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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