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SECTION 3824. RELEASE OF A PRISONER

Section 3824 (a) covers material now contained in 18 U.S.C. 4163 and 4164 relating to the release of prisoners at the expiration of their terms and the service of parole following release.

Under 18 U.S.C. 4163, a prisoner is released at the expiration of his sentence less the time deducted for good conduct. Under 18 U.S.C. 4164, a prisoner who is released is deemed to have been released on parole until the expiration of his maximum term less 180 days.

Section 3824 (a) provides that a prisoner who has not previously been released on parole is to be released on parole at the expiration of his term of imprisonment. Under the new Criminal Code, there are no provisions for good time allowances, so the references to these have been omitted from section 3824 (a). The good time allowances have been criticized as not substantially contributing to desired behavior and as being onerous to administer. Furthermore, the liberalized parole possibilities of this title should provide ample incentive for good behavior. Of course, prisoners who are already in prison on the effective date of this Act will be entitled to the statutory good time credit previously earned. The terminology in section 3824 (a) relating to parole is also different from that in 18 U.S.C. 4163 and 4164 because of the provision in the new Code for a term of parole for all prisoners that is to follow their term of imprisonment.14

Section 3824 (a) also contains a provision which permits the Bureau of Prisons to release the prisoner on the last preceding weekday if the date of the expiration of his term of imprisonment falls on a weekend or a legal holiday. This early release is discretionary with the Bureau; nevertheless, the Bureau may not keep the prisoner incarcerated longer than his term. Therefore, if the prisoner is not released on the last preceding weekday, he must be released on the Saturday, Sunday, or holiday. This subsection codifies existing law.15

Section 3824 (b), relating to the allotment of clothing, transportation, and funds to a prisoner relased on parole, is derived from 18 U.S.C. 4281 and 4284, with several changes. The amount of money to be furnished a prisoner has been raised to a maximum of $500 rather than $100, and the provision of 18 U.S.C. 4284 for loans to prisoners has been omitted. The Committee has concluded that a small amount of financial asistance may be sufficient to get an offender started in the right direction, but that the $100 maximum sum permitted under existing law may often be inadequate. The loan provisions in existing law have not proved successful, having caused greater administrative costs. and difficulties than the amount of money involved justifies. Accordingly, the total amount of money which can be given a prisoner has been raised to $500 with no provision for a small loan. The determination of the amount to be given each prisoner under section 3824 (b) is to be made by the Director of the Bureau of Prisons, rather than the Attorney General, in keeping with other amendments to the Code placing day-to-day control of the operations of the Bureau of Prisons in the Director.

Finally, the prisoner must be furnished transportation to one of three places: (1) the place of conviction; (2) his bona fide residence

14 See subchapter D of chapter 38.

15 18 U.S.C. 4163.

within the United States; or (3) any other place authorized by the Parole Commission.

The Bureau of Prisons could, of course, provide transportati on expenses rather than actually providing transportation, but the funds for transportation are not to be included in the amount of mone y provided the prisoner under section 3824 (b) (2) to assist him upon entering his term of parole. This provision is essentially the same as that contained in 18 U.S.C. 4281, except that under that provision, the determination of the place to which a prisoner would be transported was made by the Attorney General. This decision is more logically made by the Parole Commission in the course of setting conditions for release of the prisoner on parole under section 3834.

SUBCHAPTER D.-PAROLE

Subchapter D governs the mechanics of the parole system. It contains provisions concerning the time of first consideration for parole: the criteria for release on parole; reconsideration upon denial of parole; pre-parole reports; pre-parole interviews; the term and conditions of parole; revocation of parole; and appeals from Parole Commission decisions.1

Much of the general subject matter contained in this subchapter is presently covered only in the most cursory fashion by current statutes, and some is not covered at all, leaving a great deal of controlling law to the regulations of the Department of Justice governing the Board of Parole. While implementing regulations will always be required under any statutory structure governing the parole process, it is believed by the Committee that the basic aspects of the process and the general principles underlying its application should be set forth in statutory form. It is the purpose of this subchapter to set forth the mechanics of a parole system that is integrated in philosophy and design with the sentencing system adopted in Part III of the Code, and thereby to make them, in combination, a rational, functioning entity.2 In the assessment and weighing of the many competing considerations involved in the designing of a workable parole framework, and in the drafting of the language of this subchapter, the Committee has relied heavily on the extensive work of Senator Burdick and the members and staff of the Subcommittee on National Penitentiaries in the preparation of S. 1463 (93rd Cong. 2nd Sess.). Almost all aspects of that bill have been incorporated in S. 1, as reported primarily in this subchapter and in the new chapter 39 to be added to title 28 of the United States Code-with the tailoring necessary to accommodate

1 The organization and powers of the Parole Commission are contained in the new chapter 39 that section 725 of S. 1, as reported, would add to title 28 of the United States Code.

