Good Behavior Rewarded

Vol. 36, Number 3—March 2004

Good Behavior Rewarded

Good behavior is earning certain federal offenders early release from supervised release or probation. But qualifying for early termination is no easy matter.

The law permits courts to terminate probation in misdemeanor cases at any time, and to terminate supervision or probation in felony cases after one year. Until recently, however, no national policies or guidelines existed that might help probation officers assess the suitability of eligible offenders.

"Early terminations do occur sometimes and the practice varies significantly from district to district," said Chief Judge William Wilkins (4th Cir.), "but there was nothing in our national supervision policies to encourage officers to systematically assess the suitability of offenders for early termination of supervision."

With input from probation officers, the Judicial Conference Committee on Criminal Law, chaired by Wilkins from 1999 until 2003, created nine criteria to help probation officers properly identify offenders for consideration for early termination. The Judicial Conference endorsed the criteria at its March 2003 meeting as part of the revised post-conviction supervised release policies.

"The Committee believes that when the conditions of supervision imposed have been met, and the offender has successfully reintegrated into the community and does not pose a foreseeable risk to public safety in general or to any individual third party," said Wilkins, "the probation officer should request the court to consider early termination."

The criteria are:

stable community reintegration (e.g., residence, family, employment);
progressive strides toward supervision objectives and in compliance with all conditions of supervision;
no aggravated role in the offense of conviction, particularly large drug or fraud offenses;
no history of violence (e.g., sexually assaultive, predatory behavior, or domestic violence);
no recent arrests or convictions (including unresolved pending charges), or ongoing, uninterrupted patterns of criminal conduct;
no recent evidence of alcohol or drug abuse;
no recent psychiatric episodes;
no identifiable risk to the safety of any identifiable victim; and
no identifiable risk to public safety based on the Risk Prediction Index.

"These criteria are very thoughtful, and they are designed to identify any offender who is not ready for early termination," said current Criminal Law Committee chair, Judge Sim Lake (S.D. Tex.).

No offender with identifiable risks will be considered for early termination. "Many offenders have been under supervision, and continually evaluated for a number of years before they are even considered for early termination," said Lake. "They have demonstrated—usually to cautious and skeptical probation officers and judges—that they are able to live law-abiding lives." Even when all criteria are met, the sentencing judge makes the final decision on whether or not to terminate early.

Early termination will help probation officers deal with a significant workload growth associated with a steady rate of increase in the number of offenders under supervision. On September 30, 2003, the total number of persons under supervision was 110,792—a new record and a 2 percent rise over the number of 2002. By the end of fiscal year 2004, the number of offenders under supervision is projected to reach 119,200. The number of probation officers is not expected to make a corresponding jump, and funding may even be reduced in coming years.

"Removing low-risk offenders from the caseloads allows officers to focus on higher-risk offenders," said John Hughes, the Administrative Office's Assistant Director, Office of Probation and Pretrial Services. "By closing cases that meet the criteria, officers will be in a better position to deal with the growing number of offenders reentering the community after prison terms. Those offenders often have difficulty establishing a residence, getting a job, or dealing with drug or mental health problems, and therefore demand more of an officer's time in the critical, early stages of supervision."