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February 23, 2014

"Shadow Sentencing: The Imposition of Supervised Release"

The title of this post is the headline of this notable new paper by Christine S. Scott-Hayward concerning a too-rarely examined component of the federal criminal justice system. Now available via SSRN, here is the abstract:

More than 95 percent of people sentenced to a term of imprisonment in the federal system are also sentenced to a term of supervised release.  Since it was first established in the late 1980s, nearly one million people have been sentenced to federal supervised release. The human and fiscal costs of this widespread imposition are significant.  Supervised release substantially restricts an individual’s liberty and people on supervised release receive diminished legal and constitutional protections.  The fiscal costs of supervised release are also high, particularly when almost one third of people on supervised release will have their supervision revoked and will return to prison.

Despite the importance of supervised release, little is known about how and why sentencing judges impose supervised release and what purpose it is supposed to serve in the federal criminal justice system.  In most cases, supervised release is not mandatory and yet judges consistently fail to exercise their discretion in this area and impose supervised release in virtually all cases.

Based on an empirical study of sentencing decisions in the Eastern District of New York, this article uncovers previously unidentified features of supervised release.  It finds that judges widely impose supervised release without any apparent consideration of the purpose served by the sentence.  This article argues that supervised release is over-used and proposes a new framework for its imposition to ensure that courts only impose supervised release on people who need it.

February 23, 2014 at 12:53 PM | Permalink


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I'm very glad to see this article. I've been saying for some time that there's more to the anti-incarceration movement than meets the eye. A major part of its rationale is an ANTI-PUNISHMENT theory, in which the criminal is seen as a victim of a callous society, and thus deserving, not of punishment, but of more tax-funded social services.

This article is Exhibit A. The anti-incarceration movement fronts that imprisonment should and will be replaced by less expensive and more humane community supervision. But we now see that the front is just that -- a front.

It's the classic bait-and-switch. The bait is that we'll save money by cutting back on incarceration, but be just as safe anyway because community supervision will be well-monitored and stringent. We now see that the real goal is not well-monitored supervision, but none.

And why should there be? If the criminal is really the victim, and the rest of us are his uncaring victimizers, we have no right to impose ANY punishment, and should be willing to take the medicine (more crime) our callousness has earned.

The only problem with this article is that it's premature. The author should have waited until more of the anti-incarceration agenda had been achieved before pulling back the curtain on the fact that the real objective from the getgo was no punishment at all.

Posted by: Bill Otis | Feb 23, 2014 1:50:16 PM

"Anti-incarceration movement" is it a movement or is it a conspiracy? Who are its policy developers, who are the leaders, who is on the fringe? We know Bill fancies himself as the yeoman for the "Pro-incarceration movement."
Or maybe the genesis of the article is simply that supervised release is a statutory mandate that does not distinguish between those who need no supervision, those who need a little, or those who need a lot.
Who recommends the length of many supervised release terms? The U$ Probation Presentence Investigation writer. Who directly benefits from longer terms of supervised release? The employees of U$ Probation. Supervised release is the full employment act for the employees of US Probation. Does our safety mean that we need to continue to fully fund U$ Probation Offices at the present levels if less supervised release is efficacious? See, Early Termination of Supervised Release: No Compromise to Community Safety, Federal Probation Vol. 77, No. 2 available at: http://www.uscourts.gov/viewer.aspx?doc=/uscourts/FederalCourts/PPS/Fedprob/2013-09/no-compromise.html
How could such a document be paid for and posted on a government website? Yeah, Bill the "anti-incarceration movement" has infiltrated the US Probation obviously with the help of the Administrative Office of the US Courts--it could be running rampant throughout the government--we someone with the wherewithal of Joe McCarthy to root this out and expose the "anti-incarcerators." Can we please have a House Committee on Anti-Incarceration Activities?

Posted by: ? | Feb 23, 2014 5:09:17 PM

Sometimes there is a very long digestion period before the mouth fart.

Patience grasshopper.

Posted by: George | Feb 23, 2014 5:52:46 PM

So after serving a lengthy sentence, one messes yo a bit. It's bound to happen, especially if under 40 yrs old. The ya get to do another lengthy term, based on the class of the crime and what history category you were when sentenced. Seems like over kill.

Term of supervised release is pulled from the guidelines by the probation officer.
The probation officer, is also the person that writes the PSR. Hmm.

The PSR is basically going to dictate what security level facility you go to and of coarse your sentence. Most sentences are just rubber stamped by the judge.

Enough said.

Posted by: Midwest Guy | Feb 23, 2014 8:56:33 PM

I forgot to add that Bill will respond with something like:
The people pushing this line are almost always the same ones pushing the new lingo that we should have "evidence-based" this and "evidence-based" that. Conspicuously absent from their advocacy, however, is any of the much vaunted "evidence" that [extended terms of supervised release] isn't working, or that [reduction in a term of supervised release] is. Maybe it would be a good idea to take a look.
Yeah, Bill you are right, don't just bitch look, look at the data contained outlined in the paper: Early Termination of Supervised Release: No Compromise to Community Safety, Federal Probation Vol. 77, No. 2 available at: http://www.uscourts.gov/viewer.aspx?doc=/uscourts/FederalCourts/PPS/Fedprob/2013-09/no-compromise.html

Bill will respond "its not a longitudinal study". My response is Bill, instead of just bitching, you're the academic-so design and implement an objective longitudinal study showing that the US Courts study is wrong.

