63 Pages Posted: 16 Feb 2022 Last revised: 29 Jun 2022
Date Written: February 15, 2022
Violations of community supervision are major drivers of incarceration. Four million people in the United States are serving terms of probation, parole, or supervised release, and one-third of them will eventually be found in violation of a condition, sending 350,000 people to prison each year. To reduce incarceration rates, criminal-justice reformers have called to lower sentences for non-criminal “technical violations,” such as missed meetings, skipped curfews, etc.
In this Article, I offer the first comprehensive analysis of “criminal violations,” the other half of cases where people violate their supervision by committing new crimes. Based on my original empirical study of U.S. Sentencing Commission data and examination of federal caselaw, I draw three conclusions. First, despite the popular focus on technical violations, criminal violations are the primary drivers of punishment via revocation of supervised release, accounting for at least two-thirds of the total prison time imposed. Second, while technical violations punish non- criminal behavior, criminal violations drive punishment by increasing sentences for criminal convictions and making punishing crimes easier. Third, the immigration crime of illegal reentry accounts for as many as one-third of all revocations for felony violations, revealing that supervised release is no longer just a program of surveillance or support, but also has become a tool of immigration enforcement.
After describing these features of federal supervised release, I critique the law of revocation by arguing that punishing criminal violations inflicts unfair double punishment and erodes constitutional rights. Instead, when defendants on supervised release commit new crimes, prosecution without revocation is a better and fairer way to punish them. The law of revocation opens an exception to the ordinary rules of criminal prosecution, which the federal government has generalized into a powerful engine of imprisonment.
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