by 
D.C. prisoners within current levels. The Commission will continue to 
study the available data to determine whether the continuance ranges at 
Sec. 2.80(j) should be further adjusted to avoid any unintended impact 
on the prison population, while ensuring that serious offenders will 
serve periods of imprisonment that are adequate to protect the public 
safety.

Explanatory Comments By Section

    Comment to Sec. 2.70: This section sets forth the authority 
assigned to the Parole Commission under the D.C. Revitalization Act and 
carries forth the provisions of 28 DCMR 100 with two exceptions. First, 
28 DCMR 100.10 was not retained because the statutory authority upon 
which it was based has been repealed. Second, 28 DCMR 100.11 was not 
retained because it is redundant with paragraph (b) (derived from 28 
DCMR 100.2), which sets forth the Commission's authority regarding 
committed youth offenders in a broader form. This proposed rule also 
reflects a 1993 amendment to the D.C. Code regarding geriatric and 
medical cases, and updates the references in 28 DCMR 100 regarding the 
Youth Corrections Act to take into account the Youth Rehabilitation Act 
Amendment of 1985.
    Comment to Sec. 2.71: This rule carries forth the provisions of 28 
DCMR 102 with two modifications. First, youth offenders will have to 
complete a standard parole application form. Second, the rule provides 
that initial hearings are to be scheduled, where practicable, at least 
180 days before the prisoner's eligibility date. Current D.C. Parole 
Board practice generally provides initial hearings about 60 days prior 
to the prisoner's eligibility date. It is expected that, on August 5, 
1998, there will be a significant backlog of parole applicants for whom 
the 180 day deadline will have already passed. The Commission will hear 
these prisoners on successive dockets until compliance with this rule 
can be achieved.
    Comment to Sec. 2.72: This rule carries forth the provisions of 28 
DCMR 103 with the following changes. First, it adds a requirement that 
the examiner discuss with the prisoner the pertinent file information. 
This will ensure that the prisoner is informed of the main information 
being considered by the Commission, and given an opportunity to 
respond. Second, although the rule retains the D.C. prohibition on 
representatives at parole hearings in District of Columbia facilities, 
it allows a prisoner to have a representative at a parole hearing in a 
federal facility, consistent with the procedure for federal prisoners. 
The same applies to prehearing disclosure of file documents, which 
likewise depends upon correctional staff resources that are not 
available in District facilities. Third, although 28 DCMR 103 permits a 
prisoner's supporters to visit the Board to discuss a case at any time, 
the interim rule requires a prisoner's supporters to request an office 
visit at least 30 days before the parole hearing so that their input 
can be included in the record that the examiner will consider at the 
hearing. Office visits at other times will be permitted only on a 
showing of good

[[Page 39174]]

cause. Fourth, the rights of victims as set forth in a 1989 amendment 
to D.C. law are spelled out and amplified. Victims of violent crimes 
are given the right to appear at the parole hearing, and to submit 
testimony or a written statement. Although current D.C. procedures 
permit only a written statement, federal practice permits victims to 
testify. See Phillips v. Brennan, 969 F.2d 384 (7th Cir. 1992) (victim 
permitted to testify at parole hearing without presence of offender). 
Office visits are also permitted for victims, subject to the same 30-
day notice requirement that applies to supporters. Fifth, the rule 
follows federal law at 18 U.S.C. 4208(f) in allowing the prisoner to 
obtain a copy of the tape recording of his parole hearing.
    Comment to Sec. 2.73: This rule carries forth the statutory 
criteria for parole contained in 28 DCMR 200. In addition, it explains 
that the parole function for D.C. Code offenders rests on a premise 
somewhat different from that of the federal parole guidelines. See 
Cosgrove v. Thornburgh, 703 F. Supp. 995, 1004, n.6 (D.D.C. 1988). For 
D.C. Code offenders, the revised guidelines in Sec. 2.80 of these rules 
treat the minimum term of imprisonment imposed by the court as the 
measure of basic accountability for the offense of conviction. Only in 
unusual cases is the seriousness of the offense a basis for denial of 
parole. The normal function of parole consideration is to determine 
whether the prisoner would be ``a responsible citizen if he is returned 
to the community'' and whether ``release on parole is consistent with 
the public safety.'' See White v. Hyman, 647 A.2d 1175 (D.C. App. 
1994). Hence, this provision embodies the Commission's decision to 
maintain the existing purpose of parole for the District of Columbia.
    Comment to Sec. 2.74: This is a new rule. It requires the issuance 
of a statement of reasons for parole denial, a procedure not included 
in current District of Columbia Parole Board procedures. Federal 
practice under 18 U.S.C. 4206 is the model for this procedural reform, 
as well as for the 21-day time period for issuing the decision.
    Comment to Sec. 2.75: This rule carries forth the provisions of 28 
DCMR 104, except that the policy of setting continuances for cases by 
reference to the length of the prisoner's sentence is replaced by 
reference to the new time ranges for rehearings that are set forth in 
Sec. 2.80. In addition, the proposed rule prohibits the scheduling of a 
reconsideration hearing more than five (5) years from the date of the 
last hearing. At present, the D.C. Parole Board may order a 
reconsideration hearing exceeding this limit if it departs from its 
guidelines. Finally, the proposed rule authorizes special 
reconsideration hearings for new and significant information, and 
spells out the continuing authority of the D.C. Parole Board to revoke 
parole and set rehearing dates.
    Comment to Sec. 2.76: This rule carries forth the provisions of 28 
DCMR 201 regarding applications for a reduction of minimum term. In 
addition, it sets forth the arrangement the Commission has with the 
U.S. Attorney's Office regarding the presentation of applications for a 
reduction in a minimum term to the Superior Court.
    Comment to Sec. 2.77: This is a new rule that sets forth criteria 
and procedures for implementing the medical parole provisions at D.C. 
Code 24-261-64, 267.
    Comment to Sec. 2.78: This is a new rule that sets forth criteria 
and procedures for implementing the geriatric parole provisions at D.C. 
Code 24-261, 263-64, 267.
    Comment to Sec. 2.79: This rule carries forth the provisions of 28 
DCMR 205 in a somewhat modified form to conform to the procedure set 
forth at Sec. 2.6 of these rules. A minor substantive change is that 
the Commission will consider the underlying circumstances of the 
misconduct in setting a date for review hearing rather than set a 
parole date that is contingent on the restoration of forfeited good 
time by institutional officials.
    Comment to Sec. 2.80: This section carries forth the provisions of 
28 DCMR 204 in modified form. This revision of the D.C. Board's 
guideline system retains its fundamental three-part structure (the 
salient factor score, the total point score, and the grant/denial 
policy). The guideline system continues to serve as a measurement of 
both the degree and seriousness of the risk to the public safety 
presented in each case. The policy of permitting parole to be granted 
at initial hearings for those who merit 0-2 points on the ``total point 
score,'' and permitting parole to be granted at rehearings for those 
who merit 0-3 points, is also retained. However, the relevant factors 
listed in the point score as indicating ``seriousness of the risk'' 
have been revised substantially along with the number of points 
assigned to each relevant factor. The purpose of the revisions is to 
produce a score that better predicts the probability of violent 
offenses, and that differentiates between ordinary and extremely 
violent offenses (e.g., murder, rape, assault with serious bodily 
injury). Thus, the revised score includes factors which appear to 
indicate an increased probability that recidivism (if it occurs) will 
be of a serious nature. At the same time, the possible points for 
superior program achievement in prison also are increased.
    The primary intent is to protect the public safety, and to capture 
within the guidelines the many decisions that are now outside the 
guidelines because of the D.C. Board's well-founded concerns about the 
``seriousness of the risk.'' The Parole Commission itself has found it 
necessary to depart from the D.C. parole guidelines based on the same 
concerns. See Duckett v. U.S. Parole Commission, 795 F. Supp. 133 (M.D. 
Pa. 1992) (current offenses involved multiple separate crimes of 
violence not reflected by the point score).
    The total point score thus revised permits (in the worst-case 
scenario) a repeat offender to receive as many as 10 points. However, 
point scores only go to this level if there are extraordinary 
aggravating factors (e.g., current murder with an extensive prior 
record of violent crimes) that would otherwise justify a guideline 
departure. If the offender's past record is less extensive, the total 
point score will be correspondingly lower and will permit parole based 
on good behavior over a sufficient period of time in prison. What 
constitutes a ``sufficient period of time in prison'' is determined by 
the need to incapacitate the offender according to the risk level he or 
she presents, as reflected in the Guidelines for Time to Rehearing at 
Sec. 2.80(j).
    Comment to Sec. 2.81: This rule carries forth the provisions of 28 
DCMR 202.2, but follows federal practice by permitting an effective 
date of parole up to 9 months in advance. The D.C. Parole Board rule 
does not specify any time period. The rule also provides that parole 
dates will be set no more than 6 months in advance if placement in a 
halfway house is not required. This policy will leave the Commission 
with the flexibility to ensure adequate release planning before any 
prisoner is released on parole. Difficulties in determining the 
adequacy of release plans, in the availability of necessary halfway 
house resources, and in the adequacy of basic supervision resources, 
are presently serious issues that can impede the releases of many D.C. 
Code prisoners.
    Comment to Sec. 2.82: This rule carries forth the provisions of 28 
DCMR 208 regarding release planning. Express authority is added for the 
Commission to rescind a grant of parole if failure to produce an 
acceptable release plan persuades the Commission that the

