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June 5, 2013

"Indeterminate Sentencing Returns: The Invention of Supervised Release"

The title of this post is the title of this new article by Fiona Doherty just published in the June 2013 issue of the New York University Law Review. Here is the abstract:

The determinacy revolution in federal sentencing, which culminated in the passage of the Sentencing Reform Act of 1984, has since been upended by a little-noticed phenomenon: the evolution of federal supervised release.  A “determinate” sentencing regime requires that prison terms be of fixed and absolute duration at the time of sentencing.  Because of the manner in which supervised release now operates, however, contemporary federal prison terms are neither fixed nor absolute. Instead, the court has discretion to adjust the length of a prison term after sentencing based on its evaluation of the post-judgment progress of the offender.  This power to amend the duration of the penalty is the classic marker of the “indeterminate” sentence.

In this Article, I show how federal supervised release has dismantled the ambitions of the determinacy movement and made federal prison terms structurally indeterminate in length.  I conclude that the widespread use of supervised release has created a muddled and unprincipled form of indeterminate sentencing: one that flouts the insights and vision of the nineteenth-century indeterminacy movement as well as the twentieth-century determinacy movement.  Having dislocated once-celebrated theories of sentencing, federal supervised release now controls the lives of more than 100,000 people without offering any alternative theoretical basis for doing so.  This Article draws on the lessons of a 200 year history to expose the current nature of supervised release and to envision a more coherent role for its future.

I have long viewed supervised release as an important, but badly under-examined and under-theorized, aspect of the modern federal sentencing system.  Thus I am pleased to see a prominent article taking on SR in a prominent way.

June 5, 2013 at 03:56 PM | Permalink


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State sentenceing generally is in 2 parts... When given a sentence of say 10 trs, youn get 5 yrs of Parole or supervised release.

In Federal this 10 yr sentence would be 20-25 yrs and 5-10 yrs supervised release...

Not difficult to figure out why Federal prisons are growing at about the same rate as our National Debt.

There is no thru put...Once placed, you are a can of beans of the shelf for eternity...For practical purpeses.

Posted by: MidWest Guy | Jun 5, 2013 4:21:03 PM

Not in my state nor in most others these days. most have went to 80-95% mandatory mim's if you got 10 years. you will serve 95% of that in florida!

as for the federal prisoners. maybe they need to get together and steal some guns and then tell the federal judges to get fucked! come and get us!

Posted by: rodsmith | Jun 6, 2013 12:39:46 AM

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