Rethinking Supervised Release Discovery with an Eye Toward Real “Fundamental Fairness”

Abstract

Supervised release revocation hearings result in the imprisonment of thousands of people per year. But unlike people facing substantive charges, those confronting revocation are not entitled to robust discovery protections. Instead, courts across the country have interpreted the U.S. Supreme Court’s decision in Morrisey v. Brewer and Federal Rule of Criminal Procedure 32.1 to require the defense receive comparatively little and sometimes exclude plainly exculpatory and mitigating evidence from their terms entirely. The core of the problem centers around the fact that the investigating agency in supervised release cases—the U.S. Probation Office—is not considered an agent of the prosecution, but rather an arm of the Court. Federal defense lawyers across the country lament the difficulties that limited discovery production creates in defending against revocation and how fundamentally unfair the process can become without guaranteed access to exculpatory and mitigating evidence. Reform is needed. And as the relatively new supervised-release discovery practices of the U.S. District Court for the Western District of North Carolina demonstrate, reform is possible.