B-196458.OM, APR 23, 1980

B-196458.OM: Apr 23, 1980

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AN ANALYSIS OF PRESENT AND PROPOSED LAW IS ATTACHED. EACH S. 1722 RELEASE AUTHORIZATION IS CONTRASTED WITH PARALLEL OR RELATED PROVISIONS OF EXISTING LAW. SUPERVISED RELEASE IS DEVELOPED IN GREATER DETAIL THAN THE OTHER S. 1722 RELEASE MECHANISMS. SINCE IT IS INTENDED TO BE A SUBSTITUTE FOR THE CURRENT PAROLE SCHEME. ALTHOUGH REVOCATION OF PAROLE AND REIMPRISONMENT ARE SANCTIONS AVAILABLE TO THE PAROLE COMMISSION FOR ENFORCING CONDITIONS OF RELEASE. REVOCATION OF "SUPERVISED RELEASE" AND REIMPRISONMENT ARE NOT EXPLICITLY MADE AVAILABLE TO THE COURTS UNDER S. 1722. 3. WHILE S. 1722 ABOLISHES SYSTEMATIC EARLY PAROLE RELEASE AND ALTHOUGH SUPERVISED RELEASE IS NOT AN EARLY RELEASE MECHANISM.

B-196458.OM, APR 23, 1980

SUBJECT: IMPACT OF CRIMINAL CODE REFORM BILL S. 1722 ON PAROLE (B-196458; CODE 182640)

TEAM LEADER, CINCINNATI REGIONAL OFFICE, MIKE MURPHY:

THIS RESPONDS TO YOUR REQUEST THAT WE EVALUATE CRIMINAL CODE REFORM PROPOSAL S. 1722 AS IT RELATES TO PAROLE. IF ENACTED, S. 1722 WOULD ABOLISH THE U. S. PAROLE COMMISSION, AND PAROLE - AT LEAST AS WE KNOW IT TODAY - WOULD NO LONGER EXIST. AN ANALYSIS OF PRESENT AND PROPOSED LAW IS ATTACHED.

THIS ANALYSIS BEGINS WITH AN OVERVIEW OF PAROLE UNDER PRESENT LAW, AND THEN SEPARATELY ADDRESSES THE SEVERAL RELEASE MECHANISMS CONTEMPLATED BY S. 1722 - I.E., "SUPERVISED RELEASE," "MODIFICATION OF AN IMPOSED TERM OF IMPRISONMENT," "PRE-RELEASE CUSTODY," AND "TEMPORARY RELEASE." EACH S. 1722 RELEASE AUTHORIZATION IS CONTRASTED WITH PARALLEL OR RELATED PROVISIONS OF EXISTING LAW. SUPERVISED RELEASE IS DEVELOPED IN GREATER DETAIL THAN THE OTHER S. 1722 RELEASE MECHANISMS, SINCE IT IS INTENDED TO BE A SUBSTITUTE FOR THE CURRENT PAROLE SCHEME.

ATTACHMENT

IMPACT OF CRIMINAL CODE REFORM PROPOSAL S. 1722 ON PAROLE

DIGESTS:

1. CRIMINAL CODE REFORM PROPOSAL S. 1722 WOULD REPLACE PAROLE WITH A POST -IMPRISONMENT TERM OF SUPERVISED RELEASE WHICH WOULD BE IMPOSED IN THE DISCRETION OF THE SENTENCING COURT AS PART OF A SENTENCE AND WOULD COMMENCE UPON EXPIRATION OF A TERM OF IMPRISONMENT. THE U. S. PAROLE COMMISSION WOULD BE PHASED OUT AND ITS ADJUDICATIVE RESPONSIBILITIES TRANSFERRED TO THE COURTS; PRISONERS ALREADY ON PAROLE GENERALLY WOULD REMAIN SUBJECT TO CURRENT PAROLE LAW.

2. ALTHOUGH REVOCATION OF PAROLE AND REIMPRISONMENT ARE SANCTIONS AVAILABLE TO THE PAROLE COMMISSION FOR ENFORCING CONDITIONS OF RELEASE, REVOCATION OF "SUPERVISED RELEASE" AND REIMPRISONMENT ARE NOT EXPLICITLY MADE AVAILABLE TO THE COURTS UNDER S. 1722.

3. WHILE S. 1722 ABOLISHES SYSTEMATIC EARLY PAROLE RELEASE AND ALTHOUGH SUPERVISED RELEASE IS NOT AN EARLY RELEASE MECHANISM, THE BILL DOES PROVIDE MEANS BY WHICH A PRISONER MIGHT BE RELEASED PRIOR TO THE EXPIRATION OF HIS PRISON TERM. OF GREATEST POTENTIAL IMPACT IN THIS REGARD ARE THE PROVISIONS PERMITTING MODIFICATIONS OF IMPOSED TERMS OF IMPRISONMENT ON THE DEFENDANT'S MOTION.

ATTACHMENT

IMPACT OF CRIMINAL CODE REFORM PROPOSAL S. 1722 ON PAROLE

I. OVERVIEW OF PAROLE UNDER PRESENT LAW

PAROLE IN CRIMINAL LAW IS THE RELEASE OF A CONVICT FROM IMPRISONMENT, UPON CERTAIN CONDITIONS, PRIOR TO THE EXPIRATION OF THE TERM OF IMPRISONMENT ORIGINALLY IMPOSED. IT IS A PRIVILEGE, NO PRISONER BEING ENTITLED TO PAROLE AS A MATTER OF RIGHT, AND IS A MATTER OF EXPRESS STATUTORY LAW IN FEDERAL JURISDICTIONS. ONE COURT DEFINED PAROLE AS FOLLOWS:

"PAROLE IS A PROCEDURE BY WHICH A PRISONER WHO MUST IN ANY EVENT BE RETURNED TO SOCIETY IN THE FUTURE IS ALLOWED TO SERVE THE LAST PORTION OF HIS SENTENCE OUTSIDE PRISON WALLS AND UNDER STRICT SUPERVISION, AS PREPARATION FOR HIS EVENTUAL RETURN TO SOCIETY." SELLERS V. BRIDGES, 153 FLA. 586, 15 SO. 2D. 193, 148 ALR 1240.