[[Page 39175]]

release of the prisoner would lead to rapid failure in the community.
    Comment to Sec. 2.83: This rule carries forth that part of 28 DCMR 
209 that concerns release to other jurisdictions.
    Comment to Sec. 2.84: This rule carries forth the provisions of 28 
DCMR 207 pertaining to the conditions of parole.
    Comment to Sec. 2.85: This section carries forth the provisions of 
28 DCMR 207 regarding release on parole and specifies when a parole 
becomes operative, based on 28 CFR Sec. 2.29(a).
    Comment to Sec. 2.86: This rule carries forth the provisions of 28 
DCMR 212.
    Comment to Sec. 2.87: This rule supplements the District of 
Columbia parole regulations by providing for the use of federal 
reparole guidelines (in the absence of a new D.C. Code sentence). The 
current parole regulations of the District of Columbia include 
rehearing schedules for parole violators but do not provide policy 
guidance for the substantive decision to grant or deny reparole. 
Moreover, neither federal nor District of Columbia law mandates any 
difference in the basic purposes served by revocation and reparole. 
This rule will ensure that parole violators will receive consistent 
decisions, and will know from the date of their first rehearing how 
much time must be served to correct and sanction the parole failure.
    Comment to Sec. 2.88: This carries forth the operative provisions 
of 28 DCMR 101. It maintains the confidentiality of D.C. Board parole 
files while conforming the regulations to federal parole practice under 
the Privacy Act of 1974.
    Comment to Sec. 2.89: This rule sets forth the provisions from Part 
A of these rules that, except to the extent otherwise provided by law, 
shall also apply to District of Columbia Code prisoners.
    Comment to Sec. 2.90: This is a new rule that is necessary to 
clarify the status of prior orders of the D.C. Board (parole grants, 
denials, revocations, etc.) as of August 5, 1998. It maintains the 
Commission's longstanding practice of implementing prior D.C. Board 
orders when a D.C. Code offender enters federal jurisdiction, including 
rehearing dates, unless duly reconsidered and changed. See Morgan v. 
District of Columbia, 618 F. Supp. 754 (D.D.C. 1985).

