[Federal Register Volume 59, Number 245 (Thursday, December 22, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31483]
[[Page Unknown]]
[Federal Register: December 22, 1994]
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DEPARTMENT OF JUSTICE
Parole Commission
28 CFR Part 2
Paroling, Recommitting, and Supervising Federal Prisoners:
Salient Factor Scoring
AGENCY: Parole Commission, Justice.
ACTION: Final rule.
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SUMMARY: The U.S. Parole Commission is clarifying its paroling policy
guidelines on using a prior conviction for determining a prisoner's
salient factor score, when the prisoner claims the conviction was
obtained in violation of his right to counsel, and the records of the
conviction are not available. This amendment of the salient factor
score instructions was published as an interim rule on March 10, 1994.
59 FR 11185-86. The final version of the rule is almost identical to
the interim rule. The rule provides that the prisoner must demonstrate
that the allegedly invalid conviction must have occurred prior to
Supreme Court decisions establishing the right to counsel for felony
and misdemeanor/petty offense convictions. Otherwise, the Commission
will presume that the prior conviction was validly obtained and will
count the conviction even if records of the conviction are no longer
available.
EFFECTIVE DATE: January 23, 1995.
FOR FURTHER INFORMATION CONTACT: Rockne Chickinell, Office of the
General Counsel, U.S. Parole Commission, 5550 Friendship Blvd., Chevy
Chase, Maryland 20815, telephone (301) 492-5959.
SUPPLEMENTARY INFORMATION: The rationale for this revision of the
salient factor scoring manual is provided in the supplementary
information for the interim rule. 59 FR 11185-86. Several comments were
received in response to the publication of the interim rule. One
federal defender argued that the interim rule was unfair because if the
records of the prior conviction are not available, the limited
information the Commission had about the prior conviction was
presumptively unreliable. But the mere fact that the records of the
conviction are no longer available should not lead to the inference
that the conviction did not occur or was obtained using invalid
procedures. More likely, the absence of the records would be caused by
their destruction or retirement according to a practice of purging
court files on a regular schedule. Another person asked the Commission
to postpone action on the new rule until it assessed to what extent
tribal courts have implemented a defendant's right to counsel. The
Commission decided that the promulgation of this rule--which was
intended to promptly clarify its salient factor scoring instruction at
Item A, paragraph A.8--should not be deferred for the task of re-
examining tribal court procedures and determining whether a change in a
separate instruction at paragraph A.10 should also be made.
Several editorial changes were made in the interim rule. Also, in
the final rule the Commission clarifies that the prisoner would have to
claim that he served a jail term for a non-felony, pre-1973 conviction
before the Commission would decline to count such a conviction in
salient factor scoring. If the prisoner had not served a jail term for
such a conviction, the conviction would be constitutionally valid even
if obtained in violation of his right to counsel. Argersinger v.
Hamlin, 407 U.S. 25 (1972).
Implementation
This rule will be applied at all hearings and record reviews
(including reviews of appeals to the National Appeals Board), conducted
on or after the effective date.
Executive Order 12866 and Regulatory Flexibility Statement
The U.S. Parole Commission has determined that this rule is not a
significant regulatory action for the purposes of Executive Order 12866
and, accordingly, this rule has not been reviewed by the Office of
Management and Budget. This 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.
Accordingly, the U.S. Parole Commission is adopting the following
amendment to 28 CFR part 2.
PART 2--[AMENDED]
The Amendment
(1) The authority citation for 28 CFR part 2 continues to read as
follows:
Authority: 18 U.S.C. 4203(a)(1) and 4204(a)(6).
(2) 28 CFR part 2, Sec. 2.20 is amended by revising the second and
sixth sentences of the Salient Factor Scoring Manual, Item A, paragraph
A.7, to read as follows:
Sec. 2.20 Paroling policy guidelines: Statement of general policy.
* * * * *
Salient Factor Scoring Manual
* * * * *
Item A. Prior Convictions/Adjudications (Adult or Juvenile)
* * * * *
A.7 Convictions Reversed or Vacated on Grounds of Constitutional or
Procedural Error. * * * It is the Commission's presumption that a
conviction/adjudication is valid, except under the limited
circumstances described in the first note below. * * *
Similarly, do not count a conviction if: (1) the offender has
petitioned the appropriate court to overturn a felony conviction that
occurred prior to 1964, or a misdemeanor/petty offense conviction that
occurred prior to 1973 (and the offender claims he served a jail
sentence for the non-felony conviction); (2) the offender asserts he
was denied his right to counsel in the prior conviction; and (3) the
offender provides evidence (e.g., a letter from the court clerk) that
the records of the prior conviction are unavailable.
* * * * *
Dated: December 16, 1994.
Edward F. Reilly, Jr.,
Chairman, Parole Commission.
[FR Doc. 94-31483 Filed 12-21-94; 8:45 am]
BILLING CODE 4410-01-P
