[Federal Register: April 7, 2003 (Volume 68, Number 66)]
[Rules and Regulations]
[Page 16718-16720]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07ap03-3]
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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 its procedures
governing the mandatory release of military prisoners confined in
Federal civilian prisons. Such mandatory release is earned through good
time credits. The
[[Page 16719]]
amendment implements a Department of Defense Instruction that permits
the U.S. Parole Commission to place a military prisoner who is released
from a Federal civilian prison under ``mandatory supervision as if on
parole'' until the expiration of the sentence imposed, if the
Commission determines that such supervision is necessary for the
orderly transition of the offender back into community.
DATES: Effective Date: April 7, 2003.
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: Former Department of Defense regulations did
not permit any military prisoner who was released by operation of law
due to good time credits to be subject to supervision in the community
for the remainder of the imposed sentence. This was in contrast to the
requirement that applies to Federal civilian prisoners who are eligible
for but denied parole. Prisoners sentenced by military courts martial
and then transferred to a Federal institution come under the exclusive
jurisdiction of the U.S. Parole Commission for parole purposes pursuant
to 10 U.S.C. 858. Thus, in the absence of any rule authorizing post-
release supervision for military mandatory releasees, there was a gap
in the Commission's authority to require post-release supervision for
military prisoners mandatorily released on good time from institutions
operated by the Federal Bureau of Prisons. (The Bureau of Prisons
considered former 18 U.S.C. 4164--which authorizes mandatory release
supervision for federal civilian prisoners eligible for parole--to be
inapplicable to military prisoners who committed their crimes on or
after November 1, 1987.) Thus, if the Commission denied parole and
continued a military prisoner to the expiration of his sentence, the
Commission was not able to supervise the offender. However, if the
Commission paroled the military prisoner prior to the mandatory release
date, the Commission could supervise the military offender just as any
other parolee to the expiration of the prisoner's sentence.
At the request of the Attorney General of the United States, the
Department of Defense has amended its regulations regarding the
mandatory release of military prisoners, including prisoners in the
custody of the Bureau of Prisons. See DoD Instruction 1325.7,
``Administration of Military Correctional Facilities and Clemency and
Parole Authority,'' July 17, 2001. These regulations generally allow
for the supervision of military prisoners mandatorily released with
good time deductions.\1\ In the regulations, the Department of Defense
adopted a policy to use mandatory supervision in all cases except where
the Service Clemency and Parole Boards find it inappropriate. The
regulations also permit the Parole Commission to place military
prisoners who are in Federal civilian custody on ``mandatory
supervision'' after they are mandatorily released, if the Commission
finds that such supervision is appropriate ``to provide an orderly
transition to civilian life for released prisoners and to protect the
communities into which the prisoners are released.'' See DoD
Instruction 1325.7 (6.20.8). However, the DoD Instruction is silent as
to whether the Commission should, as the Department of Defense has
done, adopt a general presumption that mandatory supervision is
appropriate. Additionally, the new DoD instruction may be applied only
to offenders who committed their crimes 30 days or more after the rule
change. Therefore, under the terms of the DoD instruction, the
Commission can only require supervision if the prisoner committed his
crime on or after August 16, 2001.
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\1\ Mandatory supervision for military offenders differs from
mandatory release for ``old law'' U.S. Code offenders under 18
U.S.C. 4164 since such supervision runs to the full term without the
180-day reduction that applies to civilian, ``old law'' mandatory
releasees.
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The Commission is adopting a paragraph at the end of 28 CFR 2.35 so
that the Commission's rules will conform to the Department of Defense
regulations and policy regarding the mandatory release of military
prisoners. Pursuant to the DoD Instruction, the amended rule states
that when the Commission orders a military offender continued to
expiration, the military prisoner will be placed on ``mandatory
supervision'' until the expiration of his sentence if the Commission
finds that the DoD criteria are met. The Commission is adopting this
rule in order to give military offenders incarcerated in federal
civilian prisons notice that, if the Commission denies the prisoner
parole and continues the prisoner to the expiration of the prisoner's
sentence, the prisoner may be required to serve a period of mandatory
supervision after the prisoner's release. Although the Commission
already has the authority under Department of Defense regulations to
order mandatory supervision for military prisoners who committed their
offenses on or after August 16, 2001, this rule further clarifies the
Commission's authority and explains the Commission's general statement
of policy regarding mandatory supervision.
The amended rule also includes the presumption that supervision is
appropriate for all military mandatory releasees unless case-specific
factors indicate that supervision is not appropriate. See DoD
Instruction 1325.7 (6.20.1). The Commission is adopting this
presumption for several reasons. First, the presumption in favor of
supervision conforms with the presumption in the DoD Instruction. The
inclusion of the presumption in favor of supervision after mandatory
release will thus result in a uniform application of the Instruction
among military offenders released from military and civilian
institutions. Most importantly, the Commission agrees with the
Department of Defense's general assessment that supervision in the
community is, for the majority of cases, a highly effective technique
to provide for a transition into the community and to protect the
communities into which the prisoners are released. Therefore, the rule
states that mandatory supervision shall be presumed unless the
Commission finds case-specific factors illustrating that such
supervision is inappropriate.
Finally, the final rule makes one change from the interim rule
regarding early termination of mandatory supervision. 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. See Parole
Commission Rules and Procedures Manual 2.43-04. Accordingly, the
Commission is clarifying the final sentence of the rule, noting that
the authority to terminate a military prisoners mandatory supervision
rests with the appropriate military clemency board. The rule now makes
it clear that a prisoner on ``mandatory supervision'' will be subject
to the conditions of parole at 28 CFR 2.40 unless the appropriate
military clemency board takes action terminating the prisoner's
supervision or sentence.
Implementation
This final rule will be implemented for any military offender
mandatorily released on good time deductions from a Federal civilian
prison if the offender committed his offense after August 15, 2001.
[[Page 16720]]
Regulatory Assessment Requirements
The U.S. Parole Commission has determined that this interim rule
does not constitute a significant rule within the meaning of Executive
Order 12866. The interim 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 Amended Rule
0
Accordingly, the U.S. Parole Commission is adopting the following
amendments to 28 CFR part 2.
PART 2--[AMENDED]
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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
0
2. Section 2.35 is amended by revising the following paragraph (d):
Sec. 2.35 Mandatory release in the absence of parole.
* * * * *
(d) If the Commission orders a military prisoner who is under the
Commission's jurisdiction for an offense committed after August 15,
2001 continued to the expiration of his sentence (or otherwise does not
grant parole), the Commission shall place such prisoner on mandatory
supervision after release if the Commission determines that such
supervision is appropriate to provide an orderly transition to civilian
life for the prisoner and to protect the community into which such
prisoner is released. The Commission shall presume that mandatory
supervision is appropriate for all such prisoners unless case-specific
factors indicate that supervision is inappropriate. A prisoner who is
placed on mandatory supervision shall be deemed to be released as if on
parole, and shall be subject to the conditions of release at Sec. 2.40
until the expiration of the maximum term for which he was sentenced,
unless the prisoner's sentence is terminated early by the appropriate
military clemency board.
Dated: March 21, 2003.
Edward F. Reilly, Jr.,
Chairman, U.S. Parole Commission.
[FR Doc. 03-7850 Filed 4-4-03; 8:45 am]
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