Federal and State courts,35 and the Supreme Court itself is reviewing some of its implications at the present time. Full compliance with the decisions of the Supreme Court on constitutional requirements will in no way be hindered by leaving questions of detail to administration in the context of future judicial decisions and implementing regulations.37

Under subsection (c), the revocation hearing is to take place either immediately following the finding of probable cause, or within 60 days thereafter, at a place near to that of the arrest or alleged violation. If the parolee has been convicted and sentenced to more than 180 days for a crime committed subsequent to his parole, the revocation hearing is to be held in the prison to which he is confined within 180 days of the filing of a warrant or detainer against him. Notice of the conditions alleged to have been violated and the time, place, and purpose of the hearing must be given.

Subsection (d) specifies that at the revocation hearing the parolee is entitled to be present and to have the assistance of retained or appointed counsel. The parolee must be informed of the evidence against him, which need not be admissible under the rules of evidence for court trials. He may cross-examine witnesses who appear against him, call witnesses on his own behalf, and present other evidence, but where there has been a conviction of a new offense, relitigation of the facts would not be required.38 At the close of the hearing the Parole Commission is to determine whether a condition of parole has been violated.

39

Under subsection (e), if the Commission determines that the parolee has not violated a condition of his parole, the warrant (or detainer) must be withdrawn. If the Commission finds that the parolee has violated a condition of his parole, the Commission must make a decision as to disposition, which may be to continue the parole, with or without modification of conditions or extension of the term, or may be to revoke parole, in which case the parolee is to be ordered confined for the term of the original sentence minus the time served in confinement prior to the parole, or for the contingent term of imprisonment, whichever is longer. As observed earlier with regard to the provisions concerning the modification of the term and conditions of parole, the Commission's determination of the appropriate response to a violation of a condition of parole should be as balanced as, and subject to the same considerations as, the parole release decision itself, with appropriate weight being given to the relative seriousness or lack of seriousness of the violation and to the likelihood of its recurrence. The prisoner of course is entitled to be heard on the question of disposition, as well as on the question of whether he has violated. his parole.

Subsection (f) permits revocation in certain situations after the term of parole has expired, paralleling the analogous provision relating to delayed revocation of probation.40

35 See Annotation, 36 L. Ed. 1077 (1973).

36 Gerstein v. Pugh, cert. granted, U.S., 94 S.Ct. 567 (1973).

37 It should be noted that the parallel provisions concerning revocation of probation are not specified in the Code but are included in Rule 32 (e) of the Federal Rules of Criminal Procedure.

38 Morrisey v. Brewer, supra note 32, at 490.

* See section 2303.

40 Section 2105 (b).

Under subsections (g) and (h), if a return to prison is ordered, credit for the time to be served is granted as of the parolee's return to the custody of the Bureau of Prisons. The prisoner then becomes subject to consideration for reparole under the same provisions as are applicable to other eligible prisoners.

SECTION 3836. APPEAL FROM PAROLE COMMISSION DETERMINATION

1. In General

This section provides for administrative appeal, in ceratin cases, from a determination of the Parole Commission, and sets forth certain of the procedural aspects of such an appeal.

2. Present Federal Law

42

Decisions of Parole Board panels may now be reviewed in several ways. The Regional Director may, sua sponte, review a decision and forward the case with his vote to the National Appellate Board.11 A prisoner may file an appeal with the Regional Director and his appeal will be heard by a panel of three regional directors. That decision may in turn be appealed to the National Appellate Board which has the power to affirm, modify, or reverse the decision or to order a rehearing. Cases classified as original jurisdiction cases appealed directly to the National Appellate Board.15

3. Provisions of S. 1, as Reported

44

may be

Subsection 3836 (a) provides for appeal by the prisoner in three instances first, where parole is denied; second, where conditions of parole are required other than those incorporated by reference in section 3834; third, where parole is revoked or modified. The Attorney General is also expressly empowered to appeal a decision with respect to parole, a matter now permitted indirectly by the provisions of 28 C.F.R. 2.28. Either person has thirty days from the date of decision to submit a notice of appeal. The appeal is to be decided by the majority vote of a panel of three. As is currently the situation, the decision whether to allow an appellant or his representative to appear in person before the appellate panel is left to the panel's discretion.47

46

Subsection (b) provides for appeals in cases where original jurisdiction is retained by the Parole Commission. In such a situation, on application of the affected individual or of the Attorney General, or on motion of any commissioner on the panel, the panel's decision may be appealed to the National Appeals Board.

Subsection (c) provides that no commissioner may participate in an appeal to the National Appeals Board if he had acted on the initial decision or on an earlier appeal therefrom.

