Supervised Release: An Abbreviated Outline of Federal Law

CRS Report for Congress
Supervised Release: An Abbreviated Outline
of Federal Law
Charles Doyle
Senior Specialist
American Law Division
Summary
Conviction of a federal crime ordinarily results in the imposition of a term of
supervised release. Supervised release is the successor to parole in the federal system.
Both parole and supervised release call for a period of supervision following release
from prison and for reincarceration upon a failure to observe designated conditions.
Parole ordinarily stands in lieu of a portion of the original term of imprisonment
imposed, while supervised release begins only after the original term has been served.
Probation officers monitor those on supervised release who must comply with a fairly
extensive range of conditions crafted to reflect their offense, criminal history, and
rehabilitative needs. This is an abridged version of CRS Report RL31653, Supervised
Release: A Brief Sketch of Federal Law, stripped of footnotes and citations to authority
found in the longer version.
Length of Term. When sentencing a defendant to a term of imprisonment, a
federal court usually imposes an additional term of supervised release to be served upon
a defendant’s release from prison. A term of supervised release is required by statute in
certain drug and domestic violence cases and required by operation of the Sentencing
Guidelines in most felony cases. Except for some drug or terrorism cases, the statute sets
the maximum terms of supervised released at not more than five years for class A or class
B felonies; not more than three years for class C or class D felonies; not more than one
year for all other crimes. The USA PATRIOT Act and the USA PATRIOT Improvement
and Reauthorization Act amended the supervisory release statute so that the maximum
term of supervised release for certain crimes, frequently associated with acts of terrorism,
is any term of years or life. Several federal controlled substance statutes establish
mandatory minimum terms of supervised release. Thus, large scale drug traffickers in the
most dangerous of controlled substances (more than a kilogram of heroin for instance)
must be sentenced in a term of supervised release of not less than five years (not less than
10 years upon a second or subsequent conviction). The mandatory minimums are reduced
when smaller quantities or less dangerous controlled substances are involved (1) at least
four years (8 years for recidivists) for dealers in slightly small amounts for the most
dangerous substances (between 100 and 1000 grams of heroin for instance); (2) at least


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three years (6 years for recidivists) for slightly less dangerous controlled substances (for
instance, GHB one of the so-called “date rape” drugs); (3) at least two years (4 years for
recidivists) for controlled substances such as 50 kilograms of marijuana; and (4) at least
one year (2 years for recidivists) for schedule IV or V controlled substances.
Under certain aggravating circumstances, these mandatory minimum terms of
supervised release double (treble in the case of recidivists), i.e.: (1) distribution at a truck
stop or highway rest area, (2) distribution to an individual under the age of 21, (3)
distribution near a school, housing project, youth center or the like, (4) distribution using
an individual under the age of 18, or (5) distribution to a pregnant woman.
Conditions. A defendant may be returned to prison if he violates any of the
mandatory or discretionary conditions imposed as part of the term of supervised release.
All supervised release orders contain conditions under which:
- defendants must refrain from criminal activity;
- any defendant in a domestic violence case must attend an approved offender
rehabilitation program if one is located within 50 miles of his residence;
- any defendant convicted of sex offenses must register with state authorities;
- defendants must cooperate with the authorized collection of a DNA sample;
- defendants must submit to periodic drug tests; and
- defendants must adhere to the payment schedule for any unpaid fine imposed,
restitution ordered, or special assessment.
The Sentencing Guidelines add two mandatory conditions, one for the payment of
fines and the other for the payment of restitution, that must be imposed unless there are
recognized grounds for not doing so.
The probation statute contains a long list of conditions that may be used in probation
cases. The supervised release statute adopts most of these by cross reference and grants
a sentencing court latitude to impose any other appropriate condition, but allows the court
to impose only those conditions that are reasonably related to the crime, to the defendant’s
crime-related history, deterrence of crime, protection of the public, or the defendant’s
rehabilitation, and that involve no greater deprivation of liberty than is reasonably
necessary.
The Sentencing Guidelines divide the specifically identified discretionary conditions
into three groups: “standard” conditions that are imposed in most cases; “special”
conditions that may be applied to particular kinds of cases, such as those that may apply
when a defendant has unpaid fines or restitution obligations; and “additional” conditions
that go to a defendant’s mobility and involve things like community confinement, curfews
and occupational restrictions.
The Sentencing Guidelines’ standard conditions are crafted to permit the court to
order defendants to remain in close conduct with a probation officer. They include the
authority to order the defendant to:
- report to a probation officer;
- allow his probation officer to visit him (In addition to the visitation condition, a
sentencing court may demand that the defendant consent to the warrantless search



