« A sadder Pennsylvania variation on Going in Style with elderly, ill, repeat bank robber | Main | Recapping lots of (little?) new criminal justice reforms in California »

October 4, 2022

"Expedient Imprisonment: How Federal Supervised Release Sentences Violate the Constitution"

The title of this post is the title of this notable new article now available on SSRN and authored by Stefan Underhill and Grace Powell. (Among the reasons this article is interesting is because one of its authors is Chief Judge of the US District Court for the District of Connecticut.) Here is the article's abstract:

Supervised release sentences violate the grand jury clause and double jeopardy clause of the Fifth Amendment.  Because supervisees have a right to indictment, violation proceedings constitute prosecutions within the meaning of the Sixth Amendment.  Violation proceedings should not provide an expedient path to imprisonment but instead should afford defendants the full range of criminal constitutional rights.

UPDATE: The final published version of this article is now available here at 108 Va. L. Rev. Online 297 (Nov. 15, 2022).

October 4, 2022 at 09:38 AM | Permalink


I don't get it, to be on supervised release there has to have been a conviction to begin with. SR simply relieves the offender of some potential consequences of that conviction. Why should it require meeting the same burden as the original conviction to re-impose those conditions?

Posted by: Soronel Haetir | Oct 4, 2022 1:36:43 PM

Easy solution for the 95% of cases that are plea bargained: The bargain henceforth will contain a proviso that the defendant agrees that violation proceedings for any supervised release term will be handled under the same procedures that exist now. For those cases, we never even have to reach the question presented by this article.

Posted by: Bill Otis | Oct 4, 2022 2:07:10 PM

You don't get it because your understanding of federal supervised release is totally inaccurate. Supervised release does not "relieve" the defendant of anything. A term of supervision is part of the original sentence and is imposed in addition to, not in lieu of, a term of imprisonment. When the defendant is found to have violated supervised release (the subject of this article), nothing is "reimposed." A new term of imprisonment is imposed, as is a new term of supervision, often with new conditions.

Posted by: AFPD | Oct 4, 2022 2:09:28 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB