39172 Federal Register / Vol. 63, No. 139 /Tuesday, July 21, 1998 /Rules and Regulations

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.

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 SelfGovernment 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 nonpredictive. 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
Federal Register / Vol. 63, No. 139 /Tuesday, July 21, 1998 /Rules and Regulations 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 § 2.80 will not increase

overall prison time or produce more

prison overcrowding. The rehearing

guidelines at § 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

§ 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 § 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 § 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 § 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
39174 Federal Register / Vol. 63, No. 139 /Tuesday, July 21, 1998 /Rules and Regulations

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 § 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

§ 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 § 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 § 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

§ 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 § 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 § 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 § 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 § 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 § 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 § 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

§ 2.80(j).

Comment to § 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 § 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
Federal Register / Vol. 63, No. 139 /Tuesday, July 21, 1998 /Rules and Regulations 39175

release of the prisoner would lead to

rapid failure in the community.

Comment to § 2.83: This rule carries

forth that part of 28 DCMR 209 that

concerns release to other jurisdictions.

Comment to § 2.84: This rule carries

forth the provisions of 28 DCMR 207

pertaining to the conditions of parole.

Comment to § 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 § 2.29(a).

Comment to § 2.86: This rule carries

forth the provisions of 28 DCMR 212.

Comment to § 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 § 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 § 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 § 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 §§ 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

§ 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 § 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 § 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

§ 2.80(e). Prisoners serving aggregated

U.S./D.C. Code sentences will continue
39176 Federal Register / Vol. 63, No. 139 /Tuesday, July 21, 1998 /Rules and Regulations

to be evaluated under (redesignated)

§ 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

§ 2.68.

3. Sections 2.1 through 2.67 (except

2.62) are designated as subpart A, and

§§ 2.63 through 2.67 are redesignated as

§§ 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:

§ 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 § 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

§§ 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

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

§ 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.

§ 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 § 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

§ 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 § 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 § 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 § 2.56, the Commission

shall make available to any eligible

prisoner such record as the Commission

has retained of the hearing.

§ 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 § 2.80 of

this part. However, in unusual cases,

parole may be denied based upon the

gravity of the offense.

§ 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
39178 Federal Register / Vol. 63, No. 139 /Tuesday, July 21, 1998 /Rules and Regulations

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 § 2.19(c) of this part.

§ 2.75 Reconsideration proceedings.

(a) If the Commission denies parole, it

shall establish an appropriate

reconsideration date in accordance with

the provisions of § 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 § 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 § 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.

§ 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.

§ 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).

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

§ 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.

§ 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

§ 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.
39180 Federal Register / Vol. 63, No. 139 /Tuesday, July 21, 1998 /Rules and Regulations

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) .................................................................................................................................... llll

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) ..................................................................................................................................... llll

(g) Definitions and instructions for

application of point assignment score.

(1) Salient factor score means the

salient factor score set forth at § 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.
Federal Register / Vol. 63, No. 139 /Tuesday, July 21, 1998 /Rules and Regulations 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 § 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:

Base point score

(Categories I through III)

Months to

Rehearing

0–4 ............................................ 12–18

5 ................................................ 18–24

6 ................................................ 18–24

7 ................................................ 18–24

8 ................................................ 18–24

9 ................................................ 22–28

Base point score

(Categories I through III)

Months to

Rehearing

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 § 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 § 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.
39182 Federal Register / Vol. 63, No. 139 /Tuesday, July 21, 1998 /Rules and Regulations

(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 postincarceration 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.

§ 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.

§ 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 § 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.

§ 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.

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

§ 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.

§ 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.

§ 2.87 Reparole.

Each decision to grant or deny

reparole shall be made by reference to

the Commission’s reparole guidelines at

§ 2.21 of this part, which shall include

the establishment of a presumptive or

effective release date pursuant to

§ 2.12(b) and interim hearings pursuant

to § 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 § 2.80

shall be applied in lieu of such

provisions. Reparole hearings shall be

conducted according to the procedures

set forth in § 2.72 of this part.

§ 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 § 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 § 2.56 of this part.

§ 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.

§ 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