2 Parole, as is true of other aspects of the penal and correctional process, has been the subject of an increasing amount of litigation over the past few years. The codifying of the most important policies and procedures should serve to reduce this volume if only because of the greater clarity that codification provides.

the format of the Code and its systematized sentencing interrelationships.

SECTION 3831. CONSIDERATION OF A PRISONER RELEASE ON PAROLE

1. In General

This section sets the time at which a prisoner becomes eligible for parole, sets the time at which the Parole Commission must consider granting parole, and establishes criteria for determining whether or not to grant parole. If a prisoner is not granted early release on parole, the section requires mandatory release on parole at the expiration of the sentence of imprisonment.

2. Present Federal Law

Existing Federal law in this area is found in both statutes and regulations. Eligibility is governed first by 18 U.S.C. 4202, which provides that a prisoner serving more than 180 days is eligible for parole after having served either one-third of his term or fifteen years. A court may impose a lesser period of ineligibility by applying the provisions of 18 U.S.C. 4208 (a) (1) at the time of sentencing or may avoid the application of any such term by applying the provisions of 18 U.S.C. 4208 (a) (2). The provisions of 28 C.F.R. § 2.2 follow the statutory language of section 4202; the provisions of 28 C.F.R. § 2.3 provide that where a minimum sentence has been ordered the prisoner is eligible for parole upon the expiration of that minimum sentence.

4

The regulations do not state when the first consideration shall take place. They do, however, require an application for parole and state that such applications shall be given to those eligible for parole; in practice the first consideration occurs at the first visit of a representative of the board after eligibility and application.

18 U.S.C. 4203 provides broad statutory grounds for release on parole. Where "there is a reasonable probability that such prisoner will live and remain at liberty without violating the laws, and if in the opinion of the Board such release is not incompatible with the welfare of society" the Board has discretion to grant parole. 18 U.S.C. 4202 adds the requirement that a prisoner must have observed the rules of the institution in which he is confined. In addition, the regulations require consideration of a wide variety of specific factors including just punishment, rehabilitation, the views of the prosecutor and the trial judge, and the circumstances of the offense and background of the offender, and provide a detailed chart on offense severity and characteristics with numerical prognoses indicating the likelihood of successful parole.

The regulations require reconsideration of parole within three years after an initial denial, or at the time of the prisoner's completion of one-third of the sentence adjudged, whichever is earlier."

Mandatory release is required, if parole has not been granted, at one hundred eighty days prior to the expiration of a prisoner's sentence. "less good time." 8 This release is as if on parole.

3 There are currently two sets of regulations. Reference is made here to the 1974 regulations which are gradually being introduced nationwide. See note following 28 C.F.R. 2.57. 4 28 C.F.R. 2.11.

5 See also 28 C.F.R. 2.18.

628 C.F.R. 2.13, 2.19, and 2.20.

7 28 C.F.R. 2.14.

8 28 C.F.R. 2.39.

3. Provisions of S.1, as Reported

Subsection (a) governs eligibility for parole providing that a prisoner who has been sentenced to a term of six months or more is eligible for parole after completing his term of parole ineligibility, or is eligible at any time if no term of eligibility has been imposed. A prisoner sentenced to a term of less than six months is not eligible for earlier release.

Subsection (b) provides that a prisoner shall receive his first consideration for parole at least sixty days prior to the completion of a term of parole ineligibility where one has been imposed. Where no period of ineligibility has been imposed such first consideration is required to take place at least sixty days prior to the expiration of the term of imprisonment or the first year of that term whichever is earlier. It should be noted that consideration for parole is required to take place at the times indicated; such consideration may, at the Parole Commission's discretion, take place at an earlier time if under the circumstances of a particular case it appears to be warranted. In any instance, although such consideration may take place prior to a prisoner's eligibility for parole, his date of release may not precede his date of eligibility.