The Public Comment

    The D.C. Public Defender's Service and the D.C. Prisoners' Legal 
Services Project argue that the proposed regulations will ``increase 
the measure of punishment'' for D.C. offenders, and will therefore 
violate the ex post facto clause. However, it was also acknowledged 
that the D.C. Board of Parole does not always follow its own rules. 
This acknowledgment, in effect, concedes the argument. Parole guideline 
changes, especially those that incorporate factors that are used to 
exceed the guidelines on a discretionary basis, do not offend the ex 
post facto clause. See, e.g., Davis v. Henderson, 652 A.2d 634 (D.C. 
App. 1995), Warren v. U.S. Parole Commission, 659 F.2d 183 (D.C. Cir. 
1981), Inglese v. U.S. Parole Commission, 768 F.2d 932 (7th Cir. 1985), 
and Yamamoto v. U.S. Parole Commission, 794 F.2d 1294 (8th Cir. 1986). 
Moreover, the revised guidelines are intended only to structure the use 
of paroling discretion in a more consistent manner, and not to reduce 
the decisionmaker's authority to allow individual factors to determine 
the final outcome in every case. The objective of the Commission is to 
provide a rational, research-based framework for its decisions that is 
based on a sample of actual past D.C. Board of Parole decisions.
    Other contentions are that the Commission has no authority to 
administer the Youth Rehabilitation Act (based on the proposition that 
YRA prisoners convicted of felony offenses under the D.C. Code are 
somehow not ``imprisoned felons''), that the Salient Factor Score has 
no demonstrated validity as a predictor of recidivism for D.C. 
offenders, that the United States Attorney should not be permitted to 
object when the Commission proposes to petition the sentencing court 
for reduction of a D.C. prisoner's minimum sentence, that prisoners 
should not be required to undergo the ``needless formality'' of a 
parole application, and that there should be representatives at parole 
hearings in D.C. facilities. The revised version of the Salient Factor 
Score has proved valid for D.C. Code offenders. The comment about 
representatives is understandable, but it appears that the D.C. 
Department of Corrections historically has been unwilling (or unable) 
to handle the security problems posed by outside representatives. 
Objections by the U.S. Attorney often bring to light new information 
which should be reviewed prior to filing with the court. An application 
for parole provides important information and provides evidence, at 
least, of the prisoner's ability to meet the reporting requirements of 
parole supervision.
    Other commentary was devoted to pointing out discrepancies between 
the proposed rules at Secs. 2.77 and 2.78, and the Medical and 
Geriatric Parole statute. These comments were very helpful, and the 
Commission has made revisions accordingly. There was praise for the 
Commission's proposal to conduct initial parole hearings within 180 
days of eligibility, which should reduce average prison stays for 
offenders with scores of 0-2 (indicating parole at eligibility) by 5 to 
9 months. How soon the Commission can accomplish this goal will be 
dependent, in large measure, on the D.C. Department of Corrections, and 
its ability to provide needed inmate file information in a timely 
manner.
    Finally, the Public Defender Service objected to crime victims 
being permitted to testify at parole hearings, on the theory that 
because D.C. Code 23-103 does not guarantee victims this right, 
permitting them to do so would be ultra vires. This is an erroneous 
argument because it would reduce the victim to the status of a mere 
``opponent'' of parole. A victim is more than that. A victim is both 
the primary witness to the crime and its impact, and no less a 
participant in the criminal justice process than the eligible prisoner. 
Moreover, D.C. Code 23-103A was intended to guarantee minimum rights 
and not to set limits on the Board of Parole's authority to consider 
relevant evidence. The Commission has clarified Sec. 2.72(e) 
accordingly.
    There were a few comments from individual prisoners, whose concerns 
chiefly appear to be to receive the same opportunities as federal 
prisoners, and not to be subjected to anything required by the National 
Capital Revitalization Act that would make them serve more time in 
prison.

Implementation

    The regulations set forth below will be made effective as interim 
rules on August 5, 1998, with a further period for public comment. The 
rules are applicable only to prisoners serving sentences imposed under 
the District of Columbia Code, except that the revised Salient Factor 
Score (SFS-98) in Sec. 2.20 will be applied to U.S. Code prisoners at 
all hearings held on or after August 5, 1998, pursuant to the 
Commission's standard retroactivity policy.
    The Commission will evaluate the interim rules in the light of 
further public comment and operational experience before adopting final 
rules. The interim rules will govern all D.C. Code parole hearings and 
related matters coming before the Commission on or after August 5, 
1998, with the exception of the guidelines at Sec. 2.80, which will be 
applied only to D.C. Code prisoners who are given initial parole 
hearings on or after August 5, 1998. See Sec. 2.80(e). Prisoners 
serving aggregated U.S./D.C. Code sentences will continue

[[Page 39176]]

to be evaluated under (redesignated) Sec. 2.65.

Good Cause Finding

    The Commission is making these interim rules effective less than 30 
days from the date of this publication for good cause pursuant to 5 
U.S.C. 553(d)(3). First, August 5, 1998, is the deadline established by 
the National Capital Revitalization Act for the Commission to assume 
the function governed by the regulations. Second, the empirical 
research found necessary by the Commission to validate its proposed 
guidelines as a reliable prediction device for violent recidivism, and 
to verify the likely impact of these guidelines on prison population 
levels, proved more complex and difficult to accomplish than originally 
anticipated. Final results were not available for the Commission's 
review until June 30, 1998, and this delayed final voting by the 
Commission until July 9, 1998.

Executive Order 12866 and Regulatory Flexibility Statement

    The U.S. Parole Commission has determined that this interim rule is 
not a significant rule within the meaning of Executive Order 12866, and 
the interim rule has, accordingly, not been reviewed by the Office of 
Management and Budget. The interim 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).

List of Subjects in 28 CFR Part 2

    Administrative practice and procedure, Probation and parole, 
Prisoners.

The Amendment

    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).

Subpart A--United States Code Prisoners and Parolees

    2. Section 2.62 is redesignated as Sec. 2.68.
    3. Sections 2.1 through 2.67 (except 2.62) are designated as 
subpart A, and Secs. 2.63 through 2.67 are redesignated as Secs. 2.62 
through 2.66. The heading for subpart A is added as set forth above.
    4. Section 2.20 is amended by removing Item F from the Salient 
Factor Scoring Manual (HISTORY OF HEROIN/OPIATE DEPENDENCE), and by 
redesignating Item G (OLDER OFFENDERS) as Item F. In addition, Item C 
is revised to read as follows:


Sec. 2.20  Paroling policy guidelines; Statement of general policy.