of his person or property as a condition of supervised release, as long as the
condition is reasonably related to the defendant’s crime, history, or rehabilitation.
Whether searches conducted pursuant to such a condition pass muster under the
Fourth Amendment may depend upon the facts of an individual case.);
- respond honestly to his probation officer’s questions and follow the officer’s
instructions (The condition requiring a defendant to respond to completely and
truthfully is valid notwithstanding the defendant’s Fifth Amendment privilege
against self-incrimination, but the defendant’s valid claim of the privilege may not
be considered a violation of the condition.);
- notify his probation officer any change of address or employment;
- remain in the district unless the court or probation officer approves travel; and
- notify his probation officer if the defendant is arrested.
The standard conditions also give instructions calculated to ensure that the defendant
avoids criminal entanglements. In this vein, they demand that the defendant:
- avoid criminal associations (The general condition restricting a defendant’s
contact with felons may be expanded to those convicted of related misdemeanors,
the defendant’s associational rights notwithstanding. Under the appropriate
circumstances the restriction may be couched in geographical terms, banning a
defendant from the scene of her past criminal activities, for instance. Where the
defendant has a history of excessive gambling, the court may reasonably prohibit
him from gambling or entering gambling establishments.);
- avoid illicit drug markets, stash houses, and crack houses;
- avoid the use of illicit drugs or the excessive use of alcohol (Although the
Sentencing Guidelines specifically permit a court to prohibit the excessive
consumption of alcoholic beverages as a condition of supervised release, conditions
demanding total abstention are apparently common. The condition will be upheld
where the defendant has a history of alcohol abuse even if the abuse is unrelated to
the crime for which he was most recently convicted. The ban on alcoholic
consumption, however, may not be imposed as condition of supervised release where
there is no evidence that alcohol played a role in the defendant’s crime or that the
defendant has a history of alcohol abuse.);
- avoid becoming an informant without permission of the court (Under the general
authority to impose “any other” conditions of supervised release the sentencing court
considers appropriate, the courts have upheld conditions that strive to separate the
defendant from other circumstances related to his past criminal conduct, including
gambling prohibitions.); and
- stay gainfully employed.



The remaining standard conditions instruct the defendant to honor either specific or
general legal obligations, ordering him to:
- support his family (A sentencing court may condition a defendant’s supervised
release on his compliance with the terms of a state child-support order, but it may
not impose a more demanding payment schedule than the state order requires nor
otherwise craft the condition in conflict with the state support order.);
- pay any unpaid special assessment;
- advise his probation officer of circumstances that might prevent his making fine,
restitution or special assessment payments; and
- notify victims and those possibly at risk (The conditions may insist on compliance
with state notification procedures even those procedures are not otherwise required.).
The “special” conditions are directions that a sentencing court may include within
a supervised release order involving:
- a ban on possession of weapons (Under the appropriate circumstances, the
condition limiting the possession of weapons may extend not only to firearms but to
crossbows, bows, and arrows.);
- limits on debt obligations (The Sentencing Guidelines, however, do not authorize
a condition that a defendant repay personal debts unrelated to the offense for which
he was most recently convicted or to any other aspect of his criminal history.);
- probation officer access to financial information (The Sentencing Guidelines
authorize access where the court has ordered restitution, forfeiture, notice to victims,
or the payment of fine, but a court may condition supervised release upon access in
other cases as well. Moreover, when reasonably related to the offense, the condition
may include a demand to provide information concerning the financial activities of
the defendant’s spouse or legal entities under his control.);
- drug treatment (The court may condition a defendant’s supervisory release upon
participation in a drug treatment program based on substance abuse occurring prior
to the offense conviction. Nevertheless, it may not condition his supervised release
on his participation in a program of drug or alcohol abuse treatment in the absence
of any evidence that drug or alcohol abuse figured in the defendant’s offense or in
his criminal history.);
- mental health treatment (The courts have experienced some difficulty in
formulating conditions, other than treatment, in cases of sex offenders and
defendants with a history of sexually abusing children, particularly when both the
defendant’s crime or history and the conditions involve computer use. When the
offense of conviction is a sex offense or the defendant has a history of sexual
misconduct, it is no abuse of discretion for a court to include within a defendant’s
supervisory release order a requirement to comply with state sex offender
registration laws, to participate in sex offender treatment, or to refrain from having



