[Federal Register: November 26, 2002 (Volume 67, Number 228)]
[Rules and Regulations]
[Page 70692-70694]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26no02-11]
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DEPARTMENT OF JUSTICE
Parole Commission
28 CFR Part 2
Paroling, Recommitting, and Supervising Federal Prisoners:
Prisoners Serving Sentences under the United States and District of
Columbia Codes
AGENCY: Parole Commission, Justice.
ACTION: Final rule.
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SUMMARY: The U.S. Parole Commission is amending procedures governing
parole proceedings for federal and District of Columbia offenders, and
transfer treaty prisoners. Almost all the amendments are corrections
and clarifications of the instructions for calculating the salient
factor score, a component of the Commission's paroling policy
guidelines. The Commission is also correcting a reference to the U.S.
Sentencing Guidelines in a regulation regarding the imposition of
release conditions for a transfer treaty prisoner released to a term of
supervised release.
EFFECTIVE DATE: These rule amendments are effective December 30, 2002.
FOR FURTHER INFORMATION CONTACT: Office of General Counsel, U.S. Parole
Commission, 5550 Friendship Blvd., Chevy Chase, Maryland 20815,
telephone (301) 492-5959. Questions about this publication are welcome,
but inquiries concerning individual cases cannot be answered over the
telephone.
SUPPLEMENTARY INFORMATION:
The salient factor score is an actuarial device used by the
Commission to evaluate the risk of parole violation by a prisoner if
released to supervision. The score is a component of the Commission's
paroling policy guidelines for making parole release decisions for U.S.
Code offenders (28 CFR 2.20), and is also employed in the guidelines
for DC Code offenders (28 CFR 2.80). The score comprises six criminal
history items, including items such as number of prior convictions and
commitments, and age at the time of current offense. The total score
ranges from 0-10, with the higher score indicating that the prisoner is
a better parole risk.
The Commission is now updating the instructions in the salient
factor scoring manual to give better guidance in the scoring of the
individual items. Some of the changes are corrections of text that
should have been amended in earlier revisions of the score, or
editorial improvements to make the instructions easier to read. Other
changes reflect the application of the score in determining terms of
imprisonment for DC Code supervised release violators. Finally, several
new instructions implement advice the Commission's Office of General
Counsel has provided to Commissioners and staff in the use of DC
juvenile consent decrees and juvenile commitments to the DC Department
of Human Services for salient factor scoring.
Aside from the amendments to the salient factor scoring manual, the
Commission is also correcting a reference to the U.S. Sentencing
Guidelines in its regulation at 28 CFR 2.68(l) on the imposition of
conditions of supervised release for a transfer treaty prisoner who is
released to a term of supervised release.
Implementation
These amendments will be applied in any hearing or record review
conducted after the effective date of the amendments.
Regulatory Assessment Requirements
The U.S. Parole Commission has determined that this final rule does
not constitute a significant rule within the meaning of Executive Order
12866. The final 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.
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
amendments 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).
Subpart A--United States Code Prisoners and Parolees
2. Section 2.20 is amended as follows:
a. In the table entitled ``Guidelines For Decisionmaking'' remove
``salient factor score 1981'' and substitute ``salient factor score
1998'';
b. Revise the Salient Factor Scoring Manual, Item A, paragraphs
A.1, A.5, and add paragraph A.14;
c. Revise the Salient Factor Scoring Manual, Item B, paragraphs
B.3(b)-(c), and add paragraph B.3(d);
d. Revise the Salient Factor Scoring Manual, Item C, paragraphs
C.1-C.4, redesignate paragraph C.5 as C.10, and add paragraphs C.6-C.9;
e. Revise the Salient Factor Scoring Manual, Item E, paragraphs
E.3(b)-(c);
f. Revise the Salient Factor Scoring Manual, Item F;
g. Revise the Salient Factor Scoring Manual, Special Instructions--
Federal Probation Violators, by revising the title and the paragraphs
for scoring Items A and E, remove the paragraph for scoring Item F, and
redesignate the paragraph for scoring Item G as Item F;
h. Revise the Salient Factor Scoring Manual, Special Instructions--
Federal Parole Violators, by revising the title and the paragraphs for
scoring Items A-
[[Page 70693]]
D, and F, and remove the paragraph for scoring Item G;
i. Revise the Salient Factor Scoring Manual, Special Instructions--
Federal Confinement/Escape Status Violators With New Criminal Behavior
In The Community, by revising the title, remove the paragraph for
scoring Item F, and redesignate the paragraph for scoring Item G as
Item F and revise Item F.
The revised and added text reads as follows:
Sec. 2.20 Paroling policy guidelines: Statement of general policy.
* * * * *
Salient Factor Scoring Manual
* * * * *
Item A. * * *
A.1 In General.
(a) Count all convictions/adjudications (adult or juvenile) for
criminal offenses (other than the current offense) that were committed
prior to the present period of confinement, except as specifically
noted.
(b) Convictions for prior offenses that are not separated from each
other by an intervening arrest (e.g., two burglaries followed by an
arrest for both offenses) are counted as a single prior conviction.
Prior offenses that are separated by an intervening arrest are counted
separately (e.g., three convictions for larceny and a conviction for an
additional larceny committed after the arrest for the first three
larcenies would be counted as two prior convictions, even if all the
four offenses were adjudicated together).
(c) Do not count the current federal offense or state/local
convictions resulting from the current federal offense ((i.e., offenses
that are considered in assessing the severity of the current offense).
Exception: Where the first and last overt acts of the current offense
behavior are separated by an intervening federal conviction (e.g.,
after conviction for the current federal offense, the offender commits
another federal offense while on appeal bond), both offenses are
counted in assessing offense severity; the earlier offense is also
counted as a prior conviction in the salient factor score.
