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June 2, 2018

Lamenting how federal supervised release operates and suggesting reforms

Jacob Schuman, a federal public defender, has this extended New Republic piece headlined "America’s Shadow Criminal Justice System" detailing problems with how federal supervised release operates. I recommend the piece in full, and here are excerpts:

In the federal criminal justice system, prison is just the beginning of punishment. After prison comes “supervised release,” a set of obligations and restrictions governing an ex-con’s day-to-day schedule, employment, residence, and relationships.

In the best-case scenario, two-thirds of people successfully complete their term of supervised release....  As a federal public defender, I see the remaining one-third of cases—the worst-case scenarios where people violate their supervised release and get sent back to prison for up to five years. In a recent case, I represented a first-time offender who flawlessly completed two years of a five-year term of supervision.  But after he got into a relationship with the wrong person and started using opioids, he was reported by his probation officer, arrested, and held in prison for seven months.  After a failed attempt at rehab, his probation officer reported him again, and the judge sentenced him to 18 months’ imprisonment for violating his release by failing to achieve recovery. He’s now serving that sentence in a maximum-security prison, where no addiction treatment is available.

Improving this system depends on Congress, which has now taken on the worthy task of prison reform. Recently, the House of Representatives passed the First Step Act, a bill that makes it easier for inmates to earn early release and expands their access to job training and education. The proposal won an impressively bipartisan 360-59 vote and the support of the White House.  While the FSA makes good changes, reform will be incomplete unless it also addresses supervised release, a web of restrictions that ensnares many former prisoners, making successful reentry to society more difficult, not less....

The data show that this system is incredibly strict, and that its reach is vast.  Between 2005 and 2009, federal judges imposed supervised release in approximately 300,000 cases, with an average term lasting over 40 months.  By 2010, more than 10,000 federal inmates were locked up for violating their supervised release. The supervision costs the federal government $400 million annually (not including the cost of incarcerating people for violations)....

Created by the Sentencing Reform Act of 1984, supervised release was supposed to reduce the monitoring of former prisoners.  Under the old “parole” system, inmates could earn early release from prison, but then had to serve the rest of their sentences in the community, subject to a parole officer’s supervision.  The SRA abolished parole and instead gave judges the option of imposing supervised release only on those defendants who needed extra support to “ease the[ir] … transition into the community.” The idea was that people would spend more of their time in prison, but would also receive less supervision after their release. Yet as the political winds shifted, Congress gradually made supervised release more expansive and more punitive.  Federal judges now impose supervised release in 99 percent of qualifying cases, and the number of people under supervision has increased five-fold.

Over the past 30 years, supervised release has transformed into a shadow criminal justice system that both reflects and perpetuates racial inequality.  In her book, The New Jim Crow, Professor Michelle Alexander examined how restrictions on former inmates, the majority of whom are Black or Hispanic, put them “at increased risk of arrest because their lives are governed by additional rules that do not apply to everyone else.”  This inequality continues into the courthouse, as unlike most defendants, people accused of violating the terms of their supervised release do not enjoy the rights to a speedy trial, a jury, confrontation of adverse witnesses, or proof beyond a reasonable doubt.  The upshot is that in the federal system alone, over 100,000 men and women are now subject to arrest for minor infractions and to imprisonment without the protections of the Bill of Rights....

Reforming this system will not be easy, but there are a few good places to start:

First, Congress should return to its original goal of reducing post-release supervision of former inmates by limiting supervised release only to those defendants who need it most and by reducing the punishments for violations.

Second, both Congress and the courts should ensure that people facing revocation of their supervised release receive all the fundamental protections promised by the Bill of Rights, including the right to a jury, to a speedy hearing, to cross-examine adverse witnesses, and to be proved guilty beyond a reasonable doubt.

Finally, judges should stop sending people to prison for violations that are merely symptoms of an underlying drug addiction, not bad intent.  To encourage this practice, Congress should end mandatory revocations for drug possession and prohibit imprisonment for drug-related technical infractions.