UNDER PRESENT LAW, PAROLE RELEASE DETERMINATIONS ARE SEPARATE AND DISTINCT FROM PAROLE ELIGIBILITY DETERMINATIONS, THE DECISION TO RELEASE BEING CONDITIONED IN THE FIRST INSTANCE UPON A PRISONER'S ELIGIBILITY FOR PAROLE. SECTION 4205 OF TITLE 18, U.S.C. PROVIDES THE SENTENCING COURT WITH THREE ALTERNATIVE METHODS FOR ESTABLISHING A DEFENDANT'S PAROLE ELIGIBILITY DATE. SECTION 4205(A) PROVIDES THAT ALL FEDERAL PRISONERS ARE AUTOMATICALLY ELIGIBLE FOR PAROLE RELEASE CONSIDERATION AFTER SERVING ONE- THIRD OF THEIR MAXIMUM TERM OR AFTER SERVING TEN YEARS OF A SENTENCE OF 30 YEARS OR MORE. UNDER SECTION 4205(B)(1), HOWEVER, A COURT MAY DESIGNATE A MINIMUM TERM IN A SENTENCE OF IMPRISONMENT, WHICH CANNOT BE GREATER THAN ONE-THIRD OF THE MAXIMUM TERM, AND AT THE EXPIRATION OF WHICH A PRISONER AUTOMATICALLY BECOMES ELIGIBLE FOR PAROLE. UNDER SECTION 4205(B)(2), THE COURT MAY FIX ONLY A MAXIMUM TERM, AND SPECIFY THAT THE PRISONER BE RELEASED ON PAROLE ONLY AT SUCH TIME AS THE PAROLE COMMISSION SHALL DETERMINE. IN SUCH CASES, THE PRISONER IS IMMEDIATELY ELIGIBLE FOR PAROLE.

UNDER OTHER PROVISIONS OF PRESENT LAW, A TERM OF CONFINEMENT MAY BE SHORTENED EVEN AFTER IT IS IMPOSED. A MINIMUM TERM, ACCORDING TO SECTION 4205(G) OF TITLE 18, MAY BE REDUCED BY THE COURT TO TIME ALREADY SERVED AT ANY TIME UPON MOTION OF THE BUREAU OF PRISONS. A PRISONER MAY IN THIS MANNER BECOME IMMEDIATELY ELIGIBLE FOR RELEASE.

ALTHOUGH PAROLE ELIGIBILITY ORDINARILY IS DETERMINED JUDICIALLY AT THE TIME OF SENTENCING, SEE 18 U.S.C. SEC. 4205(B), PAROLE RELEASE DECISIONS ARE WITHIN THE EXCLUSIVE PROVINCE OF THE PAROLE COMMISSION, AN INDEPENDENT AGENCY WITHIN THE DEPARTMENT OF JUSTICE. THE PAROLE COMMISSION IS COMPRISED OF 9 MEMBERS APPOINTED BY THE PRESIDENT WITH THE ADVICE AND CONSENT OF THE SENATE. UNLIKE ITS PREDECESSOR, THE PAROLE BOARD, THE PAROLE COMMISSION IS A SEGMENTED ENTITY; 5 OF ITS 9 MEMBERS ARE DESIGNATED AS REGIONAL COMMISSIONERS, 3 COMPRISE THE NATIONAL APPEALS BOARD AND ONE IS A CHAIRMAN SELECTED BY THE PRESIDENT. SEE 18 U.S.C. SECS. 4202, 4203(A)(2). THIS REGIONALIZATION OF THE STRUCTURE AND MECHANICS OF PAROLE DECISIONMAKING REPRESENTS AN ATTEMPT TO BRING THE PAROLE PROCESS CLOSER TO THE INSTITUTIONS WHERE OFFENDERS ARE HOUSED, AND TO THE COMMUNITIES WHERE THEY WILL BE RELEASED. SEE SENATE REP. NO. 94-369, 94TH CONG., 1ST SESS. 14 (1976).

THE PAROLE COMMISSION MAKES FEDERAL PAROLE RELEASE DECISIONS, SETS THE CONDITIONS OF RELEASE AND OVERSEES THE SUPERVISION OF PAROLEES THROUGH THE FEDERAL PROBATION SERVICE. THE COMMISSION ALSO IS EMPOWERED TO ISSUE WARRANTS FOR THE APPREHENSION OF PAROLEES BELIEVED TO HAVE VIOLATED RELEASE CONDITIONS, AND TO MODIFY CONDITIONS OF PAROLE OR TO REVOKE IT ALTOGETHER UPON FINDING THAT A VIOLATION OCCURRED. SEE 18 U.S.C. SECS. 4203(B), 4214(D). DISCRETION OF THE COMMISSION IN MAKING THESE DETERMINATIONS IS EXTREMELY BROAD, AND THE COMMISSION'S DECISIONS AND FINDINGS ARE RARELY DISTURBED BY THE COURTS. SEE E.G., LONG V. BRISCOE, 568 F.2D 119 (7TH CIR. TEX. 1978); GERAGHTY V. U. S. PAROLE COMMISSION, 579 F.2D 238 (2ND CIR. PA. 1978).

