Section 3833. 3. Provisions of S. 1, as Reported Subsection (a) requires the Bureau of Prisons to conduct a complete study of the prisoner, including a study of the prisoner's criminal history, his social background, his abilities and health, and the type of rehabilitative programs available for him. The Bureau is required. to provide the Parole Commission with its reports and with its recommendations with regard to the prisoner. Under subsection (b) the Parole Commission is empowered to obtain further information from probation officers and other government agencies and, where compatible with the public interest, to receive recommendations from them. Finally, under subsection (c), the Parole Commission is empowered to conduct such other investigations as it believes to be warranted. The scheme of the section provides the Parole Commission with as much information as possible in order to make an informed decision to release a prisoner or to retain him in custody. 1. In General SECTION 3833. PAROLE INTERVIEW PROCEDURE The provisions of this section govern the Parole Commission's interview of an eligible prisoner. The prisoner is entitled to notice of the hearing, to an opportunity to select a representative to aid him at the hearing, and to review reports provided to the Commission. A record is required to be made of the interview, and a statement of reasons for a denial of parole or parole upon special conditions must be given the prisoner. 2. Present Federal Law The governing provisions of current Federal law are found only in regulations. 28 C.F.R. 12 provides for notice of a hearing, representation by a person of the prisoner's choosing for the purpose of making a statement at the hearing, expression of views by interested parties adverse to the granting of parole, and preparation of a record sealed from the prisoner's review. 28 C.F.R. 2.13 provides for written reasons for the denial of parole. 3. Provisions of S. 1, as Reported Subsection (a) requires that the Parole Commission interview a prisoner who is being considered for parole unless the prisoner signs a written waiver.17 Subsection (b) provides for written notice of the interview and specifies that the prisoner may choose to aid him at the interview a person qualified under the rules of the Parole Commission. It is intended that such a representative would ordinarily be a spouse or other family member, a potential employer, or another person who is familiar with the prisoner and his family, who could give the Commission additional insight into the family, community, and employment situation that the prisoner would encounter were he then to be released on parole. Although the Commission's rules concerning representatives may not exclude attorneys as a class, the capacity in which any representative 17 The interviews will ordinarily be conducted, as they are today (see 28 C.F.R. 2.23), by hearing examiners employed by the Parole Commission. See the proposed chapter 39 to be added to title 28 of the United States Code by section 725 of S. 1, as reported. Section 3834. appears is as an assistant to the prisoner and to the Commission in making a statement and assuring an understanding of the facts, not as an advocate in a courtroom.18 The Commission's rules concerning representation will, it is expected, assure orderly and expeditious interview proceedings. 19 Subsection (c) provides the prisoner with pre-interview access to the various reports and other materials prepared for the use of the Parole Commission. An exception to such access is made for the type of materials exempt from disclosure under Rule 32 of the Federal Rules of Criminal Procedure. The exception would include diagnostic opinions which might disrupt the prisoner's program of rehabilitation, information obtained upon a promise of confidentiality, or other information which might lead to harm to any person if revealed. However, where the exception is applied, the Commission shall, as far as is possible, provide a general summarization of the nature of the material withheld unless any such summarization might occasion the same dangers that prompted the original withholding 20 Subsection (d) requires the making of a record of the proceedings and provides that the prisoner may be granted access to that record upon the making of a proper showing indicating good cause. In determining whether good cause has been demonstrated, it is assumed that the Commission will balance the interests expressed by the prisoner with the expense and any potential harm that might result from making the record available. Subsection (e) parallels current regulations in requiring that the prisoner be furnished reasons for denial of parole, but extends that requirement to include grants of parole on special conditions. An oral explanation by a representative of the Commission is required where feasible; such an explanation could be given at the conclusion of the parole interview if a decision has been reached at that time, or could follow the furnishing of written reasons.21 SECTION 3834. TERM AND CONDITIONS OF PAROLE 1. In General The section provides for the length of parole terms, the manner in which such terms are to be computed, and the early termination of such terms. In addition it provides for the imposition and modification of conditions of parole and specifies criteria for imposing such conditions. 2. Present Federal law 22. Under current law, a term of parole extends from release until the expiration of the maximum term specified in the original sentence, except for the longer, special parole terms made applicable for certain narcotics offenses.23 Paradoxically, the present system results in longer 18 See Hearings, p. 4050 (statement of Maurice Sigler, Chairman, Board of Parole). 