* * * * *
ITEM C. AGE AT COMMENCEMENT OF THE CURRENT OFFENSE/PRIOR COMMITMENTS OF 
MORE THAN THIRTY DAYS (ADULT OR JUVENILE)
    C.1  If the subject was 26 years of age or more at the 
commencement of the current offense and has 3 or fewer prior 
commitments, score 3; if four prior commitments, score 2; if five or 
more prior commitments, score 1.
    C.2  If the subject was 22-25 years of age at the commencement 
of the current offense and has three or fewer prior commitments, 
score 2; if four prior commitments, score 1; if five or more prior 
commitments, score 0.
    C.3  If the subject was 20-21 years of age at the commencement 
of the current offense and has three or fewer prior commitments, 
score 1; if four or more prior commitments, score 0.
    C.4  If the subject was 19 years of age or less at the 
commencement of the current offense, score 0.
    C.5  Definitions (a) Use the age of the commencement of the 
subject's current offense behavior, except as noted under the 
special instructions for probation/parole/confinement/escape status 
violators.
    (b) Prior commitment is defined under Item B.
* * * * *

Subpart B--Transfer Treaty Prisoners and Parolees

    5. Redesignated Sec. 2.68 is designated as subpart B. Section 2.69 
is added to Subpart B and reserved. The heading for subpart B is added 
as set forth above.
    6. Subpart C is added to consist of Secs. 2.70 through 2.89 to read 
as follows:

Subpart C--District of Columbia Code Prisoners and Parolees

Sec.
2.70  Authority and functions of the U.S. Parole Commission with 
respect to District of Columbia Code offenders.
2.71  Application for parole.
2.72  Hearing procedure.
2.73  Parole suitability criteria.
2.74  Decision of the Commission.
2.75  Reconsideration proceedings.
2.76  Reduction in minimum sentence.
2.77  Medical parole.
2.78  Geriatric parole.
2.79  Good time forfeiture.
2.80  Guidelines for D.C. Code offenders.
2.81  Effective date of parole.
2.82  Release planning.
2.83  Release to other jurisdictions.
2.84  Conditions of release.
2.85  Release on parole.
2.86  Mandatory release.
2.87  Reparole.
2.88  Confidentiality of parole records.
2.89  Miscellaneous provisions.
2.90  Prior orders of the Board of Parole.

Subpart C--District of Columbia Code Prisoners and Parolees


Sec. 2.70  Authority and functions of the U.S. Parole Commission with 
respect to District of Columbia Code offenders.

    (a) The U.S. Parole Commission shall exercise authority over 
District of Columbia Code offenders pursuant to Section 11231 of the 
National Capital Revitalization and Self-Government Improvement Act of 
1997, P.L. 105-33, and D.C. Code 24-209. The rules in this Subpart 
shall govern the operation of the U.S. Parole Commission with respect 
to D.C. Code offenders and are the pertinent parole rules of the 
District of Columbia as amended and supplemented pursuant to Section 
11231(a)(1) of the Act.
    (b) The Commission shall have sole authority to grant parole, and 
to establish the conditions of release, for all District of Columbia 
Code prisoners who are serving sentences for felony offenses, and who 
are not otherwise ineligible for parole by statute, including offenders 
who have been returned to prison upon the revocation of parole or 
mandatory release, wherever confined. (D.C. Code 24-208). The above 
authority shall include youth offenders who are committed to prison for 
treatment and rehabilitation based on felony convictions under the D.C. 
Code. (D.C. Code 24-804(a)).
    (c) The Commission shall have authority to recommend to the 
Superior Court of the District of Columbia a reduction in the minimum 
sentence of a District of Columbia Code prisoner, if the Commission 
deems such recommendation to be appropriate (D.C. Code 24-201(c)).
    (d) The Commission shall have authority to grant parole to a 
prisoner who is found to be geriatric, permanently incapacitated, or 
terminally ill, notwithstanding the minimum term imposed by the 
sentencing court (D.C. Code 24-263 through 267).
    (e) The Board of Parole of the District of Columbia will continue 
to have jurisdiction over District of Columbia Code offenders who have 
been released to parole or mandatory release supervision, including the 
authority to return such offenders to prison upon an order of 
revocation. The jurisdiction and authority of the Board over such 
offenders will be transferred to the U.S. Parole Commission by August 
5, 2000, pursuant to Section 11231(a)(2) of the Act.

[[Page 39177]]

    (f) When the D.C. Board of Parole has issued a warrant for a 
parolee who has been confined in a federal prison to serve a new U.S. 
or D.C. Code sentence, the U.S. Parole Commission shall have 
jurisdiction to revoke parole and to determine the disposition of such 
warrant. (D.C. Code 24-209.)


Sec. 2.71  Application for parole.

    (a) A prisoner (including a committed youth offender) desiring to 
apply for parole shall execute an application form as prescribed by the 
Commission. Such forms shall be available at each institution and shall 
be provided to a prisoner who is eligible for parole consideration. The 
Commission may then conduct an initial hearing or grant an effective 
date of parole on the record. A prisoner who receives an initial 
hearing need not apply for subsequent hearings.
    (b) To the extent practicable, the initial hearing for an eligible 
prisoner who has applied for parole shall be held at least 180 days 
prior to the prisoner's date of eligibility for parole.
    (c) A prisoner may knowingly and intelligently waive any parole 
consideration on a form provided for that purpose. A prisoner who 
declines either to apply for or waive parole consideration shall be 
deemed to have waived parole consideration.
    (d) A prisoner who waives parole consideration may later apply for 
parole and be heard during the next visit of the Commission to the 
institution at which the prisoner is confined, provided that the 
prisoner has applied for parole at least 60 days prior to the first day 
of the month in which such visit of the Commission occurs. In no event, 
however, shall such prisoner be heard at an earlier date than that set 
forth in paragraph (b) of this section.


Sec. 2.72  Hearing procedure.

