U.S. DEPARTMENT OF JUSTICE United States Parole Commission
Office of the Chairman	5550 Friendship Boulevard Chevy Chase, Maryland 20815-7201 Telephone: (301) 492-5990 Facsimile: (301) 492-5307

U.S. PAROLE COMMISSION QUARTERLY MEETING MINUTES
CHEVY CHASE, MARYLAND
November 14, 2002

SUBMITTED: December 26, 2002

PRESIDING:		Edward F. Reilly, Jr., Chairman
PRESENT:		COMMISSIONERS: Michael J. Gaines, Commissioner John R. Simpson, Regional Commissioner STAFF: Tom Hutchison, Chief of Staff Rockne Chickinell, General Counsel Sam R. Robertson, Case Operations Administrator Patricia L. Denton, Case Services Administrator Judy I. Carter, Executive Officer Phyllis R. Baker, Hearing Examiner Donna McLean-Swayne, Hearing Examiner Paul R.A. Howard, Hearing Examiner Gregory E. Price, Hearing Examiner Casey Skvorc, Hearing Examiner Patricia W. Moore, Staff Assistant Jordana Randall, Secretary CITIZENS: Alan Chaset

 

Chairman Edward F. Reilly called the Quarterly Meeting of the United States Parole Commission (USPC) to order at 9:30 a.m., on Thursday, November 14, 2002, in the 4^th Floor Conference Room at 5550 Friendship Boulevard, Chevy Chase, Maryland.

The roll was taken. Commissioner Michael J. Gaines, 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.

Note: Due to Chairman Reilly required attendance at Attorney General's Ashcroft's meeting today at 11:00 a.m., the format of this meeting will be changed. Commissioner Gaines will preside upon the Chairman's departure and the agenda item will be first on the agenda, followed by the approval of the minutes and the quarterly reports.

Chairman Reilly thanked those who attended the Military Review Parole Board Members Meeting held at the U.S. Sentencing Commission November 13, 2002 hosted by the U.S. Parole Commission. It was a productive meeting and one that will was effective in keeping the lines of communication open.

The Commission has jurisdiction over approximately 350+ inmates.

ITEM I.

AGENDA ITEM: SALIENT FACTOR SCORING MANUAL AMENDMENTS.

Rockne Chickinell recommended the Commission consider a number of technical amendments to the salient factor scoring manual and approve the proposed amendments so that the changes may be published as final rules in the Federal Register. The rules and procedures manual is expected to be published in January. Consultant Peter Hoffman recommended many of the amendments in order to correct or clarify scoring instructions. Other changes implement advice given by the General Counsel's Office on the use of D.C. juvenile consent decrees and juvenile commitments. None of the proposed changes represent modifications of Commission policy in salient factor scoring. Mr. Chickinell acknowledged an erroneous reference to the U.S. Sentencing Guidelines in one of the Commission's rules for transfer treaty cases that must be corrected.

Mr. Chickinell recommended that the Commission adopt as final rules the proposed technical amendments to the salient factor scoring manual at 28 C.F.R. §2.20, and to the transfer treaty rule at 28 C.F.R.§2.68(1).

Mr. Chickinell opened the floor to any questions. Commissioner Simpson questioned if there were any changes to policy. Mr. Chickinell indicated that there were none. Commissioner Simpson motioned that the amendments to the salient factor scoring manual at 28 C.F.R. §2.20, and to the transfer treaty rule at 28 C.F.R.§2.68(1) be approved. Commissioner Gaines seconded the motion. There being no further questions, the vote was taken, which carried unanimously.

APPROVAL OF THE JULY 16, 2002 QUARTERLY MEETING MINUTES

The Chairman announced that the first item of business on the agenda was the approval of the July 16, 2002 Quarterly Meeting Minutes.

Commissioner Gaines moved for the adoption of the July 16, 2002 Quarterly Meeting Minutes. Commissioner Simpson seconded the motion. There being no corrections, additions, or amendments, the vote was taken, which carried unanimously.

ITEM II.

REPORTS FROM CHAIRMAN, COMMISSIONERS, EXECUTIVE SECTION, LEGAL, CASE OPERATIONS, CASE SERVICES AND RESEARCH UNITS.

