Tag Archives: supervised release

Supervised Release Revocation and Conditions: The Gifts That Keep On Giving – Update for April 13, 2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

THE GOVT GETS ITS WAY ON SUPERVISED RELEASE

The Prison Policy Initiative reported last week that 3.6 million people – twice as many as in federal and state prisons and jails – are on probation, supervised release or parole. In the federal system, supervised release – the federal version of post-incarceration parole – is so pervasive that Congress conditioned getting a 12-month sentence reduction under 18 USC § 3624(g)(3) to the inmate having supervised release as part of his sentence.

So it’s pervasive if not popular. And while how the feds manage supervised release is not very important to people who are still currently locked up, it will be very soon.

Two Circuit decisions in the past week addressed two important details of supervised release, how far a court may go in imposing conditions that govern a person on supervised release and how a court can impose if someone violates those conditions.

Joe Castellano did 12 years transporting child sexual abuse material in violation of 18 USC § 2252A(a)(1). After he got out, he started a lifetime term supervised release with special conditions, one of which prohibited his from accessing or possessing “any pornographic material or pictures displaying nudity or any magazines using juvenile models or pictures of juveniles.”

He violated this condition within weeks of getting out by possessing legal, adult porn, and was sent back to prison for 9 months. After that return, he quickly violated the adult porn ban again, and went back for another 20 months. After he did that time, he violated the adult porn ban a third time and got sent back for another 24 months.

Joe tried to get the ban dropped for adult porn, arguing that the condition was vague, overbroad and didn’t advance the goals of supervision. The district court refused.  Joe appealed, and the 4th Circuit threw the condition out because it wasn’t supported by any “individualized evidence to meet 18 USC § 3583(d)’s ‘reasonably related’ standard” and that “the government didn’t offer any individualized evidence, like the testimony from a witness responsible for Joe’s treatment.”

Joe then got caught having contact with minors, and the district court sent him back to prison for 12 months. Joe then consented to a new condition that banned him from looking at any ‘visual depiction’ of ‘sexually explicit conduct,’ a ban that did not include legal porn. Joe violated that one in two months.

The government then asked the district court to impose a special condition prohibiting Joe’s access to any pornography (even legal), in any form. The government called Joe’s sex offender treatment provider as a witness. She testified in detail that Joe’s use of even legal porn “are barriers to him to be able to make any progress in treatment.” She recommended the total porn ban be reinstated, and the district court agreed.

Joe appealed, but last week, the 4th Circuit upheld the district court. The Circuit ruled that the treatment provider gave “an individualized assessment for why a legal pornography restriction was necessary… [b]ased on six years of clinical observation and treatment.” The 4th held that “[t]he district court relied on individualized evidence, not categorical reasoning,” and for that reason the modification was upheld.

Meanwhile, in the 8th Circuit, Jessie Farmer – who had served the statutory maximum sentence for a drug offense – was sent back to prison for 12 months for violating a supervised release condition. Jessie argued that the 12-month additional term – required by 18 USC § 3583(g) where the defendant refuses to comply with drug testing or tests positive for illegal drugs more than three times in a year – required a jury finding beyond a reasonable doubt to extend prison time beyond the statutory maximum he had already served.

The 8th Circuit rejected Jessie’s claim, holding that a badly split Supreme Court decision in the 2019 United States v. Haymond case did not support his position. In Haymond, a provision of § 3583 requiring a court to revoke supervised release and impose a mandatory 5-year term for a new sex offense was declared unconstitutional under Apprendi v. New Jersey. But here, supervised release was revoked not for a new federal offense (that would require a jury and reasonable-doubt standard), but for simple drug testing failures. The mandatory additional prison term could be skipped by the judge under § 3583(d), and if a prison term was imposed, the judge could select how long that term could be. The fact Jessie had already served the statutory max for his underlying offense simply did not matter.