    (a) Each eligible prisoner who has applied for parole shall appear 
in person for a hearing before an examiner of the Commission. The 
examiner shall review with the prisoner the guidelines at Sec. 2.80, 
and shall discuss with the prisoner such information as the examiner 
deems relevant, including the prisoner's offense behavior, criminal 
history, institutional record, health status, release plans, and 
community support. If the examiner determines that the available file 
material is not adequate for this purpose the examiner may order the 
hearing to be postponed to the next docket so that the missing 
information can be requested.
    (b) Parole hearings may be held in District of Columbia facilities 
(including District of Columbia contract facilities) and federal 
facilities (including federal contract facilities).
    (c) A prisoner appearing for a parole hearing in a District of 
Columbia facility shall not be accompanied by counsel, any relative or 
friend, or any other person (except a staff member of that facility). A 
prisoner appearing for a parole hearing in a federal facility may have 
a representative pursuant to Sec. 2.13(b) of this part.
    (d) Rehearing disclosure of file material will be available to 
prisoners and their representatives only in the case of prisoners 
confined in federal facilities, and pursuant to Sec. 2.55 of this part.
    (e) A victim of a crime of violence, as defined in D.C. Code 23-
103a(a)(3), or a victim of any other crime, or a representative from 
the immediate family of a victim if the victim has died, shall have the 
right
    (1) To be present at the parole hearings of each offender who 
committed the crime, and
    (2) To testify and/or offer a written or recorded statement as to 
whether or not parole should be granted, including information and 
reasons in support of such statement. A written statement may be 
submitted at the hearing or provided separately. The prisoner may be 
excluded from the hearing room during the appearance of a victim or 
representative who gives testimony. A victim or representative may also 
request permission to appear for an office hearing conducted by an 
examiner (or other staff member) in lieu of appearing at a parole 
hearing. Whenever new and significant information is provided under 
this rule, the hearing examiner will summarize the information at the 
parole hearing and will give the prisoner an opportunity to respond. 
Such summary shall be consistent with a reasonable request for 
confidentiality by the victim or representative.
    (f) Attorneys, family members, relatives, friends, or other 
interested persons desiring to submit information pertinent to any 
prisoner may do so by forwarding letters or memoranda to the offices of 
the Commission prior to a scheduled hearing. Such persons may also 
request permission to appear at the offices of the Commission to speak 
to a Commission staff member, provided such request is received at 
least 30 days prior to the scheduled hearing. The purpose of this 
office visit will be to supplement the Commission's record with 
pertinent factual information concerning the prisoner, which shall be 
placed in the record for consideration at the hearing.
    (g) An office visit at a time other than set forth in paragraph (f) 
of this section may be authorized only if the Commission finds good 
cause based upon a written request setting forth the nature of the 
information to be discussed. See Sec. 2.22 of this part. 
Notwithstanding the above restriction on office visits, written 
information concerning a prisoner may be submitted to the offices of 
the Commission at any time.
    (h) A full and complete recording of every parole hearing shall be 
retained by the Commission. Upon a request pursuant to Sec. 2.56, the 
Commission shall make available to any eligible prisoner such record as 
the Commission has retained of the hearing.


Sec. 2.73  Parole suitability criteria.

    (a) In accordance with D.C. Code 24-204(a), the Commission shall be 
authorized to release a prisoner on parole in its discretion after he 
or she has served the minimum term of the sentence imposed, if the 
following criteria are met:
    (1) The prisoner has substantially observed the rules of the 
institution;
    (2) There is reasonable probability that the prisoner will live and 
remain at liberty without violating the law; and
    (3) In the opinion of the Commission, the prisoner's release is not 
incompatible with the welfare of society.
    (b) It is the policy of the Commission with respect to District of 
Columbia Code offenders that the minimum term imposed by the sentencing 
court presumptively satisfies the need for punishment in respect to the 
crime of which the prisoner has been convicted, and that the 
responsibility of the Commission is to account for the degree and the 
seriousness of the risk that the release of the prisoner would entail. 
This responsibility is carried out by reference to the Salient Factor 
Score and the Point Assignment Table at Sec. 2.80 of this part. 
However, in unusual cases, parole may be denied based upon the gravity 
of the offense.


Sec. 2.74  Decision of the Commission.

    (a) Following each initial or subsequent hearing, the Commission 
shall render a decision granting or denying parole, and shall provide 
the prisoner with a notice of action that includes an explanation of 
the reasons for the decision. The decision shall ordinarily be issued 
within 21 days of the hearing, excluding weekends and holidays.
    (b) Whenever a decision is rendered within the applicable guideline 
established by these rules, it will be

[[Page 39178]]

deemed a sufficient explanation of the Commission's decision for the 
notice of action to set forth how the guideline was calculated. If the 
decision is a departure from the guidelines, the notice of action shall 
include the reasons for such departure.
    (c) Relevant issues of fact shall be resolved by the Commission in 
accordance with Sec. 2.19(c) of this part.


Sec. 2.75  Reconsideration proceedings.

    (a) If the Commission denies parole, it shall establish an 
appropriate reconsideration date in accordance with the provisions of 
Sec. 2.80. 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 there is no docket of hearings scheduled for 
the month specified. If the prisoner's mandatory release date will 
occur before the reconsideration date deemed appropriate by the 
Commission pursuant 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''). The first reconsideration date shall be 
calculated from the prisoner's eligibility date; any subsequent 
reconsideration dates shall be calculated from the date of the last 
hearing. However, when the prisoner has waived the initial hearing, the 
first reconsideration shall be calculated from the initial hearing 
date.
    (b) Notwithstanding the provisions of paragraph (a) 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.
    (c) The scheduling of a reconsideration date does not imply that 
parole will be granted at such hearing.
    (d) Prior to the parole reconsideration date, 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 conducting the scheduled in-person hearing.
    (e) Notwithstanding a previously established reconsideration date, 
the Commission may also 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.
    (f) Upon entering an order revoking parole, the Board of Parole of 
the District of Columbia may grant an immediate reparole, or order the 
parole violator to be returned to prison. In the latter case, the Board 
will order a reconsideration date pursuant to its regulations. The 
Commission shall have sole authority to grant or deny reparole to an 
offender who has been returned to prison upon an order revoking parole.


Sec. 2.76  Reduction in minimum sentence.

    (a) A prisoner who has served three (3) or more years of the 
minimum term of his or her sentence may request the Commission to file 
an application with the sentencing court for a reduction in the minimum 
term pursuant to D.C. Code 24-201c. The prisoner's request to the 
Commission shall be in writing and shall state the reasons that the 
prisoner believes such request should be granted. The Commission shall 
require the submission of a progress report before approving such a 
request.
    (b) Approval of a prisoner's request under this section shall 
require the concurrence of a majority of the Commissioners.
    (c) If the Commission approves a prisoner's request under this 
section, an application for a reduction in the prisoner's minimum term 
shall be forwarded to the U.S. Attorney for the District of Columbia 
for filing with the sentencing court. If the U.S. Attorney objects to 
the Commission's recommendation, the U.S. Attorney shall provide the 
government's objections in writing for consideration by the Commission. 
If, after consideration of the material submitted, the Commission 
declines to reconsider its previous decision, the U.S. Attorney shall 
file the application with the sentencing court.
    (d) If a prisoner's request under this section is denied by the 
Commission, there shall be a waiting period of two (2) years before the 
Commission will again consider the prisoner's request, absent 
exceptional circumstances.