41 28 C.F.R. 2.24.

42 28 C.F.R. 2.25.

43 28 C.F.R. 2.26. 44 28 C.F.R. 2.17.

45 25 C.F.R. 2.27.

46 It is expected that this power will continue to be utilized relatively sparingly but that it will, when warranted, be exercised. It clearly would not be in the public interest, for example, if the Attorney General were to decline to file an appeal where the hearing panel plainly had given inadequate consideration to seriously adverse information concerning the prisoner, just as it would not be in the public interest if he were regularly to oppose routine grants of parole.

47 See 28 C.F.R. 2.25 (b), 2.27(b).

Section 3841.

SECTION 3837. INAPPLICABILITY OF ADMINISTRATIVE PROCEDURE ACT

This section has been included in the light of ongoing litigation with regard to the applicability of the Administrative Procedure Act to parole decisions. The Committee is of the view that since the parole procedures incorporated in the Code assure substantial fairness, and parole decisions, and the issues and considerations underlying them, differ sufficiently from the usual nature of administrative determinations the application of the Administrative Procedure Act is both unnecessary and unwarranted.48

SUBCHAPTER E.-DEATH SENTENCE

(Section 3841-3842)

Current law relating to the execution of death sentences is contained in 18 U.S.C. 3566. This subchapter largely carries forward that section. For purposes of clarity, the current law is divided so that provisions pertaining to the execution of the death sentence are contained in section 3841, and provisions pertaining to the use of State or local employees and facilities and payment therefor are embodied in section 3842.

SECTION 3841. IMPLEMENTATION OF A DEATH SENTENCE

The first sentence of this section relating to the custody of a person sentenced to death is new. It provides that a person sentenced to death pursuant to chapter 24 is to be held in the custody of the Bureau of Prisons until execution. The Committee does not intend to limit the right to release pending appeal under section 3504 by this provision, although clearly release of a defendant under sentence of death pending appeal, either of his conviction or his sentence, will be a rare occurrence requiring extraordinary circumstances. The Committee has included this provision merely to preclude any confusion over the disposition of a condemned person who is confined between the time of sentencing and the time of execution.

The second sentence of section 3841 relating to the manner of execution contains provisions essentially the same as those contained in the first sentence of 18 U.S.C. 3566. The only significant difference between the two is that the word "state" is substituted in section 3841 for the word "place" which appears in current law. The word "state" is defined in section 111 and is broad enough to apply to territories

48 In including this section in the Code, the Committee has omitted as unnecessary the language concerning the finality of Parole Commission determinations that had been incorporated in section 3-12F7 of S. 1 as originally introduced. Under either approach, judicial review would be limited to issues of constitutional magnitude.

42-525-75-30

and possessions of the United States as well as to areas formally recognized as States.

The third sentence of section 3841 relating to removal of a condemned person from one State to another for execution of a sentence of death contains provisions essentially the same as those contained in 18 U.S.C. 3566.

The fourth and final sentence of section 3841, prohibiting the execution of a sentence of death on a pregnant person is new and is patterned on an amendment included in the recently passed Senate bill on capital punishment.1 It is added for obvious public policy and humanitarian reasons.

SECTION 3842. USE OF STATE FACILITIES

The provisions of section 3842 are essentially the same as those contained in the second sentence of 18 U.S.C. 3566. The section refers to the duty of the United States marshal to supervise the execution of sentence whereas 18 U.S.C. 3566 refers to the duty of the marshal to execute the sentence. The insertion of the word "supervision" more clearly defines the marshal's duty and precludes confusion over who actually performs the act of inflicting death.

1 S. 1401, 93d Cong., 2d Sess., § 1. The bill passed the Senate on March 13, 1974. See 120 Cong. Rec. S 3721 (daily ed.).

PART V. ANCILLARY CIVIL PROCEEDINGS

Part V of the Criminal Code provides for supplementary civil proceedings in connection with criminal matters. Chapter 40 is designed to give law enforcement authorities greater flexibility in their fight against crime. It authorizes the civil forfeiture of property used, intended for use, or possessed in the commission of certain enumerated crimes. Furthermore, it permits the Attorney General to seek restraining orders to prevent and restrain racketeering type offenses and to seek injunctions against acts or practices that constitute or could constitute a fraudulent scheme in violation of section 1734.

Chapter 41 is designed to compensate persons who have been injured by the commission of specific Federal crimes. It provides a civil cause of action for persons injured as a result of racketeering activities, or who have had their oral private communications unlawfully intercepted. It also establishes a victim compensation fund whereby a victim of an offense set forth in chapter 16 will be compensated for his injuries. Part of the funds used for this program will be obtained from the payment of criminal fines.

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