Prison Policy Initiative, Punishment Beyond Prisons 2026: Incarceration and supervision by state (April 8, 2026)

United States v. Farmer, Case No. 25-1134, 2026 U.S.App. LEXIS 10371 (8th Cir. April 10, 2026)

United States v. Castellano, Case No. 25-4012, 2026 U.S.App. LEXIS 9822 (4th Cir. April 6, 2026)

~ Thomas L. Root

Courts Are Expected to Apply Supervised Release Policies, Not Create Them, 6th Circuit Says – Update for April 6, 2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

6th CIRCUIT SAYS NO TO ARBITRARY TIME ‘POLICIES’ ON SUPERVISED RELEASE TERMINATION

“When I use a word,” Humpty Dumpty told Alice in Through the Looking Glass, “it means just what I choose it to mean — neither more nor less.”

Under the supervised release statute – 18 USC § 3583 – a former prisoner on supervised release can apply to have his supervised release terminated after one year, no matter how long a period of supervised release he’s serving. Although the Sentencing Commission has said that district courts should favor early termination, there is an unfortunate history of district courts and probation officers adopting their own policies that hold the minimum time to be served on supervised release before early termination is what they say it is. No matter that § 3583(e) specifies early termination can be granted “after the expiration of one year of supervised release: to them, ‘one year’ may mean 18 months or two years or 50% or even – as one Probation Officer told me once –the judge she was working believed that everyone should serve their full supervised release term and not a day less.

The statute means what they choose it to mean. Humpty would be proud.

I have run into more than my share of probation officers and district judges who write their own blanket policies on when former prisoners can get off supervised release. It’s maddening that someone’s superlative history in prison and on supervised release means nothing stacked against their “policies.” And last week, the 6th Circuit said as much.

Guy Collins was sentenced to 240 months in 2010 for a methamphetamine offense. After the First Step Act passed, Guy’s sentence was cut to 180 months, with his judge finding that Guy’s “post-sentencing rehabilitation has been extensive, as evidenced by his [prison programming] report and the letter appended to his motion.” Guy was 56 years old at the time and “ha[d] by all accounts turned his life around,” the Court said.

After his release, Guy began an 8-year supervised release term. After a year, Guy moved for early termination of supervised release under 18 USC § 3583(e)(1). The district court denied the first motion despite holding that further supervision appeared “unnecessary.” Nonetheless, the court denied the motion, holding that “the seriousness of [Guy’s] offense—trafficking crack cocaine — and his extensive criminal history,” argued against early termination, and “noted that Congress had mandated a minimum supervision term of eight years for defendants similarly situated” to Guy.

Sixteen months later, Guy tried again. The Court denied him again, applauding Guy’s good conduct but noting that he“has still not completed half of his term of supervision. As Defendant’s counsel is aware, the Court, as a matter of custom, will not consider a defendant’s request for early termination until he has completed at least half of his term of supervision.”

Guy appealed, but then filed a third motion for early termination, which he called a “renewed” motion. He asked the District Court to rule it would grant his renewed motion for early termination of supervised release if it had jurisdiction to do so, that is, if the denial of the prior one wasn’t on appeal. The District Court refused the motions but emphasized that its 50% custom “is precisely that—a custom, not an unbending rule—and the Court applies it with deference and adherence to the individualized inquiry that must accompany any analysis under § 3553(a)’s factors.”

The 6th Circuit reversed the District Court’s denial of Guy’s motion, ruling that “district courts cannot employ a blanket rule requiring defendants to complete a certain proportion of their supervised-release term without conducting an individualized assessment of the relevant § 3553(a) factors,’ and that the district court therefore abused its discretion by failing to consider the relevant § 3553(a) factors in Guy’s case. The Circuit held that the District Court did ‘not explain how, if at all, the proportion of his supervised-release term that Guy has completed pertains to any relevant § 3553(a) consideration. Indeed, it gives no indication that the district court considered the relevant § 3553(a) sentencing factors.”