Sec. 2.77  Medical parole.

    (a) Upon receipt of a report from the institution in which the 
prisoner is confined certifying that the prisoner is terminally ill, or 
is permanently and irreversibly incapacitated by a physical or medical 
condition that is not terminal, the Commission shall determine whether 
or not to release the prisoner on medical parole. Release on medical 
parole may be ordered by the Commission at any time, whether or not the 
prisoner has completed his or her minimum sentence. Consideration for 
medical parole shall be in addition to any other parole for which a 
prisoner may be eligible.
    (b) A prisoner may be granted a medical parole on the basis of 
terminal illness if:
    (1) The institution's medical staff has provided the Commission 
with a reasonable medical judgment that the prisoner is within six 
months of death due to an incurable illness or disease; and
    (2) The Commission finds that:
    (i) The prisoner will not be a danger to himself or others; and
    (ii) Release on parole will not be incompatible with the welfare of 
society.
    (c) A prisoner may be granted a medical parole on the basis of 
permanent and irreversible incapacitation only if the Commission finds 
that:
    (1) The prisoner's condition is such as to render the prisoner 
incapable of continuing his criminal career;
    (2) The prisoner will not be a danger to himself or others; and
    (3) Release on parole will not be incompatible with the welfare of 
society.
    (d) The seriousness of the prisoner's crime shall be considered in 
determining whether or not a medical parole should be granted.
    (e) A prisoner, or the prisoner's representative, may apply for a 
medical parole by submitting an application to the institution medical 
staff, who shall forward the application accompanied by a medical 
report and any recommendations within 15 days. The Commission shall 
render a decision within 15 days of receiving the application and 
report.
    (f) A prisoner, the prisoner's representative, or the institution 
may request the Commission to reconsider its decision on the basis of 
changed circumstances.
    (g) Notwithstanding any other provision of this section--
    (1) A prisoner who has been convicted of first degree murder or who 
has been sentenced for a crime committed while armed under D.C. Code 
22-2903, 22-3202, or 22-3204(b), shall not be eligible for medical 
parole. (D.C. Code 24-267); and
    (2) A prisoner shall not be eligible for medical parole on the 
basis of a physical or medical condition that existed at the time the 
prisoner was sentenced (D.C. Code 24-262).


Sec. 2.78  Geriatric parole.

    (a) Upon receipt of a report from the institution in which the 
prisoner is confined that a prisoner who is at least 65 years of age 
has a chronic infirmity,

[[Page 39179]]

illness, or disease related to aging, the Commission shall determine 
whether or not to release the prisoner on geriatric parole. Release on 
geriatric parole may be ordered by the Commission at any time, whether 
or not the prisoner has completed his or her minimum sentence. 
Consideration for geriatric parole shall be in addition to any other 
parole for which a prisoner may be eligible.
    (b) A prisoner may be granted a geriatric parole if the Commission 
finds that:
    (1) There is a low risk that the prisoner will commit new crimes; 
and
    (2) The prisoner's release would not be incompatible with the 
welfare of society.
    (c) The seriousness of the prisoner's crime, and the age at which 
it was committed, shall be considered in determining whether or not a 
geriatric parole should be granted prior to completion of a prisoner's 
minimum sentence.
    (d) A prisoner, or a prisoner's representative, may apply for a 
geriatric parole by submitting an application to the institution 
medical staff, who shall forward the application accompanied by a 
medical report and any recommendations within 30 days. The Commission 
shall render a decision within 30 days of receiving the application and 
report.
    (e) In determining whether or not to grant a geriatric parole, the 
Commission shall consider the following factors:
    (1) Age of the prisoner;
    (2) Severity of illness, disease, or infirmities;
    (3) Comprehensive health evaluation;
    (4) Institutional behavior;
    (5) Level of risk for violence;
    (6) Criminal history; and
    (7) Alternatives to maintaining geriatric long-term prisoners in 
traditional prison settings.
    (D.C. Code 24-265(c)(1)-(7)).
    (f) A prisoner, the prisoner's representative, or the institution, 
may request the Commission to reconsider its decision on the basis of 
changed circumstances.
    (g) Notwithstanding any other provision of this section--
    (1) A prisoner who has been convicted of first degree murder or who 
has been sentenced for a crime committed while armed under D.C. Code 
22-2903, 22-3202, or 22-3204(b), shall not be eligible for geriatric 
parole (D.C. Code 24-267); and
    (2) A prisoner shall not be eligible for geriatric parole on the 
basis of a physical or medical condition that existed at the time the 
prisoner was sentenced (D.C. Code 24-262).


Sec. 2.79  Good time forfeiture.

    Although a forfeiture of good time will not bar a prisoner from 
receiving a parole hearing, D.C. Code 24-204 permits the Commission to 
parole only those prisoners who have substantially observed the rules 
of the institution. Consequently, the Commission will consider a grant 
of parole for a prisoner with forfeited good time only after a thorough 
review of the circumstances underlying the disciplinary infraction(s) 
and if the Commission is satisfied that the parole date set has 
required a period of imprisonment sufficient to outweigh the 
seriousness of the prisoner's misconduct.


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

    (a) Introduction. 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 the pre- and 
post-incarceration factors described in the Point Assignment Table set 
forth in paragraph (f) of this section. Decisions outside the 
guidelines may be made, where warranted, pursuant to paragraph (m) of 
this section.
    (b) 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 of this part. 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.
    (c) 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. The Commission's general policy shall be 
that 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 all hearings. A persistent record of lesser offenses may also be 
counted as negative institutional behavior, whether 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.
    (d) 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. 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.
    (e) Implementation. These guidelines shall be applied to all 
prisoners who are given initial parole hearings on or after August 5, 
1998. 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 section. The Commission may also correct any error 
in the calculation of the D.C. Board's guidelines.
    (f) Point assignment table.
    Add the applicable points from Categories I-III to determine the 
base point score. Then add or subtract the points from Categories IV 
and V to determine the total point score.

