[Federal Register Volume 59, Number 95 (Wednesday, May 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-12049]
[[Page Unknown]]
[Federal Register: May 18, 1994]
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DEPARTMENT OF JUSTICE
Parole Commission
28 CFR Part 2
Paroling, Recommitting, and Supervising Federal Prisoners:
Parole-Eligible Prisoners Convicted of Aggravated Murders
AGENCY: Parole Commission, Justice.
ACTION: Final rule.
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SUMMARY: The U.S. Parole Commission is adding a provision to its
paroling policy guidelines that requires the Commission to find
compelling circumstances in mitigation if it grants parole in certain
types of first-degree murder cases. These cases are limited to
especially aggravated criminal behaviors that will rarely be
accompanied by mitigating circumstances, as in the case of murders
committed to silence a victim or witness, contract murders, and similar
crimes. The purpose of the rule is to ensure that the release of such
prisoners, at any point in the sentence imposed, will not promote
disrespect for the law because of the absence of an explanation
sufficient to establish a reasonable basis for the parole in the eyes
of the public.
EFFECTIVE DATE: June 17, 1994.
FOR FURTHER INFORMATION CONTACT:
Richard K. Preston, Office of General Counsel, 5550 Friendship Blvd.,
Chevy Chase, Maryland 20815, telephone (301) 492-5959.
SUPPLEMENTARY INFORMATION: Public comment was solicited by publication
of a proposed rule at 58 FR 65572 (December 15, 1993). One comment from
the public was received. According to this comment, the proposed rule
would ``suspend parole eligibility'' for offenders convicted of first-
degree murder, despite their statutory eligibility for parole under 18
U.S.C. 4205 (1976), if the offense occurred before November 1, 1987.
The rule as adopted herein would not suspend parole eligibility. It
creates a presumption against parole, in certain cases, that can be
overcome by a showing of ``compelling circumstances in mitigation.'' In
that respect, it is a guideline and not an automatic bar to
eligibility. All parole guidelines operate as presumptions that may
either require or preclude a grant of parole, depending on the length
of the sentence, if the Commission does not find ``good cause'' to
render a decision outside the guidelines. 18 U.S.C. 4206(c) (1976).
This rule may likewise preclude some offenders from receiving a parole,
but it also authorizes a grant of parole if the facts of the case
warrant a grant of parole. ``Compelling circumstances in mitigation''
means mitigating circumstances that are clearly significant, and not
minor in relation to the gravity of the offense.
As explained in the proposed rule, the Commission's purpose in
adopting this paroling policy is to ensure that offenders who are
convicted of certain types of aggravated murders, and who have served
enough prison time to satisfy the minimum guideline for Category Eight
offenses at 28 CFR 2.20, will not automatically be paroled just because
they are ``within the guidelines.'' The offense behaviors committed by
these prisoners are so inherently serious that a parole would not be
justified at any point in the guideline range unless the Commission
could articulate a clearly significant circumstance in mitigation.
Otherwise, such a parole would promote disrespect for the law in
violation of 18 U.S.C. 4206 (1976).
Moreover, for any offender whose offense is rated Category Eight,
the guideline range extends from the minimum specified to the full term
of the sentence imposed. This feature reflects the fact that Category
Eight cases demonstrate ``extreme variability'' in offense seriousness.
28 CFR 2.20. Hence, service of the full sentence is an outcome that the
Category Eight guidelines necessarily contemplate for the most serious
of the offenders who fall within that category. This rule defines the
cases for which such an outcome should be expected.
Finally, the final rule is directed at sole or primary instigators
(as the example indicates), and is not intended to apply to offenders
convicted of felony-murder, i.e., a murder that was entirely instigated
and carried out by a codefendant (or codefendants) in furtherance of a
joint criminal venture. The Commission intends to focus solely on a
narrow category of offenders who are at the extreme high end of the
spectrum of Category Eight offenses in general.
Implementation
This rule will be applied retroactively when presumptive grants of
parole decided by the Commission in previous years come up for review.
If the case falls within the rule, and the Commission has not
previously articulated a compelling circumstance in mitigation, the
Commission will reopen the case under 28 CFR 2.28(f) for a hearing to
determine whether a grant of parole would comport with the public
acceptance criterion of 18 U.S.C. 4206(a) (1976). It will, in these
cases, be presumed that the Commission previously followed the
guidelines at 28 CFR 2.20, but neglected to address the question of
whether parole would ``promote disrespect for the law.'' This is a
separate criterion from the criteria measured by the guidelines
(offense severity and risk). See 2 U.S.C. Code Cong. & Admin. News
(1976) at 358. If a parole date previously granted is denied for want
of sufficiently mitigating factors, the Commission will thereby ensure
that all similarly situated cases are being treated alike. The
Commission will not, however, reopen cases in which mitigating
circumstances have already been identified as the basis for granting
parole, in order to redecide the merits of such a finding.
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 the rule has therefore not been reviewed by the Office of
Management and Budget. The rule will not have 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 Final Rule
Accordingly, the U.S. Parole Commission makes the following
amendment to 28 CFR part 2:
(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 adding the following
language to the Note governing Category Eight cases, that appears below
the table entitled ``Guidelines for Decisionmaking'':
Sec. 2.20 Paroling policy guidelines: Statement of general policy.
* * * * *
Guidelines for Decision Making
* * * * *
Note: * * * However, a murder committed to silence a victim or
witness, a contract murder, a murder by torture, the murder of a law
enforcement officer to carry out an offense, or a murder committed
to further the aims of an on-going criminal operation, shall not
justify a grant of parole at any point in the prisoner's sentence
unless there are compelling circumstances in mitigation (e.g., a
youthful offender who participated in a murder planned and executed
by his parent). Such aggravated crimes are considered, by
definition, at the extreme high end of Category Eight offenses. For
these cases, the expiration of the sentence is deemed to be a
decision at the maximim limit of the guideline range. (The fact that
an offense does not fall under the definition contained herein does
not mean that the Commission is obliged to grant a parole.)
* * * * *
Dated: May 6, 1994.
Edward F. Reilly, Jr.,
Chairman, U.S. Parole Commission.
[FR Doc. 94-12049 Filed 5-17-94; 8:45 am]
BILLING CODE 4410-01-M
