Tuesday, February 16, 2021

Supervised release: no punitive imposition; no punitive revocation

Fun fact: When Congress first created supervised release in 1984, it did not provide district courts with authority to revoke supervision and return a person to prison. Congress assumed, apparently, that the threat of being held in contempt of court would ensure compliance with court-ordered conditions. This approach lasted a whole two years.

But that's not what this post is about. This post is a reminder of two simple statutory limits when it comes to imposing or revoking supervision: neither of these judicial acts can be taken for retributive purposes.

18 U.S.C. § 3583(c) directs a court considering the imposition of supervised release to consider most of the 18 U.S.C. § 3553(a) factors, but that list excludes factor (a)(2)(A). Which factor is that? It is the need for the sentence imposed "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense."

Likewise, 18 U.S.C. § 3583(e) directs a court considering the revocation of supervised release to consider the same list of factors, which, again, excludes factor (a)(2)(A).

What does this mean? It means that district courts are statutorily prohibited from imposing or revoking supervision for retributive purposes. And that's because the purpose of supervision is to help people, not to further punish them.

Want to know more? Check out Schuman, Jacob, Revocation and Retribution (February 15, 2021), Washington Law Review, forthcoming, available here. Learn the history and purpose of these provisions, and prepare to object to improperly based supervision and revocation orders.

 

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.