Subsection (c) delineates the criteria to be applied by the Parole Commission in determining whether to exercise its authority to release a prisoner on parole. The first four criteria for release the first two of which are generally considered to be encompassed within the broad "welfare of society" criterion of 18 U.S.C. 4203 and the latter two of which are encompassed by the criterion of 18 U.S.C. 4203 concerning remaining at liberty without violating the laws-are interrelated with the similar criteria set forth in the earlier sentencing provisions of the Code.9

Where no period of parole ineligibility has been set, the Parole Commission, after weighing the available information concerning both the offender and the offense, is required to consider the four general purposes of a sentence to imprisonment and the compatibility of release at that time with the effectuation of those four purposes.10 Since the sentencing court has already determined that the circumstances warranted the offender's imprisonment, the role of the Parole Commission is to determine whether the additional information made available to it through the passage of time indicates that those four purposes have adequately been fulfilled." Consequently, the Commission, to find parole appropriate, would have to determine that release at that time would not serve to prevent the administration of just punishment; would not undermine the deterrent impact of the sentence;

9 See sections 2302 and 2304.

10 The Commission is also required to consider whether release at that time would have a substantially adverse effect on institutional discipline. a matter currently considered as a result of the requirements of 18 U.S.C. 4202 and 28 C.F.R. 2.13(b)(3) and 2.29, and a matter that may have increased importance in encouraging adherence to institutional rules in view of the Code's elimination of the "good time" provisions of current law. Disciplinary infractions currently may result both in a loss of "good time" and in a postponement of parole; under the Code, they would result only in a possible delay in parole on the grounds that release would signal to other inmates of the institution that such infractions may carry no serious consequences. (Of course repeated infractions may also evince a continuing need for incapacitation or rehabilitation-or perhaps just an inability to cope with the artificial environment of a penal institution-another matter for the Parole Commission's evaluation.)

11 For this reason, creating a presumption in favor of parole, as has been urged by some (see. e.g., the statement on behalf of the National Legal Aid and Defenders' Association. Hearings, p. -), would be still less supportable than creating a presumption in favor of probation an approach previously rejected by the Committee (see the discussion concerning section 2102 of the Code, supra).

Section 3832.

would not subject the public to an undue risk of future criminal acts; and would not deprive the prisoner of needed rehabilitative treatment. Ordinarily in a case in which no period of parole ineligibility was imposed by the court the first two purposes of sentencing may be found to be satisfied by the time of the prisoner's service of a relatively minor portion of the total term, the court apparently having believed that the necessary punative and deterrent requirements could be achieved either by the imposition of the sentence itself or by the service of the routine period prior to first consideration for parole. Of course, to the extent that the sentencing court in a particular case has indicated that a sentence to a term of imprisonment is imposed solely for certain specified purposes, the focus of the Parole Commission's consideration would appropriately be only upon the continued efficacy of imprisonment for those purposes.

Where a term of parole ineligibility has been imposed the first two specified criteria are inapplicable since, in imposing the ineligibility period, the sentencing court has already determined and set the period of imprisonment required to satisfy these factors.

It is expected that in making its evaluation under either paragraph (1) or paragraph (2) of subsection (c), the Parole Commission will continue to employ means of systematizing its consideration of the many pertinent factors.12

Subsection (d) provides for yearly reconsideration where parole has been denied. It also provides, however, that in a case in which release within an additional year would be inappropriate, the Parole Commission may defer reconsideration for a period not to exceed two years. Current regulations permit such deferral for a period of three years.13 Subsection (e) states that a prisoner who is still in custody at the time of the expiration of his sentence shall be released on parole at that time. By providing that such release is to be on parole, rather than unrestricted, the Code, unlike current law, assures that offenders whose history or behavior warrants incarceration for the entire duration of the sentence adjudged will be afforded a period of street supervision upon release,1 rather than being thrust into society to sink or swim as their untempered inclinations or circumstances may influence them. The potential term for which such offenders may be reimprisoned following a violation of the conditions of the parole is set forth in section 2303 (b) of the Code.

1. In General

SECTION 3832. PRE-PAROLE REPORTS

The section assures the Parole Commission of the availability of reports and recommendations of the Bureau of Prisons, probation officers, and other government agencies, and permits it to undertake its own investigations, in order properly to evaluate whether a prisoner should be released and what conditions such a release should carry. 2. Present Federal Law

Current statutory law contains a reference to the Parole Board's consideration of a report "by the proper institutional officers." 15 In addition, applicable regulations refer to reports from various prosecutorial, investigatory, and penal authorities. 16

12 See. e.g., 28 C.F.R. 2.20.

13 28 U.S.C. 2.14 (d).

14 This approach was suggested by the National Commission. Final Report § 3402 (3). 1518 U.S.C. 4203 (a).

18 28 C.F.R. 2.21.

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