28 C.F.R. § 2.40

Conditions of release

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(a)(1) General conditions of release and notice by certificate of release. All persons on supervision must follow the conditions of release described in § 2.204(a)(3) through (6). These conditions are necessary to satisfy the purposes of release conditions stated in 18 U.S.C. 4209. Your certificate of release informs you of these conditions and special conditions that we have imposed for your supervision.

(2) Refusing to sign the certificate of release. (i) If you have been granted a parole date and you refuse to sign the certificate of release (or any other document necessary to fulfill a condition of release), we will consider your refusal as a withdrawal of your application for parole as of the date of your refusal. You will not be released on parole and you will have to reapply for parole consideration.

(ii) If you are scheduled for release to supervision through good-time deduction and you refuse to sign the certificate of release, you will be released but you still must follow the conditions listed in the certificate.

(b) Special conditions of release. We may impose a condition of release other than a condition described in § 2.204(a)(3) through (6) if we determine that imposing the condition is reasonably related to the nature and circumstances of your offense or your history and characteristics, and at least one of the following purposes of criminal sentencing: The need to deter you from criminal conduct; protection of the public from further crimes; or the need to provide you with training or correctional treatment or medical care. In choosing a condition we will also consider whether the condition involves no greater deprivation of liberty than is reasonably necessary for the purposes of deterrence of criminal conduct, protection of the public from crime and offender rehabilitation. We list some examples of special conditions of release at § 2.204(b)(2).

(c) Participation in a drug-treatment program, If we require your participation in a drug-treatment program, you must submit to a drug test within 15 days of your release and to at least two other drug tests, as determined by your supervision officer. If we decide not to impose the special condition on drug-treatment, because available information indicates you are a low risk for substance abuse, this decision constitutes good cause for suspending the drug testing requirements of 18 U.S.C. 4209(a). You must pass all pre-release drug tests administered by the Bureau of Prisons before you are paroled. If you fail a drug test your parole date may be rescinded.

(d) Changing conditions of release. After your release, we may change or add to the conditions of release if we decide that such action is consistent with the criteria described in paragraph (b) of this section. In making these changes we will use the procedures described in § 2.204(c) and (d). You may appeal our action as provided in §§ 2.26 and 2.220.

(e) Application of release conditions to an absconder. If you abscond from supervision, you will stop the running of your sentence as of the date of your absconding and you will prevent the expiration of your sentence. You will still be bound by the conditions of release while you are an absconder, even after the original expiration date of your sentence. We may revoke your release for a violation of a release condition that you commit before the revised expiration date of your sentence (the original expiration date plus the time you were an absconder).

(f) Revocation for possession of a controlled substance (18 U.S.C. 4214(f)). If we find after a revocation hearing that you have illegally possessed a controlled substance, we must revoke your release. If you fail a drug test, we must consider whether the availability of appropriate substance abuse programs, or your current or past participation in such programs, justifies an exception from the requirement of mandatory revocation. We will not revoke your release on the basis of a single, unconfirmed positive drug test if you challenge the test result and there is no other violation found by us to support revocation.

(g) Supervision officer guidance. See § 2.204(g).

(h) Definitions. See § 2.204(h).

[79 FR 51257, Aug. 28, 2014]

Notes of Decisions

Cited in 52 cases, 1967–2017 · leading case: Turner v. Safley, 482 U.S. 78 (1987).

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Turner v. Safley, 482 U.S. 78 (1987). · cites it 2× “, 28 CFR § 2.40 (a)(10) (1986) (federal parole conditioned on nonassociation with known criminals, unless permission is granted by the parole officer).”

United States v. Donald Reyes, Robert Jubic, 283 F.3d 446 (2d Cir. 2002). · cites it 2× “II, §§ 218(a)(5), 235(a)(1), 98 Stat 1837, 2027, 2031 4 ; 28 C.F.R. § 2.40 (a)(6) 5 —when the possibility of violation is brought to the officer’s attention, Thomas, 729 F.”

United States v. Augustin Gonzalez, 71 F.3d 819 (11th Cir. 1996). · cites it 3× “Appellant was charged with failure to report to his probation officer, in violation of 28 C.F.R. § 2.40 (a)(5) (1991), failure to report a change in residency, in violation of 28 C.”

In Re Tucker, 486 P.2d 657 (Cal. 1971). · cites it 6× “) [58] Although we recognize that representatives of the Adult Authority should retain a wide discretion to conduct the hearing so as to forbid repetitive, irrelevant, and unduly prolonged testimony, we see no justification for an absolute prohibition of oral testimony of a…”

Thomas F. Rauschenberg v. William Williamson, 785 F.2d 985 (11th Cir. 1986). · cites it 3× “§§ 4209 (d)(2) and 4215(a) and 28 C.F.R. § 2.40 (e); the right to appeal, 18 U.”

Nasir v. Morgan, 350 F.3d 366 (3rd Cir. 2003). “3 (c)(9) (stating that defendants on supervised release shall not associate with convicted felons without permission of probation officer); 28 CFR § 2.40 (a)(10) (conditioning federal parole on non-association with known criminals, unless permission is granted by the parole…”

Carmel v. Thomas, 510 F. Supp. 784 (S.D.N.Y. 1981). · cites it 3× “see 28 C.F.R. § 2.40 (a)(l)-(ll), 11 which *790 are printed on the release certificate itself.”

Rastelli v. Warden, Metro. Corr. Ctr., 622 F. Supp. 1387 (S.D.N.Y. 1985). · cites it 3× “This time, the Parole Commission broadened the charge by alleging that Rastelli had violated his parole by associating with a person engaged in criminal activity, in violation of 28 C.F.R. § 2.40 (a)(6). In all other respects, the factual foundation of the charge was identical…”

Rastelli v. Warden, Metro. Corr. Ctr., 610 F. Supp. 961 (S.D.N.Y. 1985). · cites it 4× “Nevertheless, under Commission regulations which Rastelli does not challenge here, a mandatory releasee is bound by the conditions set forth in 28 C.F.R. § 2.40 (a)(l)-(12) (1984) “regardless of any refusal by the releasee to sign the parole certificate.”

Rosemary Weissich Jill Elaine Weissich v. United States of Am., 4 F.3d 810 (9th Cir. 1993). “Release conditions for a probationer are set forth in 28 C.F.R. § 2.40 (1992). This section specifically provides that the probationer shall report to his probation officer as the probation officer directs.”

Lawrence Wilson v. United States, 959 F.2d 12 (2d Cir. 1992). “See 28 C.F.R. § 2.40 (a)(12); Parole Commission Procedures Manual at 113, para.”

Carmine Galante v. The Warden, Metro. Corr. Ctr. & the United States Parole Comm'n, 573 F.2d 707 (2d Cir. 1977). “28 C.F.R. § 2.40 (a)(10). Galante’s principal contentions are (1) that he was denied due process by the Commission because it proceeded against him by warrant rather than by summons, and (2) that it is an abuse of discretion to deny him bail when he has not been charged with or…”

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— 28 C.F.R. § 2.40(b) — 1 case

Walrath v. United States, 830 F. Supp. 444 (N.D. Ill. 1993).

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