U.S. DEPARTMENT OF JUSTICE
United States Parole Commission
Office of the Chairman 5550 Friendship Boulevard
Chevy Chase, Maryland 20815-7201Telephone: (301) 492-5990
Facsimile: (301) 492-5307
U.S. PAROLE COMMISSION QUARTERLY MEETING MINUTES
CHEVY CHASE, MARYLAND
Februray 11, 2003
SUBMITTED: March 6, 2003
PRESIDING: Edward F. Reilly, Jr., Chairman
PRESENT: COMMISSIONERS:
John R. Simpson, Regional CommissionerSTAFF:
Tom Hutchison, Chief of Staff
Rockne Chickinell, General Counsel
Judy I. Carter, Executive Officer
Helen A. Herman, Case Services Administrator
Stephen L. Husk, Case Operations Administrator
Sandra G. Hylton, Hearing Examiner
Paul R.A. Howard, Hearing Examiner
Casey Skvorc, Hearing Examiner
Pamela A. Posch, Attorney
Douglas W. Thiessen, Attorney
Patricia W. Moore, Staff Assistant
Kina K. Harding, Student InternCITIZENS:
Pauline Sullivan, CURE
Chairman Edward F. Reilly called the Quarterly Meeting of the United States Parole Commission (USPC) to order at 9:30 a.m., on Tuesday, February 11, 2003, in the 4th Floor Conference Room at 5550 Friendship Boulevard, Chevy Chase, Maryland.
The roll was taken. Commissioner John R. Simpson, and Chairman Edward F. Reilly were present. The Chairman announced that notice of the meeting and matters to be discussed had been posted in public places and published in the Federal Register pursuant to the Government in the Sunshine Act. The meeting was open to the public.
Due to the death of Commissioner Gaines' mother, he was not in attendance. Chairman Reilly expressed the Commission's heartfelt sympathy for Commissioner Gaines and his family during their time of bereavement.
APPROVAL OF THE NOVEMBER 14, 2002 QUARTERLY MEETING MINUTES
The Chairman announced that the first item of business on the agenda was the approval of the November 14, 2002 Quarterly Meeting Minutes.
Commissioner Simpson moved for the adoption of the November 14, 2002 Quarterly Meeting Minutes. Chairman Reilly seconded the motion. There being no corrections, additions, or amendments, the vote was taken, which carried unanimously.
ITEM I. AGENDA ITEM: APPEAL OF SUPERVISED RELEASE REVOCATION
Rockne Chickinell recommended that the Commission promulgate a final rule that provides an administrative appeal to those D.C. offenders who have had their supervised release terms revoked by the Commission.
Mr. Chickinell highlighted the background and rationale noting in the D.C. Revitalization Act, Congress assigned to the Parole Commission the task of revoking supervised release terms imposed for D.C. felon offenders. D.C. Code §24-133(c)(2). Due to the lack of adequate resources to review the appeals, the Commission has refrained from including an appeal procedure for any of the decisions it makes for D.C. offenders, including revoking supervised release terms. Mr. Chickinell noted several good reasons for establishing an administrative appeal procedure for supervised release revocation decisions. The statutes and rules for supervised release revocation decisions impose complex and unfamiliar requirements for examiners and agency decision-makers. An appeal procedure for supervised release revocations in an additional administrative tool in the agency's effort to decide these cases in accordance with legal requirements, promptly correct its mistakes in executing this new function, and facilitate the on-going training of personnel. The number of supervised release revocations is still small (less than ten decisions have been made so far) and providing an administrative appeal procedure will not impose, at this time, a significant burden on the attorneys and Commissioners reviewing the appeals.
Mr. Chickinell recommended that the Commission carry over from the regulation at 28 C.F.R. §2.26, the deadlines for filing and deciding the appeals, the limit on exhibits, the grounds for appeal, and the voting requirements. The appeal procedure would be added at 28 C.F.R. §2.220 and read as follows:
"A supervised releasee may appeal a decision to revoke supervised release, impose a term of imprisonment, or impose a new term of supervised release. The provisions of § 2.26 on the time limits for filing and deciding the appeal, on the limits regarding the submission of exhibits, on the grounds for appeal, and on voting requirements apply to an appeal submitted under this section".
Commissioner Simpson proposed that we commit to the appeal procedure only if we are given the resources. We would not want to set up false expectations. Chairman Reilly was optimistic that resources would be provided. Mr. Chickinell noted that he would indicate the conditional nature of the procedure to the preamble of the publication of the final rule.
Chairman Reilly moved that the proposal be adopted. Commissioner Simpson seconded the motion. There being no further questions, the vote was taken, which carried unanimously.