PRISONERS SENTENCED TO MORE THAN ONE YEAR ARE ENTITLED TO A PROMPT INITIAL PAROLE RELEASE DETERMINATION BY THE PAROLE COMMISSION. A PRISONER MUST BE CONSIDERED FOR RELEASE, WHENEVER FEASIBLE, AT LEAST 30 DAYS BEFORE HE IS FIRST ELIGIBLE FOR PAROLE OR, IF HE IS IMMEDIATELY ELIGIBLE, WITHIN 120 DAYS OF IMPRISONMENT. SEE 18 U.S.C. SEC. 4108(A). AS A MATTER OF POLICY, HOWEVER, THE COMMISSION ATTEMPTS TO UNDERTAKE A FIRST CONSIDERATION OF EVERY PRISONER WITHIN 120 DAYS OF IMPRISONMENT, AND ESTABLISHES A PRESUMPTIVE RELEASE DATE AT THAT TIME. SEE 28 C.F.R. SEC. 2.12(A).

PANELS OF HEARING EXAMINERS, OPERATING UNDER GUIDELINES ISSUED BY THE FULL COMMISSION, CONDUCT INITIAL PAROLE HEARINGS TO ESTABLISH PRESUMPTIVE RELEASE DATES, WHICH MUST BE AFFIRMED, MODIFIED OR REVERSED BY THE REGIONAL COMMISSIONER BEFORE BECOMING FINAL. (FN1) SEE 18 U.S.C. SEC. 4208; 28 C.F.R. SEC. 2.12 (1978). IF A PAROLE RELEASE DETERMINATION IS INITIALLY DISAPPROVED, A PRESUMPTIVE RELEASE DATE UNSATISFACTORY, OR THE INITIAL ACTION OTHERWISE ADVERSE, THE PRISONER MAY REQUEST RECONSIDERATION BY THE REGIONAL COMMISSIONER. AN ADVERSE DECISION AT THE REGIONAL COMMISSIONER LEVEL MAY BE APPEALED TO THE NATIONAL APPEALS BOARD. SEE 18 U.S.C. SEC. 4203(C)(4); SEE ALSO 28 C.F.R. SEC. 2.26.

WHERE IT IS ALLEGED THAT PAROLE RELEASE CONDITIONS HAVE BEEN VIOLATED, A PAROLEE IS ENTITLED TO A PROMPT PRELIMINARY HEARING TO DETERMINE WHETHER PROBABLE CAUSE EXISTS TO BELIEVE HE HAS VIOLATED A CONDITION OF PAROLE. UPON A FINDING OF SUCH PROBABLE CAUSE, A PAROLE REVOCATION HEARING - A FULL HEARING ON THE MERITS OF THE ALLEGATION - MUST BE CONDUCTED. SEE 18 U.S.C. SEC. 4214(A); SEE ALSO MORRISEY V. BREWER, 408 U.S. 472 (1972). CONVICTION FOR OTHER THAN A MINOR STATE OR FEDERAL OFFENSE DURING THE PERIOD OF PAROLE SUPERVISION CONSTITUTES PROBABLE CAUSE AND THUS OBVIATES THE NEED FOR A PROBABLE CAUSE HEARING. REVOCATION OF PAROLE IS ALMOST AUTOMATIC UNDER THESE LATTER CIRCUMSTANCES, AND THE COMMISSION'S ROLE IS REDUCED TO DETERMINING WHAT PORTION OF THE UNSERVED ORIGINAL SENTENCE THE PAROLEE SHOULD BE REQUIRED TO SERVE. SEE S. REP. NO. 94-369, SUPRA, AT 17 -18; SEE ALSO 18 U.S.C. SEC. 4214(B)(1) AND (D).

IMPACT OF S. 1722 ON PAROLE

THE TERM "PAROLE" IS NOT USED IN THE PROPOSED CRIMINAL CASE. INSTEAD, S. 1722 AUTHORIZES A SO-CALLED "SUPERVISED RELEASE PERIOD," MEANING THAT OFFENDERS COULD BE RELEASED FOR A SPECIFIED PERIOD UNDER SUPERVISION AFTER THEY HAD SERVED THE FULL TERM OF IMPRISONMENT IMPOSED AT SENTENCING. 1722 ALSO PROVIDES SEVERAL MECHANISMS THAT MIGHT BE UTILIZED BY THE COURTS TO RELEASE PRISONERS IN ADVANCE OF THE EXPIRATION OF THEIR ORIGINAL SENTENCE. SUPERVISED RELEASE, TOGETHER WITH S. 1722'S OTHER RELEASE MECHANISMS, IS DISCUSSED BELOW.

A. S. 1722 - SUPERVISED RELEASE

THE PRESENT PAROLE SYSTEM WOULD BE PHASED OUT OVER THE FIVE YEAR PERIOD FOLLOWING THE EFFECTIVE DATE OF S. 1722. SEE SEC. 134(B)(1)(A) OF S. 1722. INSTEAD OF A PAROLE COMMISSION DECIDING UPON THE SUITABILITY OF PRISONERS FOR EARLY RELEASE, S. 1722 PROVIDES FOR THE DISCRETIONARY IMPOSITION BY THE SENTENCING COURT OF A TERM OF SUPERVISED RELEASE AS PART OF THE SENTENCE, TO COMMENCE UPON EXPIRATION OF A TERM OF IMPRISONMENT. SECTION 2303(A) PROVIDES:

"THE COURT, IN IMPOSING A SENTENCE TO A TERM OF IMPRISONMENT IN EXCESS OF ONE YEAR, MAY INCLUDE AS A PART OF THE SENTENCE A REQUIREMENT THAT THE DEFENDANT BE PLACED ON A TERM OF SUPERVISED RELEASE AFTER IMPRISONMENT."