* * * * *
A.5 Diversion.
Conduct resulting in diversion from the judicial process without a
finding of guilt (e.g., deferred prosecution, probation without plea,
or a District of Columbia juvenile consent decree) is not to be counted
in scoring this item. However, an instance of criminal behavior
resulting in a judicial determination of guilt before a judicial body
shall be counted as a conviction even if a conviction is not formally
entered.
* * * * *
A.14 Juvenile Consent Decree (District of Columbia). A juvenile
consent decree in the District of Columbia is a diversionary
disposition not requiring an admission or finding of guilt. Therefore,
it is not to be used in scoring this item.
Item B. * * *
B.3 Definitions.
* * *
(b) This item includes confinement in adult or juvenile
institutions, community corrections centers, and other residential
treatment centers (e.g., halfway houses and community treatment
centers). It does not include foster home placement. Count confinement
in a community corrections center (CCC) or other residential treatment
center only when it is part of a committed sentence. Do not count
confinement in a community corrections center or other residential
treatment center when imposed as a condition of probation or parole. Do
not count self-commitment for drug or alcohol treatment.
(c) If a committed sentence of more than 30 days is imposed prior
to the current offense but the offender avoids or delays service of the
sentence (e.g., by absconding, escaping, bail pending appeal), count as
a prior commitment. Note: Where the subject unlawfully avoids service
of a prior commitment by escaping or failing to appear for service of
sentence, this commitment is also to be considered in Items D and E.
Example: An offender is sentenced to a three-year prison term, released
on appeal bond, and commits the current offense. Count as a previous
commitment under Item B, but not under Items D and E. To be considered
under Items D and E, the avoidance of sentence must have been unlawful
(e.g., escape or failure to report for service of sentence). Example:
An offender is sentenced to a three-year prison term, escapes, and
commits the current offense. Count as a previous commitment under Items
B, D, and E.
(d) District of Columbia Juvenile Commitment to Department of Human
Services. In the District of Columbia, juvenile offenders may be
committed to the Department of Human Services for placement ranging
from a foster home to a secure juvenile facility. Such a commitment is
counted only if it can be established that the juvenile was actually
committed for more than 30 days to a secure juvenile institution or
residential treatment center rather than a foster home.
Item C. * * *
C.1 Score 3 if the subject was 26 years of age or more at the
commencement of the current offense and has three or fewer prior
commitments.
C.2 Score 2 if the subject was 26 years of age or more at the
commencement of the current offense and has four prior commitments.
C.3 Score 1 if the subject was 26 years of age or more at the
commencement of the current offense and has five or more prior
commitments.
C.4 Score 2 if the subject was 22-25 years of age at the
commencement of the current offense and has three or fewer prior
commitments.
C.5 Score 1 if the subject was 22-25 years of age at the
commencement of the current offense and has four prior commitments.
C.6 Score 0 if the subject was 22-25 years of age at the
commencement of the current offense and has five or more prior
commitments.
C.7 Score 1 if the subject was 20-21 years of age at the
commencement of the current offense and has three or fewer prior
commitments.
C.8 Score 0 if the subject was 20-21 years of age at the
commencement of the current offense and has four prior commitments.
C.9 Score 0 if the subject was 19 years of age or less at the
commencement of the current offense with any number of prior
commitments.
Item E. * * *
E.3 Definitions. * * *
(b) The term ``parole'' includes parole, mandatory parole,
supervised release, conditional release, or mandatory release
supervision (i.e., any form of supervised release).
(c) The term ``confinement/escape status'' includes institutional
custody, work or study release, pass or furlough, community corrections
center or other residential treatment center confinement (when such
confinement is counted as a commitment under Item B), or escape from
any of the above.
Item F. Older Offenders.
F.1 Score 1 if the offender was 41 years of age or more at the
commencement of the current offense and the total score from Items A-E
is 9 or less.
F.2 Score 0 if the offender was less than 41 years of age at the
commencement of the current offense or if the total score from Items A-
E is 10.
Special Instructions--Probation Violator This Time
Item A Count the original conviction that led to the sentence of
probation as a prior conviction. Do not count the probation revocation
as a prior conviction.
[[Page 70694]]
* * *
Item E By definition, no point is credited for this item. Exception: A
person placed on unsupervised probation (other than for deportation)
would not lose credit for this item.
* * * * *
Special Instructions--Parole or Supervised Release Violator This Time
Item A The conviction from which paroled or placed on supervised
release counts as a prior conviction.
Item B The commitment from which paroled or released to supervised
release (including a prison term ordered for a prior supervised release
revocation), counts as a prior commitment.
Item C Use the age at commencement of the violation behavior (including
new criminal behavior).
Item D Count backwards three years from the commencement of the
violation behavior (including new criminal behavior).
* * *
Item F Use the age at commencement of the violation behavior (including
new criminal behavior).
Special Instructions--Confinement/Escape Status Violator With New
Criminal Behavior in the Community This Time
* * *
Item F Use the age at commencement of the confinement/escape status
violation.
* * * * *
Subpart B--Transfer Treaty Prisoners and Parolees
Sec. 2.68 [Amended]
3. Section 2.68 is amended at paragraph (l) by removing
``5B1.4(a)'' and adding ``5D1.3(a) and (c)'' in its place.
Dated: November 18, 2002.
Edward F. Reilly, Jr.,
Chairman, U.S. Parole Commission.
[FR Doc. 02-29952 Filed 11-25-02; 8:45 am]
BILLING CODE 4410-31-P