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.