"Criminal Violations"

The title of this post is the title of this notable new article authored by Jacob Schuman and now available via SSRN. Here is its abstract:

Violations of community supervision are major drivers of incarceration.  Four million people are on probation, parole, or supervised release, and one-third of them will eventually be found in violation, sending 350,000 people to prison each year.  To reduce incarceration rates, criminal-justice reformers have called to lower sentences for non-criminal “technical violations” like missed meetings, skipped curfews, etc.

In this Article, I offer the first comprehensive analysis of “criminal violations,” the other half of cases where people violate their supervision by committing new crimes.  Based on an original empirical study of U.S. Sentencing Commission data and an examination of federal caselaw, I make three novel observations.  First, despite the popular focus on technical violations, criminal violations are the primary drivers of punishment via revocation of supervised release, accounting for two-thirds of the total prison time imposed. Second, while technical violations allow the government to punish non-criminal behavior, criminal violations give the government an additional justification for penalizing criminal conduct and an easier alternative to criminal prosecution.  Third, the immigration crime of illegal reentry is the basis for as many as one-third of all felony violations, revealing that supervised release is not just a program of surveillance and support, but also a tool of immigration enforcement.

After describing these observations, I critique the law by arguing that revocation for criminal violations inflicts unfair double punishment and erodes constitutional rights. Revoking supervised release for criminal violations triggers an exception to the ordinary rules of prosecution, which federal law has generalized into a standard practice of government.  When defendants on supervised release commit new crimes, prosecution without revocation is a better and fairer way to punish them.