INDETERMINATE SENTENCING AND SYSTEMATIC EARLY RELEASE ARE DISCARDED BY S. 1722 IN FAVOR OF SENTENCES THAT PROVIDE FOR RELEASE ON A MORE CERTAIN DATE, AND WHICH TEND TO REQUIRE INCARCERATION FOR THE FULL TERM OF IMPRISONMENT SET AT SENTENCING. THIS, OF COURSE, DIFFERS MARKEDLY FROM THE PRESENT SYSTEM OF PAROLE. UNDER PRESENT LAW, PRISONERS ARE ALMOST ALWAYS RELEASED ON PAROLE PRIOR TO THE EXPIRATION OF THE TERM OF IMPRISONMENT IMPOSED AT SENTENCING. ALSO, PAROLE REQUIRES AN ADMINISTRATIVE DETERMINATION OF THE PROPRIETY OF EARLY RELEASE AFTER SENTENCING BUT THE PROPRIETY OF SUPERVISED RELEASE UNDER S. 1722 WOULD BE DETERMINED JUDICIALLY AT THE TIME OF SENTENCING. SEE SECS. 2302(C), 3824(B), 3824(C) AND 3822 OF S. 1722.

1. SUPERVISED RELEASE:TERMS AND CONDITIONS

PRESENT LAW

A TERM OF PAROLE UNDER CURRENT LAW COMMENCES UPON RELEASE AND RUNS UNTIL THE EXPIRATION OF THE TERM OF IMPRISONMENT SPECIFIED IN THE ORIGINAL SENTENCE. SEE 18 U.S.C. SEC. 4210(A). EARLY TERMINATION OF PAROLE IS POSSIBLE UNDER 18 U.S.C. SEC. 4211(A) ON THE PAROLE COMMISSIONER'S OWN MOTION OR UPON REQUEST BY THE PAROLEE. SECTION 4211(B) OF TITLE 18 REQUIRES PERIODIC REVIEWS OF THE NEED FOR CONTINUED SUPERVISION WHILE SECTION 4211(C) PRECLUDES SUPERVISION FOR A PERIOD OF MORE THAN 5 YEARS UNLESS THE COMMISSION AFFIRMATIVELY DETERMINES, AFTER A HEARING, THAT "SUPERVISION SHOULD NOT BE TERMINATED BECAUSE THERE IS A LIKELIHOOD THAT THE PAROLEE WILL ENGAGE IN CONDUCT VIOLATING *** CRIMINAL LAW."

THE PAROLE COMMISSION IS AUTHORIZED BY 18 U.S.C. SEC. 4209(A) TO IMPOSE OR MODIFY CONDITIONS OF PAROLE IF THEY ARE "REASONABLE TO PROTECT THE PUBLIC WELFARE," AND REASONABLY RELATED TO THE NATURE AND CIRCUMSTANCES OF THE OFFENSE AND THE HISTORY AND CHARACTERISTICS OF THE PAROLEE. SECTION 4209(A) ALSO REQUIRES THE COMMISSION TO IMPOSE THE CONDITION THAT THE PAROLEE NOT COMMIT ANOTHER FEDERAL, STATE OR LOCAL CRIME WHILE ON PAROLE. WHILE SECTION 4209(B) REQUIRES THAT CONDITIONS BE "SUFFICIENTLY SPECIFIC," IT CONTAINS NO SPECIFIC EXAMPLES OF DISCRETIONARY CONDITIONS THE COMMISSION MIGHT IMPOSE.

PROPOSED LAW

THE DURATION OF A PERIOD OF SUPERVISED RELEASE UNDER S. 1722 WOULD VARY BASED UPON THE NATURE OF THE CONVICTION. TERMS OF SUPERVISION ARE GRADUATED TO REFLECT THE SERIOUSNESS OF THE OFFENSE AND IN GENERAL, THE DESIRABILITY OF LONGER SUPERVISION PERIODS FOR THE MORE SERIOUS FELONIES (NOTE: THIS CONTRASTS WITH THE OPERATION OF PAROLE UNDER WHICH THE EARLIEST RELEASEES ARE SUBJECTED TO THE LONGEST PERIODS OF SUPERVISION, ALTHOUGH THE FACT THAT THEY QUALIFY FOR EARLY RELEASE MIGHT INDICATE A LESSER NEED FOR SUPERVISION). SECTION 2303(B) OF S. 1722 PROVIDES THAT SUPERVISION WILL CONTINUE FOR A MAXIMUM THREE YEARS FOR CLASS A AND B FELONIES, TWO YEARS FOR CLASS C AND D FELONIES, AND ONE YEAR FOR CLASS E FELONIES AND TWO OR MORE MISDEMEANORS.

S. 1722 WOULD ABOLISH THE PAROLE COMMISSION, AND IN ITS STEAD ESTABLISH AS AN INDEPENDENT COMMISSION IN THE JUDICIAL BRANCH A UNITED STATES SENTENCING COMMISSION. (FN2) RESPONSIBILITIES OF THE COMMISSION WOULD INCLUDE THE SETTING OF GUIDELINES FOR SENTENCING AND SUPERVISED RELEASE, TOGETHER WITH THE FORMULATION OF POLICY RELATING TO SENTENCING AND APPLICATION OF THE GUIDELINES. SEE SEC. 994 OF S. 1722. RESPONSIBILITY FOR SETTING AND ENFORCING THE CONDITIONS OF SUPERVISED RELEASE CONSISTENT WITH THE GUIDELINES WOULD BE VESTED IN THE SENTENCING COURT. SEE SEC. 2303(D) OF S. 1722. THE DURATION AND PROPRIETY OF A SENTENCE TO A PERIOD OF SUPERVISED RELEASE, DETERMINED INITIALLY BY THE TRIAL COURT IN ACCORDANCE WITH SENTENCING GUIDELINES, WILL BE REVIEWABLE UNDER CERTAIN CIRCUMSTANCES BY THE FEDERAL COURT OF APPEALS. SEE SEC. 3725(A) OF S. 1722. AS UNDER PRESENT LAW, RELEASE WOULD BE EXPRESSLY CONDITIONED UPON THE NON-COMMISSION BY THE RELEASEE OF ANY FEDERAL, STATE OR LOCAL CRIMES DURING THE SUPERVISION PERIOD. 18 U.S.C. SEC. 2303(D). ANY DISCRETIONARY CONDITIONS IMPOSED, INCLUDING THOSE LISTED IN SECTION 2103(B) (E.G., MAKE RESTITUTION TO THE VICTIM AND MEET FAMILY RESPONSIBILITIES), MUST BE REASONABLY RELATED TO SECTION 2003(A) SENTENCING CONSIDERATIONS, INVOLVE THE MINIMUM DEPRIVATION OF LIBERTY NECESSARY TO REHABILITATE THE DEFENDANT WHILE PROTECTING THE PUBLIC, AND BE CONSISTENT WITH ANY PERTINENT POLICY STATEMENTS ISSUED BY THE SENTENCING COMMISSION.