ITEM II. REPORTS FROM CHAIRMAN, COMMISSIONERS, EXECUTIVE SECTION, LEGAL, CASE OPERATIONS, CASE SERVICES AND RESEARCH UNITS. General Counsel Rockne Chickinell reported 145 new lawsuits during the fourth quarter of 2002, a modest decrease from the previous quarter. The Commission processed 102 NAB appeals in the fourth quarter. The FOIA staff received 373 requests in the fourth quarter (almost double the number reported for the third quarter) Mr. Chickinell expressed his gratitude for the excellent work and efforts of Ralph Ardito and the student interns in reducing the backlog of FOIA cases. At last count there was a backlog of only 8 cases.
Mr. Chickinell reported notable decisions from the Eighth Circuit for this quarter that included Smythe v. U.S. Parole Commission, 312 F.3d 383 (8th Cir. 2002). In this case, the Eighth Circuit held that a transfer treaty prisoner from Panama failed to show that the Parole Commission violated treaty law in setting a release date after the two-thirds date of his foreign sentence. Smythe alleged that the Convention on the Transfer of Sentenced Persons required the Commission to use Panamanian law in determining the maximum period of his confinement and that Panamanian law required release at the two-thirds point of the imposed sentence. The court of appeals agreed with our argument that the Convention did not apply to Smythe because he was transferred to U.S. custody under a bilateral treaty with Panama before the Convention became effective between the two countries. Even if the Convention did apply, it did not require a different result.
In United States v. Peltier, 312 F.3d 938 (8th Cir. 2002), the Eighth Circuit reaffirmed established case law denying tardy attempts to seek sentence reductions. In 1979, Peltier unsuccessfully moved to reduce his consecutive life sentences for the murders of two FBI agents. Twenty-two years later, Peliter filed another motion to reduce, arguing that equitable grounds required the court to find that his recent motion "related back" to his 1979 motion and therefore was timely filed under Rule 35 of the
Federal Rules of Criminal Procedure. Rule 35 required that the defendant file the motion within 120 days of sentencing, the affirmance of the sentence by a court of appeals, or the denial of a certiorari petition by the U.S. Supreme Court. The Eighth Circuit upheld the denial of Peltier's second motion by the district judge, quoting from another circuit's opinion in noting that the 120-day time limit exists in part "to protect the district court from recurrent requests from defendants to reconsider their sentence and to prevent the courts from becoming an alternative to the Parole Commission as a means of release from custody." The appellate court again rejected Peltier's claim that the prosecution's failure to disclose ballistics evidence constituted prejudicial error and required reconsideration of his conviction or sentence. The floor was opened for questions. Chairman Reilly applauded
Mr. Chickinell and the General Counsel staff for a job well done. The Chairman recommended that letters of excellent performance be prepared for each student intern.
Commissioner Reilly presented his report highlighting the article published in the Legal Times newspaper, October 28, 2002, "Can Parole Board Find Its Way In D.C.?" which was both complimentary and also called attention to issues that the Commission struggles with. The Chairman welcomed the article and expressed his satisfaction.
The article called attention to our mission with the District and the local mission and function that we have to carry out. He thanked Pauline Sullivan of CURE, who was in attendance, for her efforts in supporting our public forums and assisting with announcements. The next forum is scheduled for March 29. The Chairman announced that he would encourage the local media to become involved which in turn will assist in getting our message to the public. Copies of the article are available from the Chairman's office.
The Chairman questioned Judy Carter regarding the status of the defibrillator. Judy stated that we are awaiting the approval of the budget. The Chairman noted the Hope Village halfway house visit with Chief Judge Rufus King and Judge Noelle Kramer in November that was coordinated by Jim Beck. The visit was an eye opener and an excellent opportunity for all particularly for the judiciary members to see first hand some of the problems as well as some of the positive things that are going on the houses. The Commission is working to be proactive. Another valuable visit was with the supervised release workgroup to Rivers Correctional Institute in North Carolina. Jim Beck will elaborate during his report. A meeting is planned next week with Cheri Nolan and Cardinal McCarrick to discuss the need and the role of faith-based initiatives in the church and the diocese becoming more active with other churches in the district that have indicated an interest in developing a mentor program. Currently over 75 persons have been trained in mentoring. The Commission is vitally interested, as it is a part of our mission to prevent individuals from becoming re-incarcerated. The White House administration is in favor of the program. We are working with Jeremy White, Associate Director for Outreach, along with Scott Bloch of the Department's Office of Justice Programs.
While this mission belongs to CSOSA, the Commission is working behind the scenes to support the success of this program. The Chairman noted that the remainder of his report spoke for itself and opened the floor to any questions.