19 By specifying that a representative of the prisoner may appear at the interview the Committee does not mean to suggest that a representative of other interested persons may not be permitted by the Parole Commission to appear. It is expected that such representa tion will be allowed at the discretion of the Commission, as it is currently (28 C.F.R 2.12(a)), subject to such regulations as the Commission may adopt. 20 It is expected that the agency supplying the Commission with the material that is withheld from the prisoner will, if it is the source of the request for withholding, provide the Commission with a suggested summarization designed to balance the interests involved. 21 See Hearings, p. 4051 (statement of Maurice Sigler, Chairman, Board of Parole). 22 18 U.S.C. 4203; 28 C.F.R. 2.43. 23 21 U.S.C. 841 (b); 28 C.F.R. 2.43 (c). Such terms extend beyond the term of imprisonment and thus are similar to the parole terms of the Code which may extend beyond the time authorized or imposed for imprisonment. parole terms for those offenders who, by virtue of their early release, are recognized as being the best parole risks. The Board of Parole is granted broad discretion in imposing conditions of parole under 18 U.S.C. 4203. That statute includes reference to such specific conditions as geographic limitations, residence in community treatment centers, and narcotics treatment in appropriate cases, and 18 U.S.C. 4204 permits the release of an alien prisoner to be conditioned upon his deportation. The regulations add little gloss to this area, but provide for certain travel restrictions 24 and require that the conditions of parole be stated on the release certificate.25 Broad authority for modifying the conditions of parole, and for releasing the parolee from such conditions, is granted to the Parole Board by current law, but no authority exists for terminating the parole of an adult offender except by revocation or by expiration of the original sentence.26 3. Provisions of S.1, as Reported Subsection (a), unlike current law, gives the Parole Commission authority to set the term as well as the conditions of a prisoner's parole. Subsection (b) provides that the term must be at least one year and no more than five years. Thus a prisoner's term of parole may extend past the term of the sentence imposed or may terminate prior to the running of the term of imprisonment. No longer will the term be keyed inflexibly to the period of the original sentence-a period that in practice often proves to be inappropriately long or else too short to permit the accomplishment of the purposes that guided release is designed to achieve. The Code for the first time will permit the tailoring of the term to fit the needs indicated by the particular case. Subsection (c) contains the conditions of parole. These parallel the conditions of probation found in section 2103. The sole mandatory condition required is that the parolee not commit a crime while on parole. The provisions concerning discretionary conditions incorporate by reference those found in section 2103 and discussed earlier in this report, and, like section 2103 (b) (18), permit the imposition of any other appropriate condition. In imposing conditions the Commission is admonished to consider the need to protect the public from further crimes of the parolee and to consider the need of the parolee for further rehabilitation.27 Where the prisoner is subject to deportation, the Commission, as under current law, may require as a condition of parole that he be deported and remain outside the United States. All parole conditions are to be clearly set forth in writing.2 28 Subsections (d) and (e) provide that the parole term commences on the day that the prisoner is released from imprisonment and that the term runs concurrently with any other term of parole or probation but does not run while the parolee is imprisoned for any other Federal or 24 28 C.F.R. 2.45. 25 28 C.F.R. 2.44. 26 18 U.S.C. 4207; 28 C.F.R. 2.44, 2.46. 27 As noted earlier in the discussion of the discretionary conditions of probation, the need for further rehabilitative measures that must be evaluated under section 2831 (c) and under this section may in some cases be satisfied best by release upon specified conditions and may in other cases be satisfied best by continued incarceration. The conclusion in any specific case is left to the informed discretion of the Parole Commission. 28 As indicated in the discussion of the parallel provision in the probation chapter (sec tion 2103 (d)), and as is the case under current law, the validity and effect of the conditions are not contingent upon their being furnished in writing. Section 3835. State offense. This latter qualification is required to accomplish the purpose of parole-evaluation by an on-the-street test of the parolee's ability and inclination to live freely in society without reverting to criminal behavior. Subsection (f) provides that a parole term may be reduced after the expiration of one year. The Commission is required to review each parolee's status after two years of parole, and annually thereafter. Subsection (g) permits the modification of the term and conditions of parole at any time. The foregoing provisions of the section are flexible enough to allow for tailoring the parole term and conditions to the individual prisoner at the time of parole and, in