Posted by: ? | Feb 23, 2014 9:08:17 PM

? --

Your notion that there is no anti-incarceration movement is well beyond preposterous. Do you read ANY of what Doug has to say on this blog?

Posted by: Bill Otis | Feb 24, 2014 12:10:08 AM

As a US probation office employee, and I wonder how much first-hand experience the author has had with the supervised release program. Not every person under supervised release receives the same level of supervision. Offenders are initially characterized as low- medium- and high-risk, and supervised accordingly. Low-risk offenders have very little interaction with their probation officers, and if they stay out of trouble, they can ask the court to terminate their supervision early. Our office gives offenders assistance with employment, housing, and health care - help they might not otherwise get from anybody. Our job performance is measured by how successfully the offenders reenter society, and not on how many of them we can put back in jail. The system isn't perfect, but it's not the monster the author makes it out to be.

Posted by: APC | Feb 24, 2014 9:17:04 AM

"Do you read ANY of what Doug has to say on this blog?"

That you would characterize Doug's writings in this way speaks volumes about your viewpoint, not about Doug's.

Posted by: Jay | Feb 24, 2014 9:26:10 AM

This is an absolutely idiotic premise. Remember parole? Same idea. People who are released from prison and into the community need to be under some period of supervision, both for their own good and the good of the community, upon release. The fact that one-third don't make it is more of an indicator of a significant recidivism rate, not an indicator that supervision isn't necessary.

Posted by: observer | Feb 24, 2014 11:04:18 AM

Jay --

So Doug has NOT been a leader in speaking up for less incarceration???

As I asked, have you read ANYTHING he has put up on this blog?

Seeing that this is his viewpoint requires nothing more than the ability to read.

P.S. The reason you have a problem with my "viewpoint" is that I oppose criminals and you assist them. There's not a whole lot more to it than that.

P.P.S. Did you see APC's knowledgeable comment?

Posted by: Bill Otis | Feb 24, 2014 2:10:49 PM

Mr. Bill, maybe you forgot you built another straw man: ANTI-PUNISHMENT, then "anti-incarceration" and then "less incarceration" which goes to the U.S. having the highest incarceration rate of the industrial world - in the Land of the Free.

Even you have said you think some sentences excessive so you sometimes agree with Doug and the bleeding hearts. And Doug is no bleeding heart. Compare his DUI posts for example.

So how did you get ANTI-PUNISHMENT out of that? Was it an allusion?

Posted by: George | Feb 24, 2014 6:37:50 PM

"Our office gives offenders assistance with employment, housing, and health care - help they might not otherwise get from anybody."

well APC you may be an exception to the rule but in my personal experiences and those of others I know, this doesn't represent the normal course of action that I've seen first hand at the federal level

Posted by: non-believer | Feb 24, 2014 7:01:06 PM

Actually APC is correct and not the exception to the rule. The federal system is measured on successful reentry and not how many people on TSR are violated. The goal is reducing victimization.

Posted by: Philip Miller | Feb 24, 2014 8:49:05 PM


You only saw first hand your own experience. You add some hearsay from your coterie of fellow offenders.This is unpersuasive.
Educate yourself as to what a PCRA (Post Conviction Risk Assessment) is.
Supervised Release is "required" under 5D1.1(a)(2) for all sentences of more than 12 months. I put "required" in quotes because, under Booker, this provision is really advisory. It carries a lot of weight at sentencing, so you can mostly thank or blame Congress and the Sentencing Commission for the prevalence of supervised release terms.

The paper under discussion here is propaganda in an academic's clothing and the agenda is plainly stated in the final paragraph. Supervised release terms and conditions are subject to the same kind of review as other components of a sentence, pursuant to the same considerations under 18 USC 3553(a). If there is a failing here, it is on the part of defense attorneys for not making cogent arguments as to why a term of supervised release is greater than necessary to achieve any purpose of sentencing. They don't because they can't. Aside from a very few unusual cases, suggesting that there is no valid purpose to supervise a person being released from a term of custody of over a year is a dumb fucking argument. There might be some valid arguments for a shorter term of supervised release in some cases, but that argument is too nuanced for most defense attorneys to flesh out.

Posted by: Wayne-O | Feb 24, 2014 11:03:36 PM


Early termination of a thus far successful term of supervised release is a totally different subject than whether to impose it in the first place. The research you cite (which I find to be valid and worthy of more consideration by probation officers and courts) isn't addressing the same circumstances as the paper which is the subject of this post. Please post the recidivism rate for offenders released from prison with no supervision to follow.

Posted by: Wayne-O | Feb 24, 2014 11:09:06 PM

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