Commissioner Reilly presented his report highlighting his visit to Ireland to meet with Ireland Parole Chair Gordon Holmes, Attorney General Rory Brady, U.S. Ambassador Richard Egan and Chief Justice Finnegan of the High Court. Ireland is in the process of establishing a parole board. A report of the Chairman's trip is available upon request. Other items included visitors to the Commission from the Government of Malaysia.

Commissioner Michael J. Gaines presented his report noting that it spoke for itself and opened the floor to any questions.

Commissioner John Simpson noted his report spoke for itself as well and opened the floor to questions.

Executive Officer Judy I. Carter highlighted her report by summarizing the status of our request for Dual Compensation Reduction Waiver. The Office of Personnel Management approved the request to continue using reemployed annuitants for an additional two years. Obtaining the waiver will allow the Commission to hire retired hearing examiners without the salary offset required to reduce their salary by the amount of their annuity. In addition, the Department of Justice approved our requests to include the Hearing Examiners under the primary law enforcement retirement provisions of the Federal Employee Retirement System and the Civil Service Retirement System and to change the "official titles" of the Correctional Treatment Specialist and the Supervisory Correctional Treatment Specialist to the "working titles" for Hearing Examiner, Case Operations Administrator, and Case Services Administrator.

Ms. Carter summarized new and pending hires, reassignments, separations, details and recruit actions for this quarter. A special thank you was given to the Federal Bureau of Prisons who granted the Commission a one year extension for the detailees. Coordinated the open season enrollment periods for Long Term Care Insurance, Health Insurance Benefits and the Thrift Savings Plan. Conducted four educational sessions for its newest employee benefits program-Long Term Care Program. A Breast Cancer Awareness Seminar for staff was held October 30. A special thank you was given to Kimberly Pierce and Ella Williams for being proactive again this year in requesting this seminar.

Construction was successfully completed to create a videoconferencing room and a small meeting room in Suite 260, and a training room and mailroom on the 4^th floor.

The FY2002 appropriation Act provided a net appropriation of $9,876,000 in funding for the Commission. However, the Counter-terrorism supplemental appropriation passed during the summer reduced our appropriation to $9,868,000. Since October 1, the entire government has been operating under a series of Continuing Resolutions. The current resolution expires on November 22, and it is not clear at this time, what the outlook is for enactment of appropriations acts. The Commission's budget request for FY2003 is 100 positions, 104 FTE work years and $10,862,000.

Tom Hutchison, Chief of Staff, reported on his activities for the quarter, noting his attendance at numerous meetings to include a meeting of the Criminal Justice Coordinating Council of the District of Columbia and meetings with personnel from other agencies, such as CSOSA, the Bureau of Prisons, the Administrative Office of the Courts, the U.S. Sentencing Commission and the Correctional Trustee and CURE's Public Meeting in South Carolina.

Mr. Hutchinson highlighted the Commission's Public Forum held on September 11 in which he was the moderator. Other activities included the legislation concerning the status of the Commission; hearing examiner panel recommendations to the Chairman and the negotiations with D.C. Superior Court, CSOSA and the BOP regarding serving conditions of supervised release on D.C felons sentenced to a term of supervised release.

Sam Robertson, Case Operations Administrator, reported on Case Operations Unit activities, highlighting great concern with inadequacies in receipt of parole information; experienced personnel loss; complications with the workforce; the expansion of the Bureau of Prisons parolable institutions; the limitation of annuitant availability and the decrease in hearing resources. In this one period, one hearing examiner has retired, one examiner has resigned and one employee designated as a part time examiner is no longer available to the Commission. The Commission has hired six new employees. Our goal is to make the hearing examiners as quickly as possible. Formal training has begun which is scheduled to run through October 2003. Hopefully, new staff will be able to compensate for the probable loss of the Commission's most experienced hearing resources, the reemployed annuitants, within the next calendar year. Mr. Robertson informed the Commissioners of the resignation of deputy administrator of Case Operations, Jacqueline Wynn. Ms. Wynn has decided to return to her position as hearing examiner. Again he noted another great loss to the unit as the burden continues to grow.

