E7-17760. Paroling, Recommitting, and Supervising Federal Prisoners: Prisoners Serving Sentences Under the United States and District of Columbia Codes

AGENCY:

United States Parole Commission, Justice.

ACTION:

Final rule.

SUMMARY:

The Parole Commission is amending its regulations to incorporate a procedural alternative that allows a parolee or supervised releasee to initiate the process of accepting a revocation decision without the need of a revocation hearing. This “advanced consent” alternative has been used in a pilot project in the District of Columbia since October 2005 and has assisted in the prompt resolution of revocation cases. Through this amendment, the Commission is formalizing the adoption of this variation of the expedited revocation procedure and simplifying the format and language of the rule.

DATES:

Effective date: October 18, 2007.

FOR FURTHER INFORMATION CONTACT:

Office of General Counsel, U.S. Parole Commission, 5550 Friendship Blvd., Chevy Chase, Maryland 20815, telephone [phone]. Questions about this publication are welcome, but inquiries concerning individual cases cannot be answered over the telephone.

SUPPLEMENTARY INFORMATION:

In 1998 the Parole Commission promulgated a rule establishing the expedited revocation procedure. 63 FR 25769-70 (May 21, 1998). Under this procedure, after a preliminary interview and a probable cause determination, the Commission may offer an alleged parole violator the opportunity to receive a revocation and reparole decision without a revocation hearing. By accepting the Commission's offer and foregoing the revocation hearing, the alleged violator may expedite his transfer from a local jail to a federal institution where vocational, educational, and other prison programs are available. In using this procedure, the Commission saves the costs associated with conducting an in-person hearing.

In October 2005, the Commission began an “advanced consent” pilot project at the District of Columbia Central Detention Facility at the suggestion of the Commission's hearing examiners and attorneys from the District of Columbia Public Defender Service. After a parolee or supervised releasee is arrested on a violator warrant issued by the Commission, a Commission hearing examiner conducts a probable cause hearing for the alleged violator at the DC jail within 5 days of the arrest. See 28 CFR 2.101(a). Under the pilot project, the alleged violator may propose to the hearing examiner at the probable cause hearing that he will accept a disposition of the case without a revocation hearing. Usually the alleged violator makes the proposal with the condition that the prison term resulting from the revocation stays at the bottom of the applicable guideline range (see 28 CFR 2.20 and 2.21). The Commission maintains the authority to reject the proposal for any reason, and uses the same substantive criteria in evaluating the case that are described in the present rule at § 2.66, e.g., cases in which the offense severity rating for the alleged violation behavior under the paroling policy guidelines (28 CFR 2.20) is Category Two or less (Categories One and Two are the least serious offense ratings in the guidelines). Under the advanced consent process, the Commission hoped to expedite revocation proceedings and reduce the number of days the offender would be incarcerated at the DC jail before transferring to a federal facility where more programs would be available to the offender.

The results of the advanced consent program show that this procedure does expedite the resolution of less serious parole and supervised release revocation cases. For the period from January 1, 2006 to June 30, 2007, the Commission made 2,607 revocation decisions for violators in the District of Columbia. Of this number, 1048 cases (40%) were decided using the advanced consent procedure. The average processing time of these 1048 cases was 44 days from the date the violator was arrested on a violator warrant to the date of the revocation decision, almost half the time contemplated by the Commission's regulation governing local revocation hearings. See 28 CFR 2.105(c) and 2.218(g) (a revocation decision for a DC violator must be made within 86 days of arrest on a violator warrant).

With the success of the pilot project, the Commission is now amending its rule at § 2.66 to incorporate the advanced consent alternative as a variation of the expedited revocation procedure. No change has been made in the criteria used by the Commission in determining those offenders who may be considered for revocation without the need of a hearing. In applying the amended rule, the Commission will continue to exercise its discretion to conduct a hearing when it deems a hearing to be necessary to protect the public safety, even if the alleged violator's case appears to meet one of the criteria for consideration under § 2.66. The Commission has also edited the rule to ensure that it is clear and easy to read. With the editing of the rule, a conforming amendment is made to the rule on miscellaneous provisions at 28 CFR 2.89. The Commission is publishing the amended rule at § 2.66 as a final rule without seeking public comment because the rule is procedural in nature and does not establish any new substantive criteria for making revocation and reparole decisions.

Implementation

The amended rules will take effect October 18, 2007, and will apply to federal and District of Columbia offenders.

Executive Order 12866

The U.S. Parole Commission has determined that this final rule does not constitute a significant rule within the meaning of Executive Order 12866.

Executive Order 13132

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Under Executive Order 13132, this rule does not have sufficient federalism implications requiring a Federalism Assessment.

Regulatory Flexibility Act

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

Unfunded Mandates Reform Act of 1995

This rule will not cause State, local, or tribal governments, or the private sector, to spend $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. No action under the Unfunded Mandates Reform Act of 1995 is necessary.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by Section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on the ability of United States-based companies to compete with foreign-based companies.

List of Subjects in 28 CFR Part 2

• Administrative practice and procedure
• Prisoners
• Probation and parole

The Final Rule

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

PART 2—[AMENDED]

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

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

2. Revise § 2.66 to read as follows:

§ 2.66

Revocation decision without hearing.

(a) If the releasee agrees to the decision, the Commission may make a revocation decision without a hearing if—

(1) The alleged violation would be graded no higher than Category Two under the guidelines at § 2.20;

(2) The alleged violation is in any category under the guidelines at § 2.20 and the decision imposes the maximum sanction authorized by law; or

(3) The Commission determines that the releasee has already served sufficient time in custody as a sanction for the violation but that forfeiture of time on parole is necessary to provide an adequate period of supervision.

(b) A releasee who agrees to such a disposition shall indicate such agreement by—

(1) Accepting the decision proposed by the Commission in the Notice of Eligibility for Expedited Revocation Procedure that the Commission sent to the releasee, thereby agreeing that the releasee does not contest the validity of the charge and waives a revocation hearing; or

(2) Offering in writing, before the finding of probable cause or at a probable cause hearing, not to contest the validity of the charge, to waive a revocation hearing, and to accept a decision that is at the bottom of the applicable guideline range as determined by the Commission if the violation would be graded no higher than Category Two under the guidelines at § 2.20, or is the maximum sanction authorized by law.

(c) An alleged violator's agreement under this provision shall not preclude the Commission from taking any action authorized by law or limit the statutory consequences of a revocation decision.

3. Amend § 2.89 by adding an entry for § 2.66 to read as follows:

§ 2.89

Miscellaneous provisions.

* * * * *

2.66 (Revocation Decision Without Hearing)

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Dated: August 22, 2007.

Edward F. Reilly, Jr.,

Chairman, U.S. Parole Commission.