Chairman Reilly as earlier noted there would be no report from Commissioner Michael Gaines. Upon his return Commissioner Gaines will be given an opportunity to submit his report.
Commissioner John Simpson noted his report spoke for itself and opened the floor to questions.
Tom Hutchison, Chief of Staff, reported on his activities for the quarter, noting his attendance at meetings with the Criminal Justice Coordinating Council, personnel from other agencies, including CSOSA and the Bureau of Prisons. Mr. Hutchison reported that the Commission's budget is still operating under a continuing resolution and will be until Congress acts on the appropriation bill. The next public forum will be March 29, either the Martin Luther King, Jr. Library or the Council of Governments Building on North Capitol Street. Thirdly, he indicated that Helen Herman, Jim Beck, Rockne Chickinell and he have been working to consolidate some of the manual provisions on conditions of release. He expects that these changes, along with some others, will reduce the size of the manual by one third making it more "user friendly".
Helen Herman, Case Services Administrator, reporting on staffing issues for the quarter, noted a number of vacancies. One position is in the process of being filled. Staff is to be commended for "filling in" with the additional duties. Workload issues include reorganization of work distribution. Three hearing examiner trainees have been temporarily assigned to Case Services in January. They are building a background in Parole Commission procedures while learning the functions of Case Services Analysts. Thee D.C. Code Cases have become a major focus of the unit. The DC post release cases have been split into three types of warrant execution issues: parole violator warrants executed in D.C., warrants executed in the Metro-DC areas of VA and MD, and warrants executed outside of the Metro-DC area.
Correspondence for re-opens (similar to federal appeals) which had been assigned to a hearing examiner working over-time, is no longer being reviewed based on budget constraints and workload. The pre-release analysts review the correspondence that they receive in order to address medical and geriatric parole requests for reduction in minimum sentence, but their workload does not permit time to review and respond to every letter received by the Commission. Case Services is looking into an alternative so that this material can be reviewed. Ms. Herman concluded her report and opened the floor to any questions.
Steve Husk, Case Operations Administrator, reported on Case Operations Unit activities noting the hiring of six new hearing examiners. Three of the new examiners (Phyllis Baker, Paul Howard, and Gregory Price) were assigned to the Case Services Unit to receive training related to case analysts duties. The other three examiners (Sandra Hylton, Donna McLean-Swayne and Casey Skvorc) remained in Case Operations with the primary responsibility of producing pre-hearing assessments.
Currently available on every staff person's computer is the Master Docketing program with all schedules for 2003 available for viewing. Dockets have been assigned through April. Effective March 1, the new hearing examiners will be shadowing our seasoned examiners so you will begin to see their names on the docketing schedule.
Mr. Husk commented on his meeting with the Bureau of Prisons' General Counsel's Office and Psychiatry division officials to discuss the Commission requests for psychological/mental health evaluations and the limitation on the information that the Bureau may provide. The Bureau expressed a willingness to send to the Commission any mental health information in the file before the hearing. It must be noted that when the Bureau of Prison prepares a mental health evaluation at the request of the Commission, they must inform the prisoner. Another noteworthy item discussed centered on the Commission recommendation that prisoners be placed in BOP sex offender programs. Specifically, the only intensive sex offender program is at the FCI Butner. The BOP informed Commission staff that only 90 prisoners can be admitted to this sex offender program over an 18 month period. This is only 1% of the eligible population. Therefore, even if the Commission recommends placement, it is unlikely that prisoner would be admitted. Mr. Husk opened the floor to any questions. Chairman Reilly questioned the numbers received from the military, as many of them are sex offenders. Mr. Husk explained that military offenders were not addressed in this meeting; discussion mainly centered on DC Code offenders. Jim Beck questioned whether the BOP would provide the estimate of risk /danger to the community. Mr. Husk indicated that the BOP would provide somewhat of an estimate; mainly a general assessment based on whether the prisoner suffers from mental illness. The BOP will be very cautious in terms of making our decision for us.
Mr. Husk cautioned the Commission to be discriminating in terms of the cases requested. There may be other risk factors that we would allow the Commission to make a release decision without the need for a psychological/psychiatric report. Mr. Husk indicated that we would closely monitor these cases.