SECTION 2303(E)(1) WOULD PERMIT A COURT, WHERE CONSISTENT WITH SECTION 2003(A) SENTENCING CONSIDERATIONS, TO TERMINATE A TERM OF SUPERVISED RELEASE AND DISCHARGE THE RELEASEE AT ANY TIME AFTER THE EXPIRATION OF 1 YEAR OF SUPERVISED RELEASE, PROVIDED IT IS SATISFIED THAT SUCH ACTION IS WARRANTED BY THE CONDUCT OF THE RELEASEE AND IS IN THE INTERESTS OF JUSTICE.

2. SUPERVISED RELEASE: VIOLATION OF RELEASE CONDITIONS

PRESENT LAW

WHEN IT IS ALLEGED UNDER PRESENT LAW THAT A PAROLEE VIOLATED CONDITIONS OF PAROLE, THE PAROLE COMMISSION IS AUTHORIZED BY 18 WARRANT. FOLLOWING COMPLIANCE WITH A SUMMONS OR WARRANT, A PRELIMINARY HEARING IS HELD BEFORE THE COMMISSION TO DETERMINE WHETHER PROBABLE CAUSE EXISTS TO BELIEVE THE PAROLEE HAS VIOLATED A RELEASE CONDITION. AT THIS "PROBABLE CAUSE" HEARING, 18 U.S.C. SEC. 4214 REQUIRES THAT THE PAROLEE BE INFORMED OF THE REVOCATION PROCEDURE, AFFORDED AN OPPORTUNITY TO SECURE COUNSEL OR APPOINTMENT OF COUNSEL, AND ADVISED THAT HE MAY CONFRONT ADVERSE WITNESSES, PRESENT EVIDENCE AND TESTIFY ON HIS OWN BEHALF. SEE MORRISSEY V. BREWER, 408 U.S. 472 (1972). IF PROBABLE CAUSE IS FOUND, THE COMMISSION MAY EITHER SET A REVOCATION HEARING DATE OR, IF CONTINUATION OF REVOCATION PROCEEDINGS IS NOT WARRANTED, RETURN THE PAROLEE TO PAROLE SUPERVISION. SEE 18 U.S.C. SEC. 4214(A)(1). THE FOLLOWING ARE OPTIONS WHICH THE COMMISSION MAY EXERCISE UNDER PRESENT LAW, 18 U.S.C. SEC. 4214(D), UPON A FINDING THAT A PAROLEE HAS VIOLATED CONDITIONS:

1) RESTORE THE PAROLEE TO SUPERVISION;

2) REPRIMAND THE PAROLEE;

3) MODIFY THE PAROLEE'S RELEASE CONDITIONS;

4) REFER THE PAROLEE TO A COMMUNITY TREATMENT CENTER FOR ALL OR A PART OF THE REMAINDER OF HIS ORIGINAL SENTENCE; OR

5) FORMALLY REVOKE PAROLE AND RETURN THE PAROLEE TO PRISON.

PROPOSED LAW

UNDER PRESENT LAW, PAROLEES ARE SUBJECT TO REIMPRISONMENT FOR THE UNSERVED REMAINDER OF THEIR ORIGINALLY IMPOSED SENTENCE FOR VIOLATING RELEASE CONDITIONS. S. 1722, HOWEVER, PROVIDES NO EXPLICIT AUTHORITY FOR REIMPRISONMENT UNDER THOSE CIRCUMSTANCES, PRINCIPALLY BECAUSE THE TERM OF SUPERVISED RELEASE ORDINARILY WOULD NOT HAVE COMMENCED UNTIL AFTER THE OFFENDER HAD SERVED THE FULL TERM OF IMPRISONMENT IMPOSED AT SENTENCING. AS AN ALTERNATIVE MEANS FOR ENFORCING CONDITIONS OF RELEASE, SECTION 2303(E)(2) PROVIDES THAT A COURT MAY, AFTER CONSIDERING CERTAIN SENTENCING GOALS AND FOLLOWING A HEARING:

"*** EXTEND A TERM OF SUPERVISED RELEASE IF LESS THAN THE MAXIMUM AUTHORIZED TERM WAS PREVIOUSLY IMPOSED, AND MAY MODIFY, REDUCE, OR ENLARGE THE CONDITIONS OF SUPERVISED RELEASE, PURSUANT TO THE PROVISIONS APPLICABLE TO THE INITIAL SETTING OF THE TERM AND CONDITIONS OF POST- RELEASE SUPERVISION."

S. 1722 IS SILENT ABOUT OTHER OPTIONS THAT MIGHT BE AVAILABLE TO A COURT, SUCH AS REIMPRISONMENT AS A CONTEMPT OF COURT FOR VIOLATING CONDITIONS OF SUPERVISED RELEASE.