Mr. Robertson noted that the unit is continuing to look at the Expedited Revocation process. Effective the 18^th of this month, the probable cause docketing and hearing processes will be substantially modified. The significant changes involve starting the dockets earlier, at 11:00 a.m. rather than between noon and 12:30. Expanding the available hours for scheduling will increase the numbers scheduled (per examiner) from the previous six to eight. Accordingly, the same single examiner could now hear 16 cases, as opposed to 12 cases, in the same two-day docketing week.

Commissioner Gaines thanked Mr. Robertson for his candidness and echoed his sentiments regarding the complex nature of Commission and the toll that the work puts on employees. Commissioner Simpson suggested that a meeting with the Chairman be held to address personnel issues.

Pat Denton, Case Services Administrator, reported on staffing issues for the quarter. Case Services has one student working part-time issuing parole certificates. The unit is in the process of interviewing for an additional student. One clerk from the unit is on detail to the tax division of the Department. This detail ends in March 2003. A case analyst is on detail to the Community Corrections Division of the Bureau of Prisons. This detail ends in December 2002. Case Services has three detail staff from the Bureau of Prisons (BOP). Two are assigned as case analysts and one is a clerk. The BOP detail assignments have been extended for one year. The unit will soon be advertising the position of information specialist. Ms. Denton also noted a number of personnel concerns that would greatly impact the unit.

Federal and DC caseloads have increased in workload and telephone calls. The unit is divided into DC and federal post-release caseloads. The pre-release section is split by regions. Although the unit has been relieved of the responsibility for making and monitoring expedited revocation offers, in some urgent cases, analysts continue to make and monitor expedited offers. During the next quarter, there may be reassignments between pre-release and post-release to stabilize workloads.

Ms. Denton noted the modifications of procedures for issuing warrants. Time limit procedures are in place for the disposition of a warrant request by an analyst. During the last quarter, a new computer system, Fed Trak, was implemented to monitor a case as it flows through the system. Monitoring begins with receipt of the warrant and ends with the revocation decision. This system was implemented April 22, 2002. Fed Trak allows the Commission to monitor compliance with procedural time frames and allows for monitoring by case or by analyst. Ms. Denton submitted copies of information concerning response to warrant requests that was obtained from the new system. The information outlined the number of warrant requests received per month, the number declined and the reasons for declination.

Ms. Denton highlighted the modified procedures for probable cause findings and preliminary interviews and noted that the probable cause hearing process that was initiated in November is working well. The Case Services Unit sets up the dockets for hearings at the DC Jail. The revocation process and other supervision related work for the DC supervised release cases has begun. Cases are now being identified that have a term of supervised release and certificates of release are being issued either by the Bureau of Prisons or the Commission. In addition, the Case Services Unit has focused on eliminating the backlog in inmate/family correspondence. At this time inmate/family correspondence is current through June 2002. Jeff Kostbar, Helen Herman and Ms. Denton have reviewed correspondence that is a request for reopening under § 2.28. The reopen request backlog has significantly decreased this quarter.

Training for Case Services included re-certification of NCIC training, preponderance of the evidence, rescission guidelines, interviewing witnesses and supervised release procedures. Two analysts have been certified as NCIC trainers for the Commission.

CSOSA provided 5 weeks of training to analysts and other staff related to CSOSA supervision policies and procedures. Kathy Pinner and Ms. Denton provided training to CSOSA supervision officers in warrant request polices and procedures. Ms. Denton closed her report noting meetings she attended with BOP, CSOSA, Corrections Trustee and those within the Commission.

General Counsel Rockne Chickinell reported on the caseload for the General Counsel's Office noting the receipt of 159 new lawsuits during the third quarter of 2002 which he indicated was a slight increase over the previous quarter. The Commission processed 75 National Appeal Board appeals in the third quarter. The Freedom of Information Act staff received 202 requests in the third quarter and at last count has a backlog of 46 cases. There has been a turnover of FOIA staff. Ralph Ardito and student interns are filling the gaps and are doing a great job.

