Probation and Supervised Release: Working as Intended?

The USSC Releases Its First Report on Federal Supervised Release Violations

When on probation or on supervised release, the intention is to “keep your nose clean,” and stay away from trouble.  Any scrape with the law while on probation or supervised release could result in your re-incarceration.

It is much better to be on the outside than inside a federal prison. Yet, probation and release violation hearings are very prevalent throughout the country.  So prevalent, in fact, that we wonder if the remedies of probation and supervised release working as intended?  Or, are those accused of violating their release requirements being held to an impossible standard? Thereby making probation and supervised release simply a gateway to eventual incarceration.

Fortunately, the United States Sentencing Commission (USSC) just came out with a new report. The first of its kind analyzing the implications surrounding federal violations of probation and supervised release.  The report, Federal Probation and Supervised Release Violations, has some compelling findings that touch upon these questions. .

We discuss probation, supervised release, and the process related to violations of both forms of criminal supervision.  Most importantly, we will delve into the key findings of the USSC’s report.  If you have additional questions about probation or supervised release, contact the Law Office of Jeremy Gordon.

The Law Behind Probation and Supervised Release

Beginning with a change in the U.S. sentencing laws in 1984, federal courts no longer imposed probation as a way to stay, or put off, a criminal sentence.  Rather, probation became a sentence in itself, typically as an alternative to incarceration.  It is generally imposed for less serious crimes.  The idea behind probation is that a person can learn from his or her mistake and can be rehabilitated without the need for prison.

Of course, courts have the discretion to impose many requirements and restrictions on people who are sentenced to a probationary term.  Such requirements may include:

• Submitting to periodic drug testing;
• Submitting to DNA testing;
• Reporting to a probation officer with a certain frequency;
• Attend rehabilitation programs;
• Paying an amount of restitution; and
• Paying special assessments and fines.

Supervised release is related to probation, though arises in a different context.  Instead of being sentenced to a term of probation at the front end, supervised release is placed at the back end of a term of incarceration.  The purpose of supervised release is to release someone from prison, yet maintain some supervision, in order to facilitate an offender’s reentry into society.

Though coming from a different context, the conditions for supervised release are very similar to those for terms of probation, like those listed above.

Process and Consequences for Violations of Probation and Supervised Release

Federal courts retain jurisdiction over people who are on probation or supervised release.  That means that if there is an allegation that a person violated the conditions of their probation or release, the court must go through the following process:

1. Hold a preliminary hearing to determine whether a violation was actually committed;
2. If the court determines there is probable cause that a violation was committed, then a full hearing is scheduled.
3. If the court finds a violation after the full hearing, then the court recommends the penalty for the violation.

Common violations include a re-arrest for drug possession, testing positive in a drug test, failing to keep contact with a probation officer, and possessing a firearm in violation of probation conditions or law.

The penalties available to the court for a probation or supervised release violation include (i) continuing supervision by extending the term of probation or supervised release; (ii) modifying release conditions; or (iii) revoking the term of supervision and ordering a prison sentence.  Depending upon the violation, the prison term could be substantial.

Key Findings

With that background in mind, we can now turn to the key findings of the recent USSC report.  In creating the report, the USSC used data for the five years from 2013 to 2017.  Those key findings are as follows:

1. Numbers Have Remained Stable, But Supervision Concentrated in Few Districts

The USSC found that over the course of five years, the number of those on probation and supervised release, as well as the number of violators, has remained relatively stable.  Interestingly, however, over half of people under supervision show up in only 21 of the 94 federal judicial districts.  That seems to indicate that many federal courts are not taking advantage of non-incarceration options for federal offenders.

2. Violators Tend to Be More Serious Criminals

The report concluded that those who have worse criminal records with more serious crimes are more apt to violate their conditions of supervision.  The rates of violators originally sentenced for violent and firearms offenses were about twice as high as violators who were sentenced to supervision in the first place.

3. Crack Cocaine Offenders Violated Supervision at a Greater Rate

Only 10% of those placed on probation or supervised release committed an offense involving crack cocaine. Yet, crack cocaine offenders accounted for almost 33% of supervision violators.

4. Violations Tended to Occur Within the First Two Years

The statistics showed those who violated probation or supervised release did sowithin two years of the time that their supervision began.  Indicating that those who will ultimately violate their release conditions will normally do so relatively soon after being put on supervision.

Conclusion

The takeaway from the report is the high number of supervision violations has not changed over the last half decade. The more serious the initial criminal offense, the higher chance that offender will violate any release conditions.

The key consideration is courts and probation officials that hold offenders to an impossible standard.  Offenders need smart, effective representation to address courts that send people back to prison unwarranted.  That is why we invite you to contact the Law Office of Jeremy Gordon.