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September 2010

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This article is in the news archives --- for current news go to the Third Branch News.


Report Examines Terms of Supervised Release

A new report by the U.S. Sentencing Commission shows that federal courts impose terms of supervised release in the overwhelming majority of cases, even when it is not statutorily required and regardless of the offense type or the offender’s criminal history.

Nearly one million federal offenders have been sentenced to terms of supervised release since the Sentencing Reform Act authorized such terms for most offenses committed after November 1, 1987. The USSC report, “Federal Offenders Sentenced to Supervised Release,” addresses the legal issues that have arisen in that time and analyzes available data on the widespread imposition of supervised release.

Under 18 U.S. C. § 3583, the report notes, “unless otherwise provided by another statute, in federal felony and Class A misdemeanor cases, a term of supervised release following any period of imprisonment may be imposed in the sentencing court’s discretion.” Terms generally range from 1 to 5 years depending on the class of offense, although lifetime terms are authorized for some types of offenses. However, as the report also points out, the U.S. Sentencing Guidelines broadened the applicability of supervised release to virtually all felonies.

(click to enlarge)

Criminal History Category for Offenders Sentenced to Supervised Release

Criminal History Category for Offenders Sentenced to Supervised Release

Some of the legal issues that have arisen over time have concerned the setting of conditions of supervision by a court when imposing a term of supervised release. Although the court may order any conditions it considers appropriate, the condition must, among other limits, involve “no greater deprivation of liberty than is reasonably necessary.” Defendants have unsuccessfully challenged conditions imposed by the courts that require them to provide DNA samples, make restitution to a victim, provide access to financial information, refrain from excessive use of alcohol, and avoid former associates, places, and even occupations. For non-citizens, deportation may be a special condition of supervised release.

Of the 116,945 offenders sentenced to prison terms of more than one year post-Booker, where supervised release was not statutorily required, a term of supervised release was still imposed in 99.1 percent of the cases. The average term of supervised release for these offenders was 35 months.

Although rates may be close to 100 percent in some categories, for all offenders given terms of supervised release between 2005 and 2009, no single type of offense was an absolute guarantee of a term of supervised release. Of the four most common offense types —drug trafficking, immigration, fraud, and firearms—which constituted more than 80 percent of all cases sentenced during this time period, the rates of imposition of supervised release ranged from 89.2 percent to 99.6 percent. Offenders convicted of simple drug possession or of antitrust offenses had the lowest rates of imposition of supervised release at 56.7 and 62.5 percent, respectively.

Rates of imposition of supervised release showed little difference when comparing criminal history categories of offenders. From Criminal History Categories I through V, rates of offenders sentenced to supervised release varied from 95.1 to 98.4. However, 99.2 percent of the offenders in the highest, Criminal History Category VI, had supervised release imposed and, at an average of 48 months, they served the longest terms, compared to an average of 41 months for the other categories.

The report notes that the number of life terms of supervised release has increased steadily from 2005 to 2009. In post-Booker fiscal year 2005, life terms of supervised release were imposed for 120 offenders. By the end of fiscal year 2009, that number had increased to 743 offenders. The overwhelming majority, 82.5 percent, of these offenders, the USSC reports, were convicted of pornography/prostitution offenses. An additional 13 percent were convicted of sexual abuse. The total number of pornography/prostitution and sexual abuse cases increased in those years, but the proportion of offenders committing these offenses who were sentenced to life terms of supervised release also increased. In fiscal year 2005, 10.3 percent of pornography/prostitution offenders were sentenced to life terms of supervised release, but that proportion increased to 30.6 percent in fiscal year 2009. In the same time period, the proportion of sex abuse offenders sentenced to life terms of supervised release went from 9.3 percent to 20.5 percent.

Finally, in 2008, the USSC study reports that the term of supervision of two-thirds (67 percent) of the 35,724 offenders under active supervised release either expired or was terminated without revocation—“successful” closures. Success rates in supervision are highly correlated with offenders’ criminal history categories at the time of the original sentencing: The lower the criminal history category, the greater the likelihood the offender will complete supervision without revocation for violation of the conditions of supervision.