Supporters of the First Step Act say their goal is “to control corrections spending, manage the prison population, provide educational and vocational training to inmates so they can successfully reenter society once released, and reduce recidivism.” To achieve this admirable purpose, reforming the nation’s prisons is indeed only the first step. Congress must also look beyond prison walls and fix our broken supervised-release system.

June 2, 2018 at 11:13 AM | Permalink


Based on my review, it appears that the probation offices treat cases as closed for defendants who are deported or removed. Thus, the supervised release sentence is essentially meaningless because there is no monitoring of those who have been deported.

Posted by: Elaine Mittleman | Jun 2, 2018 3:52:24 PM

That's not true, Elaine. People on supervised release who are deported and then return can be separately prosecuted and sentenced for both (1) illegal reentry and (2) violating the condition of their release prohibiting them from returning or committing another crime. The supervised release sentence is certainly not meaningless for these defendants.

Posted by: Curious | Jun 4, 2018 8:21:57 AM

I received 3 years of supervision in 2008. In 2013 i was released and begain my term. I was released to Southaven, MS which borders with Memphis, TN. The home I released to literally had the "Welcome to Tennessee" sign in the front yard. I was asked to find employment, so obviously i searched for employment in the city, since the Misssissippi side is essentially all houses (the suburbs of the city). My officer called days after my release to ask where i was, and i told him that i was on such and such street (an industrial area in Memphis 6 mins from my home). He flipped, and screamed that i am outside of my jurisdiction. I had no idea, he never told me anything about "jurisdiction". Days later US Marshals came and arrested me. I was sentenced to 8 months for leaving jurisdiction without permission, yet was this time given 5 years supervision.

I was rereleased in 2014. By 2018 i had been working at the same job for 3 years. I elevated my credit from no score to a score of 740. I was making 55k a year, and living with my wife and small child. I never failes a drug test or had a single issue. I was renting our home (a modest home on a golf course gated community, built in 2015). The owners offered for us to buy, and so i completed the loan proccess successfully and was simply waiting on closing day.

A couple of years eariler i had explained to my officer that we live in a city touching a major city. We live in the Memphis metro so it is ludicrous to ban me from the city i live in the metro of (i was actuallu working with permission in memphis, as MS is nothing but houses). I explained that we have a small child that deserves to go to the zoo, the childrens palace, the childrens museum, the bouncy houses, to the river and play, etc. He stated no, Memphis is dangerous you cant go, no way.

After every weekend seeing my child cry because he was basiclly imprisoned in our home with nowhere for us to take him, we started to drive to memphis anyway to let him be a kid and enjoy life.

In 2018, 4 years after being released, and a week after signing for my home and waiting for closing, i was pulled over 11 mins from my house taking my child to the Memphis Zoo. My name was ran, no ticket, only a warining for not using a turn signal when i pulled into the zoo parking lot. Days later i get a call that my name showed on his computer for being pulled over in Memphis and to turn myself in.

This time i argued to the judge all of the good i have done. That we will loose our family home, and that we just wanted to live a normal life for our child. This was to no avail and only infuriated the judge for wasting his precious time. He sentenced me to 11 months in the BOP and again, 5 years supervision.

My wife and kid were forced out of the home 2 weeks later when i couldnt show to closing for our home. She was forced to relocate to another state where a friend let her stay with our kid.

I attemped to transfer my supervision to where she is living now during my time in the BOP. This request was denied stating "no ties to our community other than wife and child, therefore request denied".

What a great system that our Supreme Court and Congress deemed was simply to assist individuals in reintegration. This is tourture. In all honesty worse than prison. At least in prison you know where you are and what it is. This, however, is like a cat toying with a ball of yarn. And when they are tired of their game, lock you away again until they want to play again. This is beyond even Orwell's imagination.

Posted by: Chris | Jan 4, 2019 12:28:28 PM

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