[[Page 39180]]



                         Point Assignment Table                         
------------------------------------------------------------------------
                                                                        
------------------------------------------------------------------------
               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
------------------------------------------------------------------------
           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 or more prior offenses................................           +4
B. Violence in current offense, and any felony violence in              
 one prior offense.........................................           +3
C. Violence in current offense.............................           +2
D . No violence in current offense and any felony violence              
 in two or more prior offenses.............................           +2
E. Possession of firearm in current offense if current                  
 offense is not scored as a crime of violence..............           +2
F. No violence in current offense and any felony violence               
 in one prior offense......................................           +1
                                                                        
    Category III: Death of Victim or High Level Violence                
                                                                        
Note: Use highest applicable subcategory. If no subcategory             
 is applicable, score = 0.                                              
A. Current offense was high level or other violence with                
 death of victim resulting.................................           +3
B. Current offense involved attempted murder...............           +2
C. Current offense was other high level violence...........           +1
    Base Point Score (Total of Categories I-III)...........     ________
                                                                        
        Category IV: Negative Institutional Behavior                    
                                                                        
Note: Use the highest applicable subcategory. If no                     
 subcategory is applicable, score = 0.                                  
A. Negative institutional behavior involving: (1) 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..........           +2
B. Other negative institutional behavior...................           +1
                                                                        
              Category V: Program Achievement                           
                                                                        
Note: Use the highest applicable subcategory. If no                     
 subcategory is applicable, score = 0.                                  
A. Acceptable institutional behavior with no program                    
 achievement...............................................            0
B. Acceptable institutional behavior with ordinary program              
 achievement...............................................           -1
C. Acceptable institutional behavior with superior program              
 achievement...............................................           -2
                                                            ------------
    Total Point Score (Total of Categories I-V)............     ________
------------------------------------------------------------------------

    (g) Definitions and instructions for application of point 
assignment score.
    (1) Salient factor score means the salient factor score set forth 
at Sec. 2.20 of this part.
    (2) High level violence in Category III means any of the following 
offenses--
    (i) Murder:
    (ii) Voluntary manslaughter;
    (iii) Arson of an occupied (or potentially occupied) building;
    (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 if a victim was in the 
residence at 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) Any felony resulting in mayhem, malicious disfigurement, or 
other serious bodily injury (See Definition No. 3);
    (x) Any offense defined below as other violence 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.
    (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).
    (7) Category IIE applies whenever a firearm is possessed by the 
offender during, or used by the offender to commit, any offense that is 
not scored under Category IIA, B, C, or 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.

[[Page 39181]]

    (9) 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 still be assessed under Category IVA or B for other 
disciplinary infractions.
    (10) Superior program achievement means program achievement that is 
beyond the level that the prisoner might ordinarily be expected to 
accomplish. The Commission may, in its discretion, grant more than a 2 
point deduction in the most clearly exceptional cases.
    (h) 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 (j) of this     
                                           section:                     
------------------------------------------------------------------------

    (i) 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 (j) of   
                                           this section, whichever is   
                                           less.                        
------------------------------------------------------------------------

    (j) 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 a change in the prisoner's total 
point score, the Commission may nonetheless deny or rescind parole and 
render a decision based on the guideline ranges at Sec. 2.36 of this 
part.
    (k) 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 (j) of
                                           this section.                
------------------------------------------------------------------------

    (l) 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.       
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 
                                           (j) of this section,         
                                           whichever is less.           
------------------------------------------------------------------------


[[Page 39182]]

    (2) Prison officials may in any case recommend an earlier rehearing 
date than ordered by the Commission if Commission's program objectives 
have been met.
    (m) Decisions outside the guidelines--All offenders.
    (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 parole candidate 
notwithstanding the guidelines, or to schedule a reconsideration 
hearing at a time different from that indicated in paragraph (j) of 
this section. 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.
    (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) Repeated failure under supervision (pretrial release, 
probation, or parole);
    (B) Lengthy history of criminally related substance (drug or 
alcohol) abuse; 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) Extensive record of violence beyond that taken into account in 
the guidelines;
    (B) Current offense aggravated by extraordinary criminal 
sophistication orleadership role;
    (C) Unusual cruelty (beyond that accounted for by scoring the 
offense as high level violence), or predation upon extremely vulnerable 
victim;
    (D) Unusual degree of violence attempted or committed in relation 
to type of current offense; or
    (E) Unusual magnitude of offense in terms of multiple victims, 
money, drugs, weapons, or other commodities involved.
    (3) Factors that may warrant a decision below the guideline 
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) Substantial cooperation with the government that has not been 
otherwise rewarded;
    (B) Substantial period in custody on other sentence(s) or 
additional committed sentences sufficient to warrant a finding that the 
offender meets the criteria for parole.


Sec. 2.81  Effective date of parole.

    (a) A parole release date may be granted up to nine months from the 
date of the hearing in order to permit placement in a halfway house or 
to allow for release planning. Otherwise, a grant of parole shall 
ordinarily be effective not more than six months from the date of the 
hearing.
    (b) Except in the case of a medical or geriatric parole, a parole 
that is granted prior to the completion of the prisoner's minimum term 
shall not become effective until the prisoner becomes eligible for 
release on parole.


Sec. 2.82  Release planning.

    (a) All grants of parole shall be conditioned on the development of 
a suitable release plan and the approval of that plan by the 
Commission. A parole certificate shall not be issued until a release 
plan has been approved by the Commission. In the case of mandatory 
release, the Commission shall review each prisoner's release plan to 
determine whether the imposition of any special conditions should be 
ordered to promote the prisoner's rehabilitation and protect the public 
safety.
    (b) If a parole date has been granted, but the prisoner has not 
submitted a proposed release plan, the appropriate correctional or 
supervision staff shall assist the prisoner in formulating a release 
plan for investigation.
    (c) After investigation by offender supervision staff, the proposed 
release plan shall be submitted to the Commission 30 days prior to the 
prisoner's parole or mandatory release date.
    (d) The Commission may retard a parole date for purposes of release 
planning for up to 120 days without a hearing. If efforts to formulate 
an acceptable release plan prove futile by the expiration of such 
period, or if the Offender Supervision staff reports that there are 
insufficient resources to provide effective supervision for the 
individual in question, the Commission shall be promptly notified in a 
detailed report. If the Commission does not order the prisoner to be 
paroled, the Commission shall suspend the grant of parole and conduct a 
reconsideration hearing on the next available docket. Following such 
reconsideration hearing, the Commission may deny parole if it finds 
that the release of the prisoner without a suitable plan would fail to 
meet the criteria set forth in Sec. 2.73 of this part. However, if the 
prisoner subsequently presents an acceptable release plan, the 
Commission may reopen the case and issue a new grant of parole.
    (e) The following shall be considered in the formulation of a 
suitable release plan:
    (1) Evidence that the parolee will have an acceptable residence.
    (2) Evidence that the parole will be legitimately employed as soon 
as released; provided, that in special circumstances, the requirement 
for immediate employment upon release may be waived by the Commission.
    (3) Evidence that the necessary aftercare will be available for 
parolees who are ill, or who have any other demonstrable problems for 
which special care is necessary, such as hospital facilities or other 
domiciliary care; and
    (4) Evidence of availability of, and acceptance in, a community 
program in those cases where parole has been granted conditioned upon 
acceptance or participation in a specific community program.