contact with children, from engaging in an occupation that involves access to
children, or from possessing sexually oriented material.);
- deportation; and
- sex offender treatment (The courts have experienced some difficulty in formulating
conditions, other than treatment, in cases of sex offenders and defendants with a
history of sexually abusing children, particularly when both the defendant’s crime
or history and the conditions involve computer use. When the offense of conviction
is not a sex offense, a remote conviction for a sex offense in the defendant’s past
may be insufficient to justify a condition requiring the defendant to register under
sex offender registration laws, participate in sex offender treatment, refrain from
having contact with children or from engaging in an occupation that involves access
to children, or from possessing sexual oriented material.).
The “additional” conditions speak to:
- community confinement (Supervised release, by definition, is a term served after
release from prison. Yet the Sentencing Guidelines and at least one circuit court
indicate that this does not preclude supervised release conditions that involve
confinement for rehabilitative purposes other than in prison.);
- home detention;
- community service;
- occupational restrictions (Occupational restrictions are not favored, the Sentencing
Guidelines demand that they be narrowly drawn, and they will not be upheld as a
condition on supervised released unless they are directly related to the offense of
conviction.);
- curfew; and
- any other condition the court considers to be appropriate (As with any other
discretionary condition, a sentencing court may impose any condition that, among
other things, is reasonably related to the crime, the defendant’s crime-related history,
deterrence of crime, protection of the public, and the defendant’s rehabilitation, as
long as the condition involves no greater deprivation of liberty than is reasonably
necessary, 18 U.S.C. 3583(c), (d). Thus, a history of drug abuse and conviction for
possession of a machine gun does not justify supervisory release conditions that
prohibits the use of tobacco or the consumption without a prescription of aspirin or
over the counter cold remedies.).
Modification and Revocation. The sentencing court may (1) modify the
supervised release conditions at any time, (2) discharge the defendant from supervised
release one year after the defendant’s release, or (3) revoke the defendant’s term of
supervised release, require him to return to prison, and impose an additional term of
supervised release to be served thereafter.



Modifications may be based on a number of factors:
- the nature of the crime and defendant’s history;
- deterrence;
- public safety;
- rehabilitation;
- the Sentencing Guidelines;
- Sentencing Guideline policy statements;
- sentencing disparity; and
- restitution.
The grounds for modification permit both extension of a term of supervised release
and an adjustment in the conditions of supervised release including a condition for home
detention, notwithstanding the fact that home detention is elsewhere characterized
available only as an alternative to incarceration. Adjustment may also include adjustment
of the conditions dealing with the payment schedule for restitution or for the defendant’s
fine. A court may not, however, entertain a petition to modify conditions of a term of
supervised release based on the purported illegality of the original conditions.
By statute, a court must revoke a defendant’s supervised release for unlawful drug
or firearm possession, refusal to comply with a drug testing condition or three positive
drug tests within a year. The Sentencing Guidelines suggest as a matter of policy that a
court should also revoke a defendant’s supervised release for the commission of any
felony. The same considerations which instruct modification direct revocation: (1) the
nature of the crime and defendant’s history, (2) deterrence, (3) public safety, (4)
rehabilitation, (5) the Sentencing Guidelines, (6) Sentencing Guideline policy statements,
(7) sentencing disparity, and (8) restitution.
Revocation and modification hearings are governed by the provisions of Rule 32.1
of the Federal Rules of Criminal Procedure. The fact that the revocation hearing is held
without the benefit of a jury does not make it constitutionally suspect. Upon revocation
of a term of supervised release, a defendant may be imprisoned for a term ranging from
one to five years depending upon the seriousness of the original crime, and upon release
may be subject to a new term of supervised release. As a matter of policy, the Sentencing
Guidelines recommend various terms of imprisonment to be imposed upon revocation of
an original term of supervised release calibrated according to the serious of the original
crime and the criminal record of the defendant.