addition, to allow for post-parole modification of the term where the parolee's conduct warrants such alteration. Where the parolee's behavior warrants such action, conditions may be removed, the term may be reduced, or an unconditional discharge may be granted. On the other hand, where the parolee's behavior is less than satisfactory, the Commission has the power to enlarge the conditions of parole and to extend the term of parole (where the maximum term has not already been imposed). All such modifications of course are to be made only after due consideration of the incapacitive and rehabilitative needs that are required to be considered in ordering and setting the conditions of the original release. Under subsection (h) any term of parole is conditional and subject to revocation until its expiration or early termination. Since release on parole is a matter of discretion based on an informed but tentative prognosis, it is proper that the Parole Commission retain the authority to revoke what it has conditionally granted where the parolee is shown to have abused the trust placed in him. 1. In General SECTION 3835. REVOCATION OF PAROLE The section provides the procedure for dealing with alleged parole violators. It covers the issuance of warrants, preliminary appearances, revocation hearings, modes of disposition, reimprisonment, and reparole. 2. Present Federal Law 18 U.S.C. 4205 and 28 C.F.R. 2.49 provide for the issuance of a warrant by the Parole Board or by a member of the Board upon satisfactory evidence that a parolee has violated any condition of his release. Such warrants may issue only during the maximum period to which the parolee has been sentenced. Notice as to the charges against the parolee must be provided at the time of service.29 Service of the warrant is followed by a preliminary interview to determine if there is probable cause to hold the prisoner for a revocation hearing. At the interview the prisoner is informed of the revocation procedure, advised of his right to delay the proceedings in order to seek counsel or appointment of counsel, and advised that he may request confrontation with the adverse witnesses. After the preliminary interview the hearing officer must report his findings concerning probable cause to the Regional Director, who may then return the prisoner to parole, order a 29 28 C.F.R. 2.52. revocation hearing, or order the prisoner held pending a revocation hearing. If a revocation hearing is ordered it may, upon the prisoner's request, be held locally before the prisoner's return to incarceration if such a hearing would facilitate production of witnesses or the retention of counsel, if the prisoner has not been convicted of a crime while on parole, and if the prisoner denies the charges against him. At the revocation hearing itself the prisoner is entitled to counsel and to confront and call witnesses. The hearing has two purposes― first, to determine whether the prisoner has violated conditions of his parole, and, second, to determine whether his parole should be revoked or reinstated.30 If revocation occurs the time spent on parole is not credited against the remaining sentence.31 In general, the current statutory and regulatory provisions must be read in light of the Supreme Court's decision on Morrissey v. Brewer,32 a decision the current regulations are designed to reflect. 3. Provisions of S.1, as Reported Subsection (a) provides that upon a parolee's violation of a condition of his parole a warrant for the parolee's arrest may be issued by the Commission and may be executed by the officers assigned such responsibilities by subchapter B of chapter 30. Obviously, not every violation of a condition of parole will be considered sufficiently serious to prompt the issuance of a warrant; under current practice, such warrants "are not lightly issued," 33 and it is expected that this practice will continue. Under subsection (b), a preliminary appearance is provided to assure that the parolee has adequate notice of the violation alleged and an opportunity to admit or deny the violation. The appearance is to take place "without unnecessary delay," the standard of Rule 5(a) of the Federal Rules of Criminal Procedure with respect to initial appearances before magistrates in criminal prosecutions. While individual circumstances, such as the availability of hearing officials and of evidence may or may not differ from those in criminal prosecutions, it is believed that the standard with respect to promptness is reflective of similar considerations and is sufficiently flexible to be adjusted to varying situations. If the parolee does not admit the violation, a preliminary hearing is ordinarily to be held, unless waived. The subsection does not attempt to set forth a complete and detailed guide for the procedures to be followed at such a hearing. Neither does it seek to freeze the dicta of Morrissey v. Brewer into statutory form. The decision in Morrissey was an initial exploration by the Supreme Court into an area to which it had not previously given consideration. The Court expressly declined to write a code of procedure for parole revocation practice and repeatedly emphasized that its views as to the requirements of due process were tentative.34 Furthermore, Morrissey was not a Federal parolee, and different considerations may sometimes apply. Post-Morrissey litigation has produced a variety of conflicting rulings from a host of 30 28 C.F.R. 2.56. 31 18 U.S.C. 4205: 28 C.F.R. 2.51. 32 408 U.S. 472 (1972). 33 Hearings, supra note 21. at 4052. 34 Supra note 32, at 485-490. |