Sec. 2.83  Release to other jurisdictions.

    The Commission, in its discretion, may parole any individual from a 
facility of the District of Columbia, to live and remain in a 
jurisdiction other than the District of Columbia.


Sec. 2.84  Conditions of release.

    (a) Parole is granted subject to the conditions imposed by the 
Commission as set forth in the certificate of parole. These conditions 
shall include, but not be limited to, the following. The parolee must:
    (1) Obey all laws;
    (2) Report immediately upon release to his or her assigned 
supervision office for instructions;
    (3) Remain within the geographic limits fixed in the parole 
certificate unless official approval is obtained;
    (4) Refrain from visiting illegal establishments;

[[Page 39183]]

    (5) Refrain from possessing, selling, purchasing, manufacturing or 
distributing any controlled substance, or related paraphernalia;
    (6) Refrain from using any controlled substance or drug 
paraphernalia unless such usage is pursuant to a lawful order of a 
practitioner and the parolee promptly notifies the Commission and his 
or her supervision officer of same;
    (7) Be screened for the presence of controlled substances by 
appropriate tests as may be required by the Board of Parole or the 
Supervision Officer;
    (8) Refrain from owning, possessing, using, selling, or having 
under his or her control any firearm or other deadly weapon;
    (9) Find and maintain legitimate employment, and support legal 
dependents;
    (10) Keep the supervision officer informed at all times relative to 
residence and work, and report all arrests;
    (11) Refrain from entering into any agreement to act as an informer 
or special agent for a law enforcement agency without permission from 
the supervision authority; and
    (12) Cooperate with the officials responsible for his or her 
supervision and carry out all instructions of his or her supervision 
officer and such special conditions as may have been imposed.
    (b) The Commission may add to, modify, or delete any condition of 
parole at any time prior to the release of the offender. Following 
delivery of the parole or mandatory release certificate, such 
jurisdiction is vested in the Board of Parole of the District of 
Columbia until that jurisdiction is transferred to the Commission on or 
before August 5, 2000.


Sec. 2.85  Release on parole.

    (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 and deny a parole 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 drug treatment program infractions) for up to 
120 days without a hearing.
    (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 
subject to the jurisdiction of the Board of Parole of the District of 
Columbia.


Sec. 2.86  Mandatory release.

    (a) When a prisoner has been denied parole at the initial hearing 
and all subsequent considerations, or parole consideration is expressly 
precluded by statute, the prisoner shall be released at the expiration 
of his or her imposed sentence less the time deducted for any good time 
allowances provided by statute.
    (b) Any prisoner having served his or her term or terms less 
deduction for good time shall, upon release, be deemed to be released 
on parole until the expiration of the maximum term or terms for which 
he or she was sentenced, except that if the offense of conviction was 
committed before April 11, 1987, such expiration date shall be less one 
hundred eighty (180) days. Every provision of this part relating to an 
individual on parole shall be deemed to include individuals on 
mandatory release.
    (c) Each prisoner released in accordance with this section shall be 
subject to parole supervision upon the authorized delivery of a 
certificate of mandatory release.


Sec. 2.87  Reparole.

    Each decision to grant or deny reparole shall be made by reference 
to the Commission's reparole guidelines at Sec. 2.21 of this part, 
which shall include the establishment of a presumptive or effective 
release date pursuant to Sec. 2.12(b) and interim hearings pursuant to 
Sec. 2.14. However, if the prisoner is also eligible for parole on a 
new D.C. Code felony sentence that has been aggregated with the 
prisoner's parole violation term, the guidelines at Sec. 2.80 shall be 
applied in lieu of such provisions. Reparole hearings shall be 
conducted according to the procedures set forth in Sec. 2.72 of this 
part.


Sec. 2.88  Confidentiality of parole records.

    (a) Consistent with the Privacy Act of 1974 (5 U.S.C. 552(b)), the 
contents of parole records shall be confidential and shall not be 
disclosed outside the Commission except as provided below.
    (b) Information that is subject to release to the general public 
without the consent of the prisoner shall be limited to the information 
specified in Sec. 2.37(c) of this part.
    (c) Information other than as described in paragraph (b) may be 
disclosed without the consent of the prisoner only pursuant to the 
provisions of the Privacy Act of 1974 (5 U.S.C. 552(b)). See Sec. 2.56 
of this part.


Sec. 2.89  Miscellaneous provisions.

    Except to the extent otherwise provided by law, the following 
sections in subpart A of this part are also applicable to District of 
Columbia Code offenders:
    2.5  Sentence aggregation.
    2.7  Committed fines and restitution orders.
    2.8  Mental competency procedures.
    2.10  Date service of sentence commences.
    2.16  Parole of prisoner in State, local, or territorial 
institution.
    2.19  Information considered.
    2.22  Communication with Commission.
    2.23  Delegation to hearing examiners.
    2.32  Parole to local or immigration detainers.
    2.34  Rescission of parole.
    2.56  Disclosure of Parole Commission file.
    2.66  Aggregated U.S. and D.C. Code sentences.


Sec. 2.90  Prior orders of the Board of Parole.

    Any prior order entered by the Board of Parole of the District of 
Columbia shall be accorded the status of an order of the Parole 
Commission unless duly reconsidered and changed by the Commission at a 
regularly scheduled hearing. It shall not constitute grounds for 
reopening a case that the prisoner is subject to an order of the Board 
of Parole that fails to conform to a provision of this part.

    Dated: July 15, 1998.
Michael J. Gaines,
Chairman, U.S. Parole Commission.
[FR Doc. 98-19356 Filed 7-20-98; 8:45 am]
BILLING CODE 4410-31-P