Norton Bill Seeks Permanent Authorization of US Parole Board to Fit New DC Mission (2/23/2010)
Norton Bill Seeks Permanent Authorization of U.S. Parole Board to Fit New D.C. Mission
February 23, 2010
WASHINGTON, DC - Congresswoman Eleanor Holmes Norton (D-DC) today will introduce a bill to permanently authorize the United States Parole Commission (USPC) well in advance of the expiration of its temporary authorization in November 2011. The Commission currently manages thousands of returning D.C. Code ex-offenders in addition to 2,500 federal offenders. The Commission has been temporarily reauthorized five times since federal parole was abolished, but the National Capital Revitalization and Self-Government Improvement Act transfer of prisoners to the federal Bureau of Prisons and the U.S. Parole Board now give the Board a permanent mandate. Norton said that the threatened expiration of the Commission jeopardized due process for offenders and produced court oversight by the Third Circuit Court of Appeals. In introducing the bill, Norton said "this bill is intended to prevent a replay of a narrowly averted catastrophe in 2008, when Congress almost failed to temporarily reauthorize the USPC before its authorization expired. Since 1992, Congress has temporarily reauthorized the USPC five times, but now that the USPC has continuing responsibilities for federal and District of Columbia offenders, it is important to stabilize this important public safety agency with the same kind of authorization as other federal law enforcement agencies."
The Congresswoman's full testimony follows.
Statement of Congresswoman Eleanor Holmes Norton
On the Introduction of the United States Parole Commission Authorization Act of 2010
February 23, 2010
Ms. Norton. Madam Speaker,
Today, I introduce the United States Parole Commission Authorization Act of 2010 to permanently authorize the United States Parole Commission (USPC). This bill is intended to prevent a replay of a narrowly averted catastrophe in 2008, when Congress nearly failed to temporarily reauthorize the USPC before its authorization expired. Since 1992, Congress has temporarily reauthorized the USPC five times. Now that the USPC has continuing responsibilities for federal and District of Columbia Code Offenders, it is important to stabilize this important public safety agency with the same kind of authorization as other federal law enforcement agencies.
The first three-year reauthorization of the USPC began when the Sentencing Reform Act of 1984 (SRA) abolished federal parole and replaced it with determinate sentencing, requiring a sentencing judge to impose a fixed term of supervised release that is served by offenders after completing their prison terms. In order to accommodate federal offenders convicted of crimes while parole was still in effect, the SRA called for the USPC to remain in existence until November 1, 1992, and the USPC has been temporarily reauthorized five times since then. Today, the agency grants, denies or revokes parole from federal offenders who are not otherwise ineligible for parole, and makes determinations regarding supervised release for others.
The USPC, however, has had important new responsibilities for more than ten years. To help alleviate a serious financial crisis in the District of Columbia, and at the city's request, the National Capital Revitalization and Self-Government Improvement Act (Revitalization Act) transferred the responsibility for, and the costs of, certain state functions from the District to the federal government, including the transfer of responsibility for D.C. Code Offenders from the D.C. Board of Parole to the USPC. The Revitalization Act also eliminated parole in the District, and instituted the District's version of determinate sentencing, similar to the federal system. The USPC's duties with respect to D.C. Code Offenders vary according to the date on which the crime at issue was committed. For D.C. Code Offenders who committed crimes before August 5, 2000, and are not otherwise eligible for parole, the USPC is currently responsible for granting, denying or revoking parole, and making determinations regarding supervised release. For D.C. Code Offenders who committed crimes after August 4, 2000, and who are sentenced to a determinate sentence of imprisonment followed by a term of supervised release, the USPC is responsible for making determinations regarding supervised release.
The USPC also has other ongoing duties. These responsibilities include granting or denying parole for United States citizens convicted of crimes in a foreign country who elect to return to the United States to complete their sentences, parole-related functions for certain military and state offenders, and decision-making authority over state offenders who are on state probation or parole and are transferred to federal authorities under the witness security program.
Today, however, most of the USPC's day-to-day work involves District of Columbia Code Offenders. As of September 2009, the USPC had or will have responsibility for approximately 2,500 federal offenders and approximately 9,500 D.C. Code Offenders. Eventually, the USPC will have jurisdiction over almost no federal offenders, but will continue to have jurisdiction over D.C. Code Offenders.
There are two primary reasons for permanently extending the life of the USPC. First, as then-Attorney General Ashcroft reported to Congress in 2002, "there is no District of Columbia or federal agency, other than the USPC, with the staff, procedures, and infrastructure in place to effectively assume the functions of the USPC." And, as Edward F. Reilly Jr., then-Commissioner of the USPC similarly pointed out in his 2008 statement before the Subcommittee on Crime, Terrorism and Homeland Security, there is no other entity with the statutory authority to do so.
Second, and most important, the failure to extend the life of the USPC raises serious due process and ex post facto issues for offenders. In addition to its other provisions, the SRA requires the USPC, before its expiration, to schedule a release date for all parole-eligible offenders. Thus, without an extension, the USPC would be required under federal law to set release dates for all parole-eligible federal prisoners, within three to six months before its expiration, or face due process challenges for a failure to set such release dates. This requirement could mean an arbitrary adjustment of prisoners' release dates, as well as the stripping of inmates of their right to contest their release dates, to periodic review and modification of those release dates, and to an earlier release date, after the USPC went out of existence.
This issue has already arisen. In a case before the federal Third Circuit Court of Appeals in 2008, the petitioner argued that with the expiration of the USPC at the end that year, and the "winding up" provision in the SRA requiring the USPC to set a release date for offenders within three to six months before the USPC's expiration, the USPC's decision to set a reconsideration hearing date instead of a release date violated the SRA. In response, the U.S. Attorney did not refute this claim but argued that Congress would likely extend the USPC, rendering moot the petitioner's claim that his right to the setting of a firm parole release date before the USPC's expiration had been violated. The Third Circuit then directed the U.S. Attorney to provide information regarding the pending expiration of the USPC and the likelihood of its extension. Responding to this directive, the U.S. Attorney argued that the costs of failure to reauthorize the USPC were so high, and the constitutional issues so serious, that reauthorization was essentially guaranteed. "Congress itself has expressed concern over potential ex post facto problems that a failure to authorize might create," the U.S. Attorney wrote, relying on language from the legislative history of the Parole Phase-out Act of 1996. "'Constitutional requirements, specifically the ex post facto clause, necessitate the extension of the commission or the establishment of a similar entity authorized by statute to perform its functions.'"
The Third Circuit crisis in 2008 led Congress to reauthorize the USPC just in time, but only for another three years. The ordeal dealt a serious blow to the USPC. This year, we seek to obtain reauthorization not only well ahead of time, but to avoid a ritualistic reauthorization of a permanent law enforcement agency every three years. It will be particularly important to bear in mind that the close call the USPC had in the Third Circuit, could be repeated in the other eleven circuits. It is clear that a timely, simple reauthorization would have been beneficial to all concerned -- the USPC, Congress, and the courts. I ask Congress to permanently extend the USPC to ensure the smooth and constitutional operation of the federal and District of Columbia criminal justice systems.