James Beck, Research Administrator, began his report noting the loss of two staff persons who have been called to active duty by the military, Tish Cavileri, who will be away for a substantial period of time and Sheena Watkins, who has been called by the Naval Reserve. Mr. Beck acknowledged that both employees are excellent workers and will be missed by the Commission. Mr. Beck was hopeful that the Research unit would be able to obtain some contract employees. Chairman Reilly suggested student interns from the neighboring colleges and universities. Judy Carter noted that Johnny Horner, a student intern currently working with Docketing is scheduled to be re-assigned to the Research Unit. The Research Unit continues to track the Commission's success in meeting the compliance plan agreed to in Long v. Gaines. While we are no longer required to report to the court every month, be we continue to track our progress monthly. Results continue to show that the Commission has successfully meeting the conditions required by the compliance plan.
The supervisory release workgroup continues to meet. The workgroup includes representatives from the Commission, CSOSA, the BOP, Federal Probation, faith groups, and NIC. Mr. Cranston Mitchell from NIC is facilitating this effort. D.C. Superior Court has agreed to provide a modified version of the supervised release certificate to all felons with supervised release imposed as a part of the sentence. This procedure has been delayed twice. It has been rescheduled for February 24, 2003 to allow more time for training court personnel. In the meantime, the Bureau of Prisons is working on a new Notice of Release and Arrival form, which will also assist in putting inmates on notice of the requirement to report for supervision. This is a major step forward in ensuring that all supervised releasees are put on notice that they must report for supervision within 72 hours of release to the community.
The Commission continues to work with the Bureau of Prisons and the Wachenhut Corporation, which operates the Rivers Correctional Facility. In November, the workgroup met at the Rivers Correctional Facility with case management staff as well as the Associate Warden and BOP oversight staff. The main topic was the use of the Commission's video conferencing equipment to connect inmates with their mentors a few months prior to release. CSOSA has developed an extensive network of mentors using faith-based organizations.
The Rivers Correctional Facility is a privately contracted facility housing over 1,000 DC offenders. This is the largest concentration of DC offenders in any one location.
A new computer program has been developed and implemented that will make it easier to schedule dockets up to one year in advance and to assign examiners to each docket. This will help to ensure that we make the best use of examiner resources and will make it convenient for examiners to print their schedules months in advance to plan travel. It also will provide Commissioners and staff a convenient way to review examiner schedules well into the future. A second program has been completed that will show the daily schedule for each examiner. A computer users group has been formed made up of representatives from all of the sections within the Commission.
The group's purpose is to identify issues of concern and to make suggestions for improving the equipment and systems used by staff. Mr. Beck concluded his report noting meetings he attended this quarter. The floor was opened to questions. Tom Hutchison and Rainey Ransom are working to bring this project to fruition.
Executive Officer Judy I. Carter reported good news with the approval from the Department and the Office of Personnel Management on the Commission's request to continue five of our reemployed annuitants beyond the two-year maximum for temporary appointments. Ms. Carter summarized new hires, promotions, reassignments, separations, details, and recruitment actions. Two new telecommuting agreements were issued this quarter. 10 On-The-Spot Awards and 15 Time Off Awards were issued. In addition, the first Employee of the Quarter Award was established and advertised during this quarter.
The Department's Long Term Care Program was coordinated by Zelia Carter with a power point presentation to help staff better understand the benefits of the program. There were five training sessions held. Also during this quarter, many hours were directed toward advising, counseling, and preparing documents related to employee relation's issues.
During this quarter, 121 vendor invoices were processed and paid through the Department's financial management system. 86 travel vouchers and requests for authorization were processed. Contract typists completed 643 summaries. 21 purchase orders were issued with a combined value of $267,926.32. The Combined Federal Campaign concluded in January with contributions totaling $11,524 received from 44 employees. Our contribution rate of 121% exceeded our goal of $9,540, and the Commission's participation rate of 62% compared favorably with other DOJ components.
New Federal Express procedures were implemented. The procedures included converting from a DOS system to an Internet System. A Federal Express representative conducted training sessions for all users. Under the new system, designated employees were issued user ID's and passwords to access the system from their personal computers.
Ms. Carter summarized the FY 2003 Budget execution noting that since October 1, 2002 the entire federal government has been operating under a series of Continuing Resolutions. The current resolution expired on February 7 and provided funding at the FY 2002 level of $9,868,000. At the current rate obligation, plus expected pay raises and other cost increases, the Commission would require a total appropriation of at least $10,400.00. The Commission's budget request for FY 2003 is 100 positions. 104 FTE workyears and $10,862,000. The Senate Appropriations Committee has reported out a recommended budget level that reduces the Commission's budget by $748,000. With a cut of that magnitude, the Commission would have difficulty funding all projected expenses. If the House and Senate split the difference in the two versions, our appropriation should end up at about $10,455.00. A budget statement was prepared and submitted to the Department for submission to the Congressional Conference Committee. The statement addressed the Commission's assessment of the funding problems expected if the Commission is funded at the Senate mark.
