Friday, November 7, 2014

The Federal Supervised Release System: Kicking an Offender Down When He Is Trying to Get Back Up

In 1984, the Sentencing Reform Act abolished the Federal Parole System and replaced it with the Federal Supervised Release System. Though the Federal Supervised Release System was supposed to serve the same rehabilitative function for offenders as the parole system, supervised release has led to many negative consequences for offenders. Instead of serving as a system promoting offender rehabilitation as Congress intended, the supervised release system has actually served as more of a leash, pulling offenders right back into prison.
Under the previous parole system, a defendant would be sentenced to a term of imprisonment and after serving the minimum sentence for his prison term, a parole board would determine whether the defendant was ready for release. When the inmate was released from jail on parole, a parole officer would then monitor him or her in the community. The effect of the parole system was that the individual was serving a portion of his or her jail time out in the community under supervision. It seemed reasonable that if one were let out of jail early, that there would be some type of supervision of the individual while out in the community completing his sentence.

Thus, in 1984 when the federal parole system was abolished and Congress instead promoted determinate sentencing, it appeared that there would no longer be a need for community supervision terms. Under the determinate sentencing system, inmates would now be serving their prison terms in jail completely. Yet, despite the new determinate sentencing guidelines, Congress began a new release system somewhat similar to the parole system, called the supervised release system. Under the supervised release system, a monitoring period can be imposed on a defendant in addition to his or her prison terms. Thus, unlike parole, which gives offenders an opportunity to serve the rest of their terms in the community and to reintegrate into society, conditions of supervised release serve as an added sentence once an offender has already finished his sentence of imprisonment. The supervised release system is harsh in that it requires the offender to serve his full time in jail and then to serve another sentence term outside in the community.

Under the prior parole system, the primary function was rehabilitation; the defendant’s supervision while out in the community helped to facilitate his transition back into the community. But now, the new supervised release system functions more to the offender’s peril: instead of helping offenders transition back into the community, the supervised release system serves more as an added punishment for an offender who has already served his jail time.   By placing substantial restrictions on individual liberty and affording offenders decreased constitutional protections, the supervised release system does not effectively help offenders to reintegrate into the community, but instead gives them more constraints.
The impact of the supervised release system has led to a lack of discretion by judges during sentencing to supervised release, severe restrictions on an offender’s liberty, and a high rate of offenders being sent back to prison. In most cases, supervised release is not mandatory and its imposition is up to the judge’s discretion. Yet, data shows that courts impose supervised release on defendants at very high rates, despite an offender’s criminal history and often despite the offense committed.  Over 95% of people sentenced to jail time in the federal system are also sentenced to supervised release.
Not only is supervised release overly imposed on defendants, but also supervision terms are overly restrictive on offenders. To begin, supervision terms are excessive. The average sentence for supervised release is almost three and a half years, which is a major increase on the time that the individual is under the control of the Criminal Justice System. If a defender violates his conditions of release over that period of time, even if it the offender is three years into his three and a half year supervision term, a court is authorized to revoke the offender’s supervision term and order him to serve in prison all or part of the term of his supervised release. The offender receives no credit for the three years he has already served on supervised release. And, in fact, revocation occurs quite frequently for persons sentenced to supervised release. Almost a third of individuals sentenced to supervised release will later violate their supervision and get sent back to prison.
The conditions of supervised release tend to be very restrictive and invasive. For instance, many individuals on supervised release are subjected to a finance condition, which allows the probation officer to access the individual’s personal finance information. Supervised release conditions may even affect an individual’s employment options, by restricting an individual from pursuing certain forms of employment.  These types of conditions help less with transitioning, and are actually more restrictive of the individual's freedom.

The greatest restraint on liberty is the diminished constitutional protections that persons on supervised release are afforded. Though offenders on supervised release effectively face a new term of imprisonment for violation of their conditions, defendants at revocation hearings are not afforded the same protections as defendants in criminal trials. Violations of conditions do not need to be proven beyond a reasonable doubt, but may be sustained simply by a finding of the preponderance of the evidence. A preponderance of the evidence standard only ensures a finding that it “more likely than not” that the offender violated his conditions. In addition to the low standard applied at revocation hearings, the rules of evidence also work differently at revocation hearings. Evidence typically excluded from criminal trials, such as hearsay testimony, are allowed at revocation hearings for supervised release. When facing such a low standard for revocation and less observance of the rules of evidence, offenders at revocation hearings are almost certain to be sent right back to jail at the conclusion of the hearing.

Thus, instead of helping offenders to reintegrate into society, the federal parole system has served as an added shackle, imposing further restrictions on individual liberty and denying them constitutional protections, which lead most offenders right back into the prison system. For these reasons, it is necessary for the Federal Supervised Release System to undergo reform. On one hand, the system could return back to a parole-like model, where defendants are serving the rest of their jail time under a term of supervised release. In this way, the offender isn’t facing an added sentence to his original sentence, but is instead serving the remainder of his original sentence out in the community. The parole-like model tended to support offender rehabilitation and to help an offender transition back into the community.

If the supervised release system isn’t transitioned into a more rehabilitative model, then courts should exercise more discretion in determining who will get sentenced to supervised release. Only the offenders who are a potential threat to the community should be sentenced to supervised release, not 95% of persons who go before the court. If judges exercised more discretion in these supervised release sentences, then the number of offenders returning back to prison will greatly decrease and fewer offenders will face years of supervised release upon their release from prison. The exercise of discretion would necessarily lead to fewer offenders facing the severe restraints and restrictions on their freedoms upon release from jail.

When taking the impacts of the supervised release system into consideration, it is really important for current defense attorneys to not simply advocate for low imprisonment terms for convicted defendants; but also to advocate for defendants to either not be sentenced to supervised release or to receive a low supervised release term. Otherwise, defendants will almost certainly be sentenced to supervised release following a conviction and will then face on average, three and a half years of supervised release. Because offenders on supervised release are sent back to jail so frequently, it is really important for criminal defense attorneys to advocate for lower supervised release sentences—as that appears to be the only hope for defendants until the supervised release system is reformed. 

By Makia Weaver
Staffer, Criminal Law Practitioner

Photo by Andrew Bardwell via Flickr.

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