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America’s Shadow Criminal Justice System

How the “supervised release” program pulls tens of thousands of former inmates back into prison without a fair trial

Spencer Platt/Getty Images

In the federal criminal justice system, prison is just the beginning of punishment. After prison comes “supervised release,” a set of obligations and restrictions governing an ex-con’s day-to-day schedule, employment, residence, and relationships.

In the best-case scenario, two-thirds of people successfully complete their term of supervised release. Shon Hopwood is an extraordinary example—while serving a decade in prison and three years of supervised release, he went from jailhouse lawyer to Georgetown law professor. He told me that supervised release was not a challenge for him, though despite his achievements, including a scholarship to law school and a published book, there was still “a prevailing attitude among the probation officers that it was only a matter of time before I messed up and went back.” In the end, he said, he had only a few interactions with the probation officers, who seemed more interested in policing violations than offering support.

As a federal public defender, I see the remaining one-third of cases—the worst-case scenarios where people violate their supervised release and get sent back to prison for up to five years.  In a recent case, I represented a first-time offender who flawlessly completed two years of a five-year term of supervision. But after he got into a relationship with the wrong person and started using opioids, he was reported by his probation officer, arrested, and held in prison for seven months. After a failed attempt at rehab, his probation officer reported him again, and the judge sentenced him to 18 months’ imprisonment for violating his release by failing to achieve recovery. He’s now serving that sentence in a medium-security prison, where no addiction treatment is available.

Improving this system depends on Congress, which has now taken on the worthy task of prison reform. Recently, the House of Representatives passed the First Step Act, a bill that makes it easier for inmates to earn early release and expands their access to job training and education. The proposal won an impressively bipartisan 360-59 vote and the support of the White House. While the FSA makes good changes, reform will be incomplete unless it also addresses supervised release, a web of restrictions that ensnares many former prisoners, making successful reentry to society more difficult, not less.

Supervised release is imposed by a judge at sentencing, to follow the term of imprisonment. The judge may fix the length of supervision at any number of years or for life and may include any “conditions of release” that he or she deems appropriate. In an opinion criticizing district judges for imposing supervised release without justification, Seventh Circuit Judge Richard Posner counted 10 “mandatory” conditions of release, 14 “standard” conditions, and 13 “special” or “additional” conditions, for a total of 37.  A typical set of conditions might require that you:

  • stay in contact with your probation officer;
  • live in a place approved by your probation officer;
  • maintain a full-time job;
  • report any changes in your employment, residence, or finances;
  • participate in drug or mental health counseling;
  • pass periodic drug tests;
  • avoid places where drugs are used or sold;
  • avoid anyone with a felony conviction;
  • obtain your probation officer’s permission before leaving the district; and
  • complete a community-service project.

The data show that this system is incredibly strict, and that its reach is vast. Between 2005 and 2009, federal judges imposed supervised release in approximately 300,000 cases, with an average term lasting over 40 months. By 2010, more than 10,000 federal inmates were locked up for violating their supervised release. The supervision costs the federal government $400 million annually (not including the cost of incarcerating people for violations).

The tension between supervising former inmates and helping them reintegrate into the community has been evident for a long time. In his famous history of the prison system, Michel Foucault quoted a French inmate from 1823, who lamented that restrictions on his residence and work had made it impossible for him to earn an honest living: “I was driven to despair, I wanted to become an honest man again; the surveillance plunged me back into misfortune.” One-hundred fifty years later, the American Friends Service Committee similarly denounced parole boards and parole officers as tools to keep the “powerless in line,” calling their dominion over offenders’ lives an “exquisite form of torture …. one of the most painful aspects of prison life.”

Created by the Sentencing Reform Act of 1984, supervised release was supposed to reduce the monitoring of former prisoners. Under the old “parole” system, inmates could earn early release from prison, but then had to serve the rest of their sentences in the community, subject to a parole officer’s supervision. The SRA abolished parole and instead gave judges the option of imposing supervised release only on those defendants who needed extra support to “ease the[ir] … transition into the community.” The idea was that people would spend more of their time in prison, but would also receive less supervision after their release. Yet as the political winds shifted, Congress gradually made supervised release more expansive and more punitive. Federal judges now impose supervised release in 99 percent of qualifying cases, and the number of people under supervision has increased five-fold.

Over the past 30 years, supervised release has transformed into a shadow criminal justice system that both reflects and perpetuates racial inequality. In her book, The New Jim Crow, Professor Michelle Alexander examined how restrictions on former inmates, the majority of whom are Black or Hispanic, put them “at increased risk of arrest because their lives are governed by additional rules that do not apply to everyone else.” This inequality continues into the courthouse, as unlike most defendants, people accused of violating the terms of their supervised release do not enjoy the rights to a speedy trial, a jury, confrontation of adverse witnesses, or proof beyond a reasonable doubt. The upshot is that in the federal system alone, over 100,000 men and women are now subject to arrest for minor infractions and to imprisonment without the protections of the Bill of Rights.

Recently, the restrictive conditions of supervised release have also collided with the national opioid epidemic, funneling drug addicts into prisons, rather than into treatment. Under federal law, every term of supervised release must include a condition prohibiting the person from possessing a controlled substance. If a person violates this condition, then the judge is required to revoke his or her release and impose a sentence of imprisonment. Indeed, in more than half of all cases where people are sent back to prison for violating their supervised release, it is for a technical infraction like failing a drug test or getting discharged from drug treatment. 

And if the person commits a more serious drug-related crime, like providing drugs to their friends, then he or she can be punished both for the crime and for the violation of their release. Imprisoning people for their drug addiction in this manner simply creates more instability, stigma, and trauma, making it even harder for them to recover.

Reforming this system will not be easy, but there are a few good places to start:

First, Congress should return to its original goal of reducing post-release supervision of former inmates by limiting supervised release only to those defendants who need it most and by reducing the punishments for violations.

Second, both Congress and the courts should ensure that people facing revocation of their supervised release receive all the fundamental protections promised by the Bill of Rights, including the right to a jury, to a speedy hearing, to cross-examine adverse witnesses, and to be proved guilty beyond a reasonable doubt.

Finally, judges should stop sending people to prison for violations that are merely symptoms of an underlying drug addiction, not bad intent. To encourage this practice, Congress should end mandatory revocations for drug possession and prohibit imprisonment for drug-related technical infractions.

Supporters of the First Step Act say their goal is “to control corrections spending, manage the prison population, provide educational and vocational training to inmates so they can successfully reenter society once released, and reduce recidivism.” To achieve this admirable purpose, reforming the nation’s prisons is indeed only the first step. Congress must also look beyond prison walls and fix our broken supervised-release system.