3. SUPERVISED RELEASE: HEARINGS PRELIMINARY TO RELEASE AND APPEAL PROCEDURES

PRESENT LAW

INITIAL PAROLE RELEASE DETERMINATIONS ARE MADE BY PANELS OF HEARING EXAMINERS AND INVOLVE A DISCUSSION WITH THE PRISONER OF HIS SALIENT FACTOR SCORE, OFFENSE SEVERITY AND OTHER PERTINENT INFORMATION. SEE 28 C.F.R. SECS. 2.11 ET SEQ. UPON CONCLUSION OF THE PROCEEDING, THE PANEL MUST DISCLOSE ITS RECOMMENDED RELEASE DATE AND, IF PAROLE IS DENIED OR SCHEDULED TO COMMENCE MORE THAN SIX MONTHS AFTER THE HEARING DATE, THE PRISONER MUST BE NOTIFIED OF THE REASONS THEREFOR. A PRISONER'S RIGHTS AT ONE OF THESE HEARINGS ARE FAIRLY EXTENSIVE AND INCLUDE THE RIGHT TO REPRESENTATION AND ACCESS TO DOCUMENTS UPON WHICH THE PANEL BASED ITS DECISION.

WHENEVER RELEASE ON PAROLE IS DENIED, THE AFFECTED INDIVIDUAL MAY PETITION THE REGIONAL COMMISSIONER FOR RECONSIDERATION WITHIN 30 DAYS OF THE ADVERSE DECISION. SEE 18 U.S.C. SEC. 4215(A). THE REGIONAL COMMISSIONER MAY AFFIRM, MODIFY OR DENY THE ORIGINAL RECOMMENDATION AND HIS DECISION, IF ADVERSE TO THE PETITIONER, MAY BE SUBMITTED TO THE NATIONAL APPEALS BOARD ON APPEAL. THE ATTORNEY GENERAL ALSO MAY PETITION THE NATIONAL APPEALS BOARD FOR REVIEW OF A DECISION BY A REGIONAL COMMISSIONER. SEE 18 U.S.C. SEC. 4215(C).

PROPOSED LAW

ADJUDICATIVE RESPONSIBILITIES CURRENTLY VESTED WITH THE PAROLE COMMISSION WILL DEVOLVE ON THE COURTS UNDER S. 1722, INCLUDING THE RESPONSIBILITY TO MAKE INITIAL SUPERVISED RELEASE DETERMINATIONS, HOLD HEARINGS ON RELEASE CONDITION VIOLATIONS, AND HEAR REQUESTS FOR EARLY TERMINATION OF SUPERVISION.

S. 1722 MAKE NO PROVISION FOR APPEALING THESE DETERMINATIONS EXCEPT THAT, AS PART OF A DEFENDANT'S SENTENCE, THE INITIAL SUPERVISED RELEASE DETERMINATION MAY BE APPEALED TO THE U. S. COURT OF APPEALS ON GROUNDS THAT THE TERM OR CONDITIONS IMPOSED EXCEED IN SEVERITY AND WITHOUT JUSTIFICATION THOSE PRESCRIBED BY APPLICABLE SENTENCING GUIDELINES. SEE SEC. 3725(A) OF S. 1722. IF THE COURT OF APPEALS DETERMINES THAT A SENTENCE (OR THAT PART OF A SENTENCE DEALING WITH SUPERVISED RELEASE) IS UNREASONABLY HIGH OR LOW, IT MAY REMAND THE CASE FOR RESENTENCING OR FOR FURTHER SENTENCING PROCEEDINGS, OR IT MAY ITSELF IMPOSE AN APPROPRIATE SENTENCE. OF COURSE, WHERE A SENTENCE IMPOSED BY THE DISTRICT COURT IS DEEMED REASONABLE NOTWITHSTANDING ITS DEPARTURE FROM THE SENTENCING GUIDELINES, THE COURT OF APPEALS MAY AFFIRM. SEE SEC. 3725(D) OF S. 1722.

B. S. 1722 - EARLY RELEASE ALTERNATIVES

ALTHOUGH SUPERVISED RELEASE IS NOT AN "EARLY RELEASE" MECHANISM, COURTS WOULD STILL HAVE DISCRETION UNDER OTHER PROVISIONS OF S. 1722 TO DIRECT A PRISONER'S RELEASE BEFORE EXPIRATION OF THE ORIGINALLY IMPOSED TERM OF IMPRISONMENT. SEVERAL STATUTORY MECHANISMS WOULD BE AVAILABLE TO THE COURTS, AND IN SOME CASES THE BUREAU OF PRISONS, FOR THIS PURPOSE: MODIFICATION OF A TERM OF IMPRISONMENT, TEMPORARY RELEASE AND PRE-RELEASE CUSTODY.

1. MODIFICATION OF AN IMPOSED TERM OF IMPRISONMENT

SECTION 2302(C) PROHIBITS MODIFICATION OF A TERM OF IMPRISONMENT ONCE IT HAS BEEN VALIDLY IMPOSED, EXCEPT THAT:

"(1) IN ANY CASE -

"(A) THE COURT, UPON MOTION OF THE DIRECTOR OF THE BUREAU OF PRISONS, MAY REDUCE THE TERM OF IMPRISONMENT, *** IF IT FINDS THAT EXTRAORDINARY AND COMPELLING REASONS WARRANT SUCH A REDUCTION AND THAT SUCH A REDUCTION IS CONSISTENT WITH APPLICABLE POLICY STATEMENTS ISSUED BY THE SENTENCING COMMISSION.

"(2) IN THE CASE OF A DEFENDANT WHO HAS BEEN SENTENCED TO A TERM OF IMPRISONMENT IN EXCESS OF FIVE YEARS, THE COURT, UPON MOTION OF THE DEFENDANT OR THE DIRECTOR OF THE BUREAU OF PRISONS MAY REDUCE THE TERM OF IMPRISONMENT, *** IF IT FINDS THAT EXTRAORDINARY AND COMPELLING REASONS OR THE GOAL OF AVOIDING UNWARRANTED SENTENCING DISPARITIES REQUIRE SUCH A REDUCTION AND THAT SUCH A REDUCTION IS CONSISTENT WITH APPLICABLE POLICY STATEMENTS ISSUED BY THE SENTENCING COMMISSION; BUT THE COURT MAY CONSIDER ONLY TWO SUCH MOTIONS WITH RESPECT TO A PARTICULAR DEFENDANT, ***."

