One Nation Under Supervision

Abstract

This special issue of the Federal Sentencing Reporter is dedicated to community supervision in the federal criminal justice system. Federal law recognizes two justifications for community supervision: public safety and rehabilitation. Yet these justifications are in tension, if not in conflict. Judges impose terms of supervision to protect the public and promote the defendant’s rehabilitation, but the government enforces the conditions of supervision through the threat of imprisonment, which officially serves only for retribution and public safety, not rehabilitation. In other words, federal law justifies supervision to ease the defendant’s return to the community, while the revocation mechanism subordinates the defendant’s interests to the safety of the public. One way to resolve this contradiction would be to return to Congress’s original plan for supervised release as a period of supervision without the possibility of revocation. Lawmakers should authorize sentencing judges to decide whether the supervision they impose will be “revocable,” in other words, whether violations will be punishable by imprisonment. Under this approach, judges could sentence particularly dangerous defendants to revocable terms of supervision if necessary to protect the public, but also would have the option of impose “irrevocable” terms on less-serious offenders. This sentence of truly non-coercive supervision would use the judge’s position at a nexus of the criminal justice system to coordinate the provision of reentry services to former prisoners, while also ensuring that the supervision itself never became a driver of imprisonment.