One notable case for this quarter was Lyons v. Mendez, 303 F.3d 285 (3^rd Cir. 2002). In this decision the U.S. Court of Appeals for the Third Circuit reversed a lower court decision and granted the petitioner habeas relief on his ex post facto claim. Lyons committed his federal drug and firearms law violations in 1986. On October 12, 1984 Congress eliminated federal parole and set in place provisions at Section 235(b) of the Sentencing Reform Act for the transition from a sentencing/punishment system with parole eligibility to one in which the offenders would serve determinate sentences. The key provision at Section 235(b)(3) required that the Parole Commission, shortly before its extinction, set release dates within the parole guidelines for prisoners still within its jurisdiction. Just after the determinate sentencing system went into effect in November, 1987, Section 235(b)(3) was amended on December 7, 1987 to permit the Commission to make this final round of release date determinations in accordance with the parole criteria at 18 U.S.C. §4206, and removed the requirement that the release dates had to be set within the parole guidelines.

The Parole Commission denied Lyons a parole date within his guidelines and continued him in custody until his mandatory release in July 2009. Lyons contended that he was entitled to the application of the original version of Section 235(b)(3) by the ex post facto provisions of the Constitution. According to Lyons, the law in effect at the time of his offenses in 1986 provided that he would receive a release date within his parole guidelines, and his punishment was unconstitutionally increased when the Commission applied the 1987 amendment to him and continued him in custody above the guidelines. Though Lyons lost at the district court level, the Third Circuit agreed with his claim and ordered his release on the habeas writ.

With the assistance of the legal office, the government has submitted a petition for rehearing to the Third Circuit panel that issued the decision. The petition points out that the Parole Commission remains in existence due to several laws extending the life of the Commission, and that Section 235(b)(3) has never become operative because its use was premised on an event that has never occurred, i.e., the imminent demise of the Commission and its functions. The government is awaiting a ruling on the rehearing petition. Even if the decision stands, and Supreme Court review is not pursued (or granted), the decision will likely benefit a limited number of prisoners incarcerated in the Third Circuit. Mr. Chickinell will continue to keep the Commission posted regarding the progress of this case and the number of prisoners this decision will impact.

Commissioner Simpson questioned what impact it would have on Commission staff if appeal rights were extended to D.C. prisoners. Mr. Chickinell noted that the Commission could explore a few alternatives such as extending the appeal right to the supervised release cases. Initially, this workload would be a very small number. It also could be extended further to cover DC parole revocation decisions. But, Mr. Chickinell noted that additional staff would be required.

On behalf of James Beck, Research Administrator, Tom Hutchison, Chief of Staff, reported the quarterly activities of the Research and Technology Unit. A few notable issues involved the continued tracking of the compliance plan agreed in Long v. Gaines. The Commission is no longer required to report to the court each month. When questioned about the current status of the proposed settlement in Long v. Gaines. Mr. Chickinell indicated that the proposed settlement has been signed by all parties and is before Judge Sullivan for review and approval.

The supervised release workgroup continues to meet. The workgroup is next scheduled to meet at the Rivers Correctional Facility on November 26 with case management staff as well as the Warden, Associate Wardens, and BOP oversight staff. The main topic will be the use of the Commission's video conferencing equipment to connect inmates with their mentors a few months prior to release.

The Commission's web page is progressing. Tish Cavaleri has taken on the role of the Commission's Web Master. Tish has improved the content of the web page and made it easier to use. New additions include the Rules and Procedures Memoranda, the History of the Commission prepared by Dr. Hoffman and a new mission statement. The News of the Commission and FOIA sections is being updated regularly and CSOSA is being added to the "Helpful Links" section.

The Records Center staff has taken on additional duties. They now produce and send out F-3 letters in certain circumstances, they respond to requests from BOP and CSOSA for copies of previously issued parole certificates, they continue to box and mail files for F-3 supervision report review, and until recently delivered revocation packets to PDS. In the event there is a problem with the electronic delivery of packets to PDS, they will deliver the packets by hand. Section staff conducted training with the new examiners and the new staff in the FOIA section on information security and the Commission's Rules of Behavior.

There being no further business, Commissioner Gaines recessed the meeting until 2:00 p.m. or until the Chairman's return.

 

SUBMITTED BY:

________________________
Patricia W. Moore
Recording Secretary