THESE AUTHORIZATIONS REPRESENT A SUBSTANTIAL EXPANSION OF EXISTING LAW, SEE 18 U.S.C. SEC. 4205(G), WHICH PROVIDES FOR THE REDUCTION OF A MINIMUM SENTENCE TO TIME SERVED UPON THE MOTION OF THE BUREAU OF PRISONS. WHILE 18 U.S.C. SEC. 4205(G) OPERATES TO MAKE A PRISONER IMMEDIATELY ELIGIBLE FOR PAROLE UPON THE MOTION OF THE BUREAU OF PRISONS AND WITH THE APPROVAL OF THE COURT, SECTION 2302(C)(2) OF S. 1722 WOULD ALLOW THE COURTS TO ACCELERATE ACTUAL RELEASE WITH OR WITHOUT A MOTION BY THE BUREAU OF PRISONS.

UNDER SECTION 2302(C)(1), A COURT MAY, AT ANY TIME, UPON THE MOTION OF THE BUREAU OF PRISONS, REDUCE A TERM OF IMPRISONMENT ON THE BASIS OF "EXTRAORDINARY AND COMPELLING" REASONS. OF POTENTIALLY GREATER IMPACT, HOWEVER, ARE THE TERMS OF SECTION 2302(C)(2) WHICH WOULD PERMIT A COURT, ON THE DEFENDANT'S OWN MOTION (OR THAT OF THE BUREAU), TO REDUCE A SENTENCE IN EXCESS OF 5 YEARS IN ORDER TO AVOID "UNWARRANTED SENTENCING DISPARITIES" OR, AGAIN, ON THE BASIS OF EXTRAORDINARY AND COMPELLING REASONS. ALTHOUGH THE PROVISION WOULD LIMIT A DEFENDANT TO TWO SUCH MOTIONS, IT IS CONCEIVABLE THAT HEARINGS UPON SUCH MOTIONS COULD BECOME A SUBSTITUTE FOR WHAT IS TODAY KNOWN AS AN ADMINISTRATIVE PAROLE RELEASE HEARING. THIS EVENTUALLY WOULD DEPEND UPON WHAT CONSTITUTES AN "UNWARRANTED SENTENCING DISPARITY" AND THE REASONS DEEMED BY THE COURTS TO BE EXTRAORDINARY AND COMPELLING.

2. PRE-RELEASE CUSTODY

SECTION 3824 OF THE BILL IS ENTITLED "RELEASE OF A PRISONER," AND SUBSECTION (C) THEREUNDER PROVIDES FOR THE "PRE-RELEASE CUSTODY" OF INMATES:

"THE BUREAU OF PRISONS SHALL *** ASSURE THAT A PRISONER SERVING A TERM OF IMPRISONMENT SPENDS A REASONABLE PART, NOT TO EXCEED SIX MONTHS, OF THE LAST TEN PERCENT OF THE TERM *** UNDER CONDITIONS THAT *** AFFORD *** A REASONABLE OPPORTUNITY TO ADJUST TO AND PREPARE FOR *** REENTRY INTO THE COMMUNITY. THE UNITED STATES PROBATION SYSTEM SHALL *** OFFER ASSISTANCE TO A PRISONER DURING SUCH PRE-RELEASE CUSTODY."

THE TERM "PRE-RELEASE CUSTODY" IS NOT DEFINED, AND THE BILL DOES NOT SPECIFY WHETHER IT IS WITHIN THE BUREAU'S DISCRETION TO RELEASE PRISONERS FROM INCARCERATION IN AFFORDING THEM "A REASONABLE OPPORTUNITY TO ADJUST." THE 1977 SENATE VERSION OF THE CRIMINAL CODE REFORM LEGISLATION CONTAINED A SIMILAR AUTHORIZATION, ABOUT WHICH THE SENATE JUDICIARY COMMITTEE STATED:

"IT IS INTENDED THAT THE BUREAU HAVE SUBSTANTIAL DISCRETION IN DETERMINING WHAT OPPORTUNITY FOR REENTRY NEEDS TO BE MADE AVAILABLE TO EACH PARTICULAR PRISONER UNDER THE CIRCUMSTANCES OF HIS CASE. THE PROBATION SYSTEM IS REQUIRED, TO THE EXTENT PRACTICABLE, TO OFFER ASSISTANCE TO PRISONERS AT THIS PRE-RELEASE STAGE. THIS WILL PERMIT PROBATION OFFICERS TO ASSIST PRISONERS IN SEEKING EMPLOYMENT AND MEDICAL OR SOCIAL SERVICES AS NEEDED." SEE S. REP. NO. 95-605, 95TH CONG., 1ST SESS. 1082.

ALTHOUGH THIS EXPRESSION OF INTENT RECOGNIZES THE "SUBSTANTIAL DISCRETION" OF THE BUREAU OF PRISONS, IT DOES NOT ANSWER THE QUESTION WHETHER EARLY RELEASE FROM PRISON IS CONTEMPLATED AS ONE MEANS OF READYING AN OFFENDER FOR REENTRY INTO THE COMMUNITY. PROVISIONS COMPARABLE TO SECTION 3824 EXIST IN SOME STATE CODES; IT IS OUR UNDERSTANDING THEY DO NOT OPERATE IN SUCH A MANNER AS TO PERMIT THE EARLY RELEASE OF PRISONERS FROM INCARCERATION.

