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July 28, 2020

US Sentencing Commission publishes "Federal Probation and Supervised Release Violations"

Cover_violations-report-2020The US Sentencing Commission today released this lengthy notable new report titled simply "Federal Probation and Supervised Release Violations." This USSC webpage provides a summary and a extended account of "key findings":

Summary

Federal Probation and Supervised Release Violations presents data on approximately 108,000 violation hearings that occurred between 2013 and 2017.  The report examines the prevalence, types, and locations of federal supervision violations as well as the characteristics of more than 82,000 violators. The report also compares supervision violators to the population of federal offenders originally sentenced to probation or a sentence including a term of supervised release during the same time period. (Published July 28, 2020)

Key Findings
  • Nationally, the number of individuals under supervision was relatively stable during the study period, ranging from 130,224 to 136,156 during the five years. Half of the individuals under supervision, however, were concentrated in only 21 of the 94 federal judicial districts.
  • Nationally, the rate of violation hearings for individuals on supervision also was relatively stable, ranging from 16.2 to 18.4 percent during the five years, with an overall rate of 16.9 percent.  The prevalence of supervision violations, however, varied considerably among the federal judicial districts.
    • Violations accounted for more than one-third of individuals on supervision in the Southern District of California (42.1%), District of Minnesota (37.4%), Western District of Missouri (34.3%), District of Arizona (33.7%), and District of New Mexico (33.4%).  In contrast, violations accounted for less than five percent of individuals on supervision in the Districts of Connecticut (4.5%) and Maryland (4.7%).
  • Supervision violators tended to have committed more serious original offenses than federal offenders whose original sentence was probation or included a term of supervised release during the same time period.
    • For example, the rates of supervision violators originally sentenced for violent and firearms offenses (7.9% and 20.4%, respectively) were approximately twice as high compared to offenders originally sentenced during the study period (3.7% and 12.8%, respectively), a finding which is consistent with prior Commission recidivism research.
  • Drug offenses were the most common primary offense type for both supervision violators and federal offenders whose original sentence was probation or included a term of supervised release during the same time period.  There were, however, notable variations by drug type.
    • For example, crack cocaine offenders accounted for only 9.9 percent of drug offenders whose original sentence was probation or included a term of supervised release, but they accounted for almost one-third (32.1%) of supervision violators, a greater proportion than any other drug type.  The disproportional representation of crack cocaine offenders among supervision violators is consistent with prior Commission recidivism research.  On the other hand, drug offenders who received the safety valve at their original sentencing were underrepresented among supervision violators (19.1% compared to 30.7%), a finding that also is consistent with prior Commission recidivism research.
  • Supervision violators tended to have more serious criminal histories than federal offenders whose original sentence was probation or included a term of supervised release.
    • Approximately one-quarter (24.6%) of offenders with supervision violations were in the lowest Criminal History Category (CHC I) at the time of their original sentencing compared to almost half (44.9%) of offenders whose original sentence was probation or included a term of supervised release during the study period. On the other end of the spectrum, 18.3 percent of offenders with supervision violations were in the highest Criminal History Category (CHC VI) at the time of their original sentencing compared to 9.9 percent of offenders whose original sentence was probation or included a term of supervised release during the study period. This pattern is consistent with prior Commission recidivism research.
  • The majority of supervision violations were based on the commission of an offense punishable by a term of one year or less or a violation of another condition of supervision not constituting a federal, state or local offense (Grade C Violation).
    • More than half (54.9%) of violations were Grade C (the least serious classification), nearly one-third (31.5%) were Grade B, and 13.6 percent were Grade A (the most serious classification).
  • Offenders who were originally sentenced for more serious offenses tended to commit more serious supervision violations.
    • For example, over four-fifths of the Grade A violations were committed by offenders originally sentenced for drug offenses (52.0%), firearms offenses (24.5%), or violent offenses (6.3%).
  • Offenders who violated their conditions of supervision typically did so within the first two years.
    • On average, 22 months elapsed from the time supervision commenced to the commission of the supervision violation, but the elapsed time was notably longer for Grade A violations (the most serious) at 33 months.
  • The majority of supervision violators were sentenced in accordance with the Chapter Seven Revocation Table.
    • More than half (59.8%) were within the applicable range, just over one-quarter (29.1%) were below the range, and 11.1 percent were above the range. Courts tended to impose sentences within the applicable guideline range less often for more serious supervision violations. For example, for Grade A violations (the most serious classification), 39.4 percent were sentenced within the applicable range, and 54.2 percent were sentenced below the range. In contrast, for Grade C violations (the least serious classification), 63.6 percent were sentenced within the range, and 22.1 percent were sentenced below the range.

