Probation and Supervised Release: Working as Intended?

The USSC Releases Its First Report on Federal Supervised Release Violations

When you are placed on probation or on supervised release, the intention is that you need to do your best make sure that you “keep your nose clean,” and stay away from trouble.  That is because any scrape with the law while on probation or supervised release could result in your incarceration, or re-incarceration.

Yet, even though it is much better to be on the outside than inside a federal prison, probation and release violation hearings are very prevalent throughout the country.  So prevalent, in fact, that one is left to wonder:  Are the remedies of probation and supervised release working as intended?  Or, are those accused of violating their release requirements being held to an impossible standard, thereby making probation and supervised release simply a gateway to eventual incarceration?

Those are important questions, particularly today, because gone is the time when the American public will tolerate the kind of mass incarceration that this country has suffered over the last few decades.

Fortunately, the United States Sentencing Commission (USSC) just came out with a new report – the first of its kind – that analyzes the implications surrounding federal violations of probation and supervised release.  The report, Federal Probation and Supervised Release Violations, published in July 2020, has some compelling findings that touch upon the questions posed above.

Accordingly, in this article, we will discuss some basics with regard to probation, supervised release, and the process related to violations of both forms of criminal supervision.  Most importantly, this article will delve into the key findings of the USSC’s report.  If you have additional questions about probation or supervised release in your own life, we welcome you to contact the Law Office of Jeremy Gordon with our online form.  Let us get you the legal assistance you need.

The Law Behind Probation and Supervised Release

Beginning with a change in the U.S. sentencing laws in 1984, federal courts no longer imposed probation as a way to stay, or put off, a criminal sentence.  Rather, probation became a sentence in itself, typically as an alternative to incarceration.  It is generally imposed for less serious crimes.  The idea behind probation is that a person can learn from his or her mistake and can be rehabilitated without the need for prison.

Of course, courts have the discretion to impose many requirements and restrictions on people who are sentenced to a probationary term.  Such requirements may include:

  • Submitting to periodic drug testing;
  • Submitting to DNA testing;
  • Reporting to a probation officer with a certain frequency;
  • Attend rehabilitation programs;
  • Paying an amount of restitution; and
  • Paying special assessments and fines.

Supervised release is related to probation, though arises in a different context.  Instead of being sentenced to a term of probation at the front end, supervised release is placed at the back end of a term of incarceration.  The purpose of supervised release is to release someone from prison, yet maintain some supervision, in order to facilitate an offender’s reentry into society.

Though coming from a different context, the conditions for supervised release are very similar to those for terms of probation, like those listed above.

Process and Consequences for Violations of Probation and Supervised Release

Federal courts retain jurisdiction over people who are on probation or supervised release.  That means that if there is an allegation that a person violated the conditions of their probation or release, the court must go through the following process:

  1. Hold a preliminary hearing to determine whether a violation was actually committed;
  2. If the court determines there is probable cause that a violation was committed, then a full hearing is scheduled.
  3. If the court finds a violation after the full hearing, then the court recommends the penalty for the violation.

Common violations include a re-arrest for drug possession, testing positive in a drug test, failing to keep contact with a probation officer, and possessing a firearm in violation of probation conditions or law.

The penalties available to the court for a probation or supervised release violation include (i) continuing supervision by extending the term of probation or supervised release; (ii) modifying release conditions; or (iii) revoking the term of supervision and ordering a prison sentence.  Depending upon the violation, the prison term could be substantial.

Key Findings

With that background in mind, we can now turn to the key findings of the recent USSC report.  In creating the report, the USSC used data for the five years from 2013 to 2017.  Those key findings are as follows:

  1. Numbers Have Remained Stable, But Supervision Concentrated in Few Districts

The USSC found that over the course of five years, the number of those on probation and supervised release, as well as the number of violators, has remained relatively stable.  Interestingly, however, over half of people under supervision were concentrated in only 21 of the 94 federal judicial districts.  That seems to indicate that many federal courts are not taking advantage of non-incarceration options for federal offenders.

  1. Violators Tend to Be More Serious Criminals

The report revealed a not altogether surprising conclusion that those who have worse criminal records and who committed more serious crimes are more apt to violate their conditions of supervision.  Indeed, the rates of violators originally sentenced for violent and firearms offenses were about twice as high as violators who were sentenced to supervision in the first place.

  1. Crack Cocaine Offenders Violated Supervision at a Greater Rate

Only 10% of those placed on probation or supervised release committed an offense involving crack cocaine, but crack cocaine offenders accounted for almost 33% of supervision violators.

  1. Violations Tended to Occur Within the First Two Years

The statistics showed that those who violated their probation or supervised release did so, on average, within two years of the time that their supervision began.  Indicating that those who will ultimately violate their release conditions will normally do so relatively soon after being put on supervision.

Conclusion

The takeaway from the USSC’s report is that the relatively high number of supervision violations has not changed over the last half decade, and that the more serious the initial criminal offense, the higher chance that offender will violate any release conditions.

The key to keep in mind, however, is to watch out for courts and probation officials that hold offenders to an impossible standard to meet conditions they simply cannot meet.  In those cases, offenders need smart, effective representation to ensure that courts are not allowed to send people to prison without being challenged.  That is why we invite you to contact the Law Office of Jeremy Gordon.

About the Law Office of Jeremy Gordon

The Law Office of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had favorable outcomes in more than 70 cases in the past four years.  Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to reach out to us today to visit with us on how we might be able to help you or your loved one get the representation they deserve. For more information on appeals please click here.  If you can also add us on Facebook or Twitter.  

About the Law Office of Jeremy Gordon:

Located in the Dallas/Fort Worth Area, the Law Office of Jeremy Gordon has been an award winning federal criminal defense firm since 2012. We have had favorable outcomes in more than 70 cases in the past four years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve. You can also add us on Facebook or Twitter.  You can sign up for our newsletter below.

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