[Federal Register Volume 59, Number 170 (Friday, September 2, 1994)]
[Rules and Regulations]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-21722]
[[Page Unknown]]
[Federal Register: September 2, 1994]
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DEPARTMENT OF JUSTICE
Parole Commission
28 CFR. Part 2
Paroling, Recommitting, and Supervising Federal Prisoners: Parole
Hearings Conducted by Single Hearing Examiners
AGENCY: Parole Commission, Justice.
ACTION: Final rule.
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SUMMARY: The U.S. Parole Commission is adopting a rule that permits
parole hearings for eligible federal prisoners to be conducted by a
single hearing examiner. Formerly, parole hearings were conducted by
panels of two examiners, with single-examiner hearings being the
exception. The final rule issued today makes single examiner hearings
the norm, with the Commission having the option to order panel hearings
when appropriate. Review and voting by the Regional Administrator will
provide the Regional Commissioner with a panel recommendation of two
examiners before a decision is rendered. The rule will also permit a
hearing examiner (or panel) to withhold the recommended decision that
is usually given to the prisoner at the conclusion of a parole hearing,
if a critical issue requires further consideration. The purpose served
by this final rule is to adjust the Commission's procedures to the
down-sizing requirements of the Commission's impending abolition,
without lessening the quality of justice in parole hearings and
decisions.
EFFECTIVE DATE: October 3, 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 an interim rule at 47 FR 11186 (March 10, 1994). Comment was
received from the University of Southern California Law Center (USCLC),
the Federal Public Defenders for the Central District of California and
the Western District of Pennsylvania, and several federal prisoners.
This comment was uniformly negative, and emphasized the aura of
fairness that is assertedly lost when parole hearings are conducted by
a single examiner. Moreover, the public comment advanced various legal
arguments to the effect that due process, and the intent of Congress in
the Parole Commission and Reorganization Act of 1976, mandate the
Commission to continue conducting parole hearings with panels of two
examiners.
With respect to the constitutional and legal arguments advanced in
the public comment, the Commission has rejected those arguments.
Contrary to the public comment from the USCLC, the legislative history
to the 1986 amendment to 18 U.S.C. Sec. 4208 clearly states that
Congress intended the Parole Commission to ``utilize its resources most
efficiently'' by having one examiner conduct the parole hearing, with
the second examiner reviewing the case on the record. 132 Cong. Rec.
H11291, 11293 (daily ed. Oct. 17, 1986) (remarks of Rep. Berman).
Moreover, the analogy drawn in the public comment between the right of
a parolee to due process under Morrissey v. Brewer, 408 U.S. 470
(1972), and the right of an eligible prisoner to a parole hearing, is
not a correct analogy. A parole hearing is not designed to test the
credibility of live witnesses, but serves the limited purposes of
providing the prisoner with an opportunity: (1) to ensure that the
records under consideration by the Parole Commission are, in fact, the
records relating to his case; and (2) to present any special
considerations demonstrating why he is an appropriate candidate for
parole. See Greenholtz v. Inmates of Nebraska Penal and Correctional
Complex, 442 U.S. 1, 15 (1979). Even under the Parole Commission and
Reorganization Act of 1976, single-examiner hearings were permitted in
special situations, thus precluding the assumption, advocated in the
public comment, that Congress made a two-examiner panel a legal
necessity regardless of the circumstances. The 1976 law also permitted
parole revocation hearings under Morrissey v. Brewer, supra, to be
conducted by a single examiner. Hence, the arguments that the Parole
Commission is precluded by law from responding to the circumstances
created by its abolition in the Sentencing Reform Act of 1984, are
without merit.
On the other hand, the Parole Commission is sensitive to the
concerns expressed by the prisoners themselves for maintaining the
fairness of parole consideration, especially with regard to the
deliberations that precede the panel recommendation to the Regional
Commissioner. To this end, the Commission will institute every
reasonable measure to ensure thorough consideration by the Regional
Administrator, who will participate as a panel member in arriving at a
well-considered, independent evaluation of the prisoner's case.
Although the presence of two hearing examiners provides an eligible
prisoner with the outward assurance of fairness, the ultimate fairness
of the deliberations that go into a parole decision is not diminished
if the absent secondary examiner is given more opportunity for
reflection and study of the case file in the regional office, than
would be possible when examiners are obliged to complete a docket of
hearings in an institution.
Finally, the restraints imposed upon the U.S. Parole Commission by
its impending abolition on November 1, 1997, require that the
Commission balance the objective of a fair parole hearing with the need
for appropriate conservation of limited staff resources.
Public comment was also received with regard to the provision
permitting an examiner to forego the recommended decision normally
announced at the conclusion of a parole hearing. The Commission agrees
that this should be an extraordinary procedure, and should not be
invoked by hearing examiners on a routine basis. The Commission will
monitor the practices of its hearing examiners to ensure that overuse
of this provision (as predicted in some of the public comment) will not
occur.
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 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 Final Rule
Accordingly, the Parole Commission adopts 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. 28 CFR part 2, Sec. 2.13 is amended by revising paragraphs (a),
(b) and (c) to read as follows:
Sec. 2.13 Initial hearing; procedure.
(a) An initial hearing shall be conducted by a single hearing
examiner unless the Regional Commissioner orders that the hearing be
conducted by a panel of two examiners. The examiner shall discuss with
the prisoner his offense severity rating and salient factor score as
described in Sec. 2.20, his institutional conduct and, in addition, any
other matter the examiner may deem relevant.
(b) A prisoner may be represented at a hearing by a person of his
or her choice. The function of the prisoner's representative shall be
to offer a statement at the conclusion of the interview of the prisoner
by the examiner, and to provide such additional information as the
examiner shall request. Interested parties who oppose parole may select
a representative to appear and offer a statement. The hearing examiner
shall limit or exclude any irrelevant or repetitious statement.
(c) At the conclusion of the hearing, the examiner shall discuss
the decision to be recommended by the examiner, and the reasons
therefor, except in the extraordinary circumstance of a complex issue
that requires further deliberation before a recommendation can be made.
* * * * *
3. 28 CFR part 2, Sec. 2.23 is amended by revising paragraphs (a),
(b) and (c) to read as follows:
Sec. 2.23 Delegation to hearing examiners.
(a) There is hereby delegated to hearing examiners the authority
necessary to conduct hearings and to make recommendations relative to
the grant or denial of parole or reparole, revocation or reinstatement
of parole or mandatory release, and conditions of parole. Any hearing
may be conducted by a single examiner or by a panel of examiners. A
Regional Administrator shall function as a hearing examiner for the
purpose of obtaining a panel recommendation whenever the Regional
Commissioner has not ordered that a hearing be conducted by a panel of
two examiners.
(b) The concurrence of two hearing examiners, or of a hearing
examiner and the Regional Administrator, shall be required to obtain a
panel recommendation to the Regional Commissioner. A panel
recommendation is required in each case decided by a Regional
Commissioner after the holding of a hearing.
(c) An examiner panel recommendation consists of two concurring
examiner votes. In the event of divergent votes, the case shall be
referred to another hearing examiner (or to the Regional Administrator
in the case of a hearing conducted by a panel of examiners) for another
vote. If concurring votes do not result from such a referral, the case
shall be referred to any available hearing examiner until a panel
recommendation is obtained.
* * * * *
Dated: August 22, 1994.
Jasper R. Clay, Jr.,
Vice Chairman, U.S. Parole Commission.
[FR Doc. 94-21722 Filed 9-1-94; 8:45 am]
BILLING CODE 4410-01-P