July 28, 2020 at 02:52 PM | Permalink

Comments

Very interesting report! But it seems to me that the Commission made a mistake here by lumping people on probation together with those on supervised release as "offenders sentenced to supervision."

Probation and supervised release are very different sentences. Probation is an alternative to imprisonment and is typically imposed for minor/first-time offenses. Supervised release is in addition to imprisonment and is imposed for all sorts of crimes.

Because of these differences, the population of offenders sentenced to each kind of supervision is also likely very different. For example, the average person on probation likely has a less aggravated criminal history than one on supervised release. And since criminal history is a major factor at revocation hearings, judges are likely to punish probation violators less harshly than supervised-release violators.

It would have been better for the Commission to distinguish between revocations for these two distinct groups of offenders. Combining them clouds the analysis, as it really is apples and oranges.

Posted by: Jacob Schuman | Jul 28, 2020 6:48:17 PM

Excellent point, Jacob. If you might be inclined to provide a "critical review" of this report (or any USSC report at any time), please think of this blog (or the Federal Sentencing Reporter) as a possible place for it.

Posted by: Doug B. | Jul 29, 2020 8:51:08 AM

Jacob - I understand your distinction, but your information may not entirely be true. As a former USPO, I have supervised those placed on probation and those placed on supervised release following incarceration. I have written several hundred PSR's and made recommendations for probation and prison and had conversations with federal judges in chambers about whether the defendant is more amenable to probation than prison. While partially true that "probation is an alternative to imprisonment and is typically imposed for minor/first-time offenses," I can tell you based upon my experience, sometimes the probation cases are actually harder to supervise. They didn't go to prison, they got the break, and often times, they are the ones "who didn't get it" and take advantage of the probation break they received and end up getting revoked. It would be interesting nonethesless to see the difference, but I would guess it would not be statistically significant. Your statement, "And since criminal history is a major factor at revocation hearings, judges are likely to punish probation violators less harshly than supervised-release violators." This is not entirely true either.

When probation violators are faced with revocation, and the court revokes them and they are faced with the stat max for the crime they originally committed, not the stat max for the TSR violators. So in some cases, the probation revocation involves a much harsher punishment. So if a defendant was on probation for a class C felony - and that stat max was 10 years for the original crime, the judge, at the probation revocation can sentence up to 10 years. If that same defendant was on TSR - the most the judge can revoke for a class C felony is only 2 years - see 18 USC 3583 and 18 USC 3565.

Posted by: Atomicfrog | Jul 29, 2020 2:18:51 PM

Thanks for your comment, Atomicfrog.  The additional differences you point out between probation and supervised release are all the more reason why it would have been interesting (and important) for the Commission to distinguish between them in the report.  I'm always glad to hear the USPO perspective on these matters; if you're ever willing to discuss with me further, please shoot me an email!

Doug, I'm currently working on an article that involves discussion of the differences between probation and supervised release.  Once that's done I'd love to do a critical review of this report, perhaps as a blog post.  Thanks again for your support!

Posted by: Jacob Schuman | Jul 30, 2020 9:48:51 AM

AtomicFrog -

I understand what you're saying about the liabilities for probation violations and supervised release violations. However, I think you got the last piece of data wrong. SR violations can be up to the maximum allowable term of supervised release for the original crime of conviction. §3583(e)(3).

Class C felonies, however, are capped at three years of supervised release, not two years. See §3583(b)(2) and U.S.S.G. §5D1.2(a)(2). Also, the revocation sentence can contain a follow-on term of supervised release, but the total of incarceration term + supervised release term is limited to that 3-year cap.

Posted by: Eric | Jul 31, 2020 10:48:38 AM

Eric - Not exactly - while correct the maximum term of TSR for Class C felonies is 3 years - the maximum the court can revoke for is 2 years (read towards the end of 18 USC 3583(e)(3) - depending upon the class of felony, will determine how long the defendant may be sentenced to for a TSR violation - "...more than 2 years in prison if such offense is a class C or D felony."

Posted by: Atomicfrog | Jul 31, 2020 3:00:41 PM

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