3. TEMPORARY RELEASE

PRISONERS COULD BE RELEASED FOR 30-DAY PERIODS UNDER THE TEMPORARY RELEASE PROVISIONS OF SECTION 3822, WHICH IS ANALOGOUS TO THE TEMPORARY RELEASE AUTHORIZATION OF EXISTING LAW, SEE 18 U.S.C. SEC. 4032(E). RELEASE UNDER SECTION 3822 WOULD BE AUTHORIZED ONLY FOR SPECIFIED PURPOSES AND ONLY WHERE:

"*** SUCH RELEASE APPEARS TO BE CONSISTENT WITH THE PURPOSES FOR WHICH THE SENTENCE WAS IMPOSED AND ANY PERTINENT POLICY STATEMENT ISSUED BY THE SENTENCING COMMISSION ***, (AND) SUCH RELEASE OTHERWISE APPEARS TO BE CONSISTENT WITH THE PUBLIC INTEREST ***."

THE PURPOSES FOR WHICH 30 DAYS OF TEMPORARY RELEASE IS AUTHORIZED ARE CARRIED FORWARD FROM PRESENT LAW FOR THE MOST PART AND RELATE PRIMARILY TO PERSONAL EMERGENCIES (E.G., VISITING DYING RELATIVES AND SEEKING OTHERWISE UNAVAILABLE MEDICAL TREATMENT). SEE SEC. 3822(A)(1) (4). SECTIONS 3822(A)(5) AND (A)(6) OF THE BILL, ALSO CARRIED OVER FROM PRESENT LAW, VEST SUBSTANTIAL DISCRETION IN THE BUREAU OF PRISONS TO AUTHORIZE RELEASE OF PRISONERS TO ESTABLISH OR REESTABLISH COMMUNITY TIES OR TO ENGAGE IN OTHER SIGNIFICANT ACTIVITY CONSISTENT WITH THE PUBLIC INTEREST.

THE WORK RELEASE PROVISIONS OF 18 U.S.C. SEC. 4082(C)(2) ARE ALSO RETAINED INTACT UNDER SECTIONS 3822(B) AND (C) OF THE BILL. THESE PROVISIONS AUTHORIZE TEMPORARY RELEASE OF AN OFFENDER FOR PAID EMPLOYMENT OR VOLUNTARY PARTICIPATION IN COMMUNITY TRAINING PROGRAMS. UNLIKE PRESENT LAW, HOWEVER, PARTICIPATION IN AN EDUCATIONAL PROGRAM HAS BEEN INCLUDED IN SECTION 3822 AS ONE EXPLICIT PURPOSE FOR WHICH TEMPORARY RELEASE MAY BE GRANTED. TO THE EXTENT SO-CALLED "WORK RELEASE" IS USED AS A MEANS TO AVOID CONFINEMENT IN A CORRECTIONAL FACILITY UNDER PRESENT LAW, SUCH USE COULD CONTINUE UNDER PROPOSED SECTION 3822.

III. S. 1722 - EFFECTIVE DATE

THE PROPOSED REVISIONS WOULD BECOME EFFECTIVE 30 MONTHS FOLLOWING ENACTMENT OF S. 1722 BY CONGRESS, EXCEPT THAT THE SENTENCING COMMISSION WOULD BE ESTABLISHED IMMEDIATELY ON THE DATE OF ENACTMENT. INDIVIDUALS CONVICTED OF OFFENSES BEFORE THE ACT BECOMES EFFECTIVE WOULD REMAIN SUBJECT TO CURRENT PAROLE LAW FOR 5 YEARS FOLLOWING THE EFFECTIVE DATE, AT WHICH TIME THE PAROLE COMMISSION WOULD BE ABOLISHED. SEE SEC. 134(B)(1) OF S. 1722.

INDIVIDUALS REMAINING WITHIN THE JURISDICTION OF THE COMMISSION BEFORE THE 5 YEAR PERIOD EXPIRED ARE TO BE SCHEDULED BY THE COMMISSION FOR RELEASE ON THE EARLIEST ALLOWABLE DATE UNDER APPLICABLE PAROLE GUIDELINES. SEE SEC. 134(B)(3) OF S. 1722. PRISONERS RELEASED IN THIS MANNER AND THOSE ALREADY ON PAROLE WILL REMAIN SUBJECT TO CURRENT LAW REGARDING PAROLE SUPERVISION FOR THE DURATION OF THEIR SENTENCES. SEE SEC. 134(B)(4) OF S. 1722. WHILE S. 1722 DOES NOT SPECIFICALLY ADDRESS THE POINT, THESE PAROLEES PRESUMABLY WILL BE BROUGHT UNDER THE SUPERVISION OF THE COURTS TO THE EXTENT THAT THEIR SENTENCES EXTEND BEYOND THE DATE OF THE SCHEDULED ABOLITION OF THE COMMISSION. SPECIAL STUDIES AND ANALYSIS

BY: JOHN M. MELODY

FN1 AS AUTHORIZED BY 18 U.S.C. SEC. 4206(A), THE PAROLE COMMISSION HAS PROMULGATED PAROLE RELEASE GUIDELINES THAT INDICATE THE CUSTOMARY RANGE OF TIME TO BE SERVED BEFORE RELEASE FOR VARIOUS COMBINATIONS OF OFFENSE SEVERITY AND OFFENDER CHARACTERISTICS. SEE 28 C.F.R. SEC. 2.20. THE COMMISSION ALSO IS AUTHORIZED UNDER SECTION 4206(C) OF TITLE 18 TO GRANT OR DENY RELEASE NOTWITHSTANDING THE GUIDELINES IF IT DETERMINES THAT THERE IS GOOD CAUSE FOR DOING SO, AND THE PRISONER IS FURNISHED WRITTEN NOTICE SPECIFYING THE REASONS FOR THE DETERMINATION.

FN2 THE SENTENCING COMMISSION WOULD CONSIST OF SEVEN MEMBERS. AFTER CONSULTATION WITH THE JUDICIAL CONFERENCE OF THE UNITED STATES AND WITH THE ADVICE AND CONSENT OF THE SENATE, THREE MEMBERS WOULD BE APPOINTED BY THE PRESIDENT. THE REMAINING FOUR WOULD BE SELECTED BY THE PRESIDENT FROM A LIST COMPILED BY THE JUDICIAL CONFERENCE.