The President's FY 2004 Budget sent to the Hill on February 4 included a current services request for the Commission of 100 positions, 104 FTE workyears and $11,051.00. Ms. Carter noted that the Executive Staff is working with the Department's Budget Staff and the OMB Examiner to finalize the Congressional justifications that the Department will transmit to the Appropriations Committee. Since the budget numbers for 2003 are not settled, the final shape of the 2004 will not reveal itself until after budget submissions have gone to the Hill.
AGENDA ITEM II: FINAL RULE FOR MANDATORY SUPERVISION FOR MILITARY OFFENDERS Attorney Doug Thiessen introduced this proposal to the Commission explaining its purpose and recommending that the Commission promulgate a final rule regarding supervision for military offenders. On November 7, 2002, the Commission promulgated an interim rule regarding "mandatory supervision" for military offenders. This rule implemented a new Department of Defense Instruction (DoDI 1325.7 (6.20.8)), which authorized the Commission to place military prisoners (incarcerated in federal civilian institutions) who committed their offenses on or after August 16, 2001, on mandatory supervision after they are mandatorily released from their military sentences. The Commission's interim rule made it clear that the Commission presumed mandatory supervision to be appropriate unless case-specific factors indicated otherwise. The rule also provided that a military prisoner placed on such mandatory supervision would be subject to the conditions of parole until the full term expiration date of the prisoner's sentence, unless the Commission terminated the prisoner's supervision early under 28 C.F.R. §2.43. Attorney Thiessen noted that the interim rule requested comments but that the Commission received no comments during the comment period.
Mr. Thiessen recommended that the Commission adopt the interim rule as a final rule, with one change. The Commission has refrained from making early termination from supervision decisions for military offenders because it has considered this authority to be vested in the appropriate military clemency board. The Legal Office believes that this change is in conformity with the Commission's policy. With this change, the Commission may still apply the early termination guidelines and make recommendations to the appropriate clemency board. Attorney Thiessen opened the floor to questions. Commissioner Simpson asked if the change strengthens our position on the release of military offenders. Attorney Thiessen responded that it does and that it clarifies that the authority is vested in the military clemency board.
Commissioner Simpson questioned how the military could place an offender under the custody of the Bureau of Prisons and maintain authority over the prisoners. In response, Attorney Thiessen noted that it's a military sentence and not a U.S. Code sentence. A U.S. Code sentence vests the authority to terminate parole in the U.S. Parole Commission but the uniform code of military justice states only the military clemency board has the authority. Chairman Reilly commented that Attorney General Reno made the request at the urging of the Parole Commission. The Commission initiated. We met with military boards regarding the move of prisoners from mil to Bureau of Prisons nothing would have probably been done. It began as an agreement to reduce the number of military prisoners housed in military facilities however, the military wants to maintain control over these prisoners. There has been discussion to turn the management and control over the entire military barracks over to the Bureau of Prisons. Tom Hutchison noted discussion from the Commission's joint meeting with the military parole boards. What transpired was that they (the military) don't necessarily agree with some of our parole policies. They have reservations about their prisoners being caught up in our system. Their mindset is that these prisoners are military and they belong to the military. Chairman Reilly noted that the military has more flexibility as opposed to ours. Helen Herman questioned whether this change would apply to military prisoners who do not apply for parole but are considered for parole by the Commission. Attorney Thiessen indicated that it would and for those who did not apply we would be obligated to place them on mandatory release/supervision.
Attorney Thiessen also recommended that the Commission clarify the final sentence of the rule, noting that the authority to terminate a military prisoner's mandatory supervision rests with the appropriate military clemency board. The proposed final rule would be located at 28 C.F.R. § 2.53(d).
Commissioner Simpson moved that the proposal be adopted. Chairman Reilly seconded the motion. There being no further questions, the vote was taken, which carried unanimously.
It was again noted that Commissioner Gaines is absent due to death in his family. Chairman Reilly questioned if Commissioner Gaines could vote on the supervised release appeal and military mandatory supervision proposals seriatim. Attorney Thiessen agreed and offered to prepare a memorandum. Commissioner Simpson moved to withdraw the two votes and to reconsider based upon Commissioner Gaines' absence. Chairman Reilly seconded the motion. The Legal Office will prepare a memorandum of regarding seriatim voting on the two proposals.
There being no further business, Commissioner Simpson moved the Quarterly Meeting adjourn at 11:13 a.m. Chairman Reilly seconded the motion, which carried unanimously.
SUBMITTED BY:
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Patricia W. Moore
Recording Secretary