The 6th held that the

amount of time a defendant has served cannot be the sole animating force behind a court’s early-termination decision—the statute mandates that such decisions flow from individualized inquiries based on the relevant § 3553(a) factors. A blanket rule, or custom, is not individualized. But assuming arguendo that the proportion completed can be considered for its bearing on some relevant § 3553(a) factor(s), a district court would need to be explicit in drawing that connection for a particular defendant: The proportion standing alone is not a relevant consideration… Congress imposed a minimum time requirement of one year, and a court may not add to that time requirement without tying its decision to the relevant statutory factors.

In its last order, the District Court concluded that “the need to adequately deter criminal conduct and protect the public from further crimes” counseled against giving Guy early termination. The Circuit rejected this makeweight: “[T]his finding… directly contradicts the court’s earlier statement in the First Order [that further supervised release was unnecessary]… The district court never explained why it changed its mind. Nor did it offer any other § 3553(a) factor to which the proportion of the term completed is relevant.”

United States v. Collins, Case No. 25-5395, 2026 U.S.App. LEXIS 9438 (6th Cir. April 1, 2026)

~ Thomas L. Root

FSA Credits Not Redeemable for Supervised Release, 2nd Circuit Says – Update for April 2, 2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

TOO GOOD TO BE TRUE

More often than I like, prisoners seeking full use of their First Step Act time credits awarded under 18 USC § 3632(d) insist that if they can’t use them for halfway house/home confinement because there’s not enough time left on their sentence, they can apply them to shorten their time on supervised release.

Lately, they all point me to Rivera-Perez v. Stover, an unpublished District of Connecticut case in which the judge did exactly that: shortened a prisoner’s supervised release term because the Federal Bureau of Prisons had not allowed the inmate to use all of his FSA credits due to space limitations at the halfway house.

My granddaughter Helen loves unicorns. But no matter how hard she tries, she can’t wish them into existence. Last week, the 2nd Circuit said the same is true of using FSA credits to shorten supervised release.

Raul Rivera-Perez filed a 28 USC § 2241 petition for habeas corpus, arguing that the BOP miscalculated his FSA time credits and illegally prevented his transfer from prison to a halfway house. However, while his petition was pending, Raul was transferred to a halfway house, and the BOP thus argued that his petition was moot. The district court, on its own motion, decided that the FSA requires application of credits to reduce a prisoner’s term of supervised release, and it did so.

The BOP appealed.

The 2nd examined “the two critical sentences of § 3632(d)(4)(C): ‘Time credits earned . . . by prisoners… shall be applied toward time in prerelease custody or supervised release. The Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under section 3624(g), into prerelease custody or supervised release.’ ”

Raul claimed that the language meant that FSA credits had to be used to shorten supervised release. The BOP said it just meant that FSA credits could be applied to get Raul to supervised release more quickly by shortening his sentence.

The Circuit conceded that the statute was ambiguous. However, it ruled, “the context of the phrase ‘applied toward time in… supervised release’ resolves the ambiguity in favor of [the BOP’s] reading of the statute. Recall that the contested phrase immediately precedes the following sentence: ‘The Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under § 3624(g), into prerelease custody or supervised release.’ 18 USC § 3632(d)(4)(C). We conclude that this second sentence confirms [the BOP’s] reading of the statute because it unquestionably contemplates a transfer from prison to prerelease custody or supervised release, not a reduction of time spent in prerelease custody or a term of supervised release.”

Sorry, Helen. There are no unicorns. And FSA credits can’t shorten supervised release.

Rivera-Perez v. Stover, Case No. 25-149, 2026 U.S.App. LEXIS 8819 (2d Cir. March 26, 2026)

~ Thomas L. Root

On the Lam from Supervised Release Still Runs Out the Clock, SCOTUS Says – Update for March 30, 2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BEAT FEET

Isabel Rico has traveled a rocky road. Her federal drug trafficking sentence ended in 2018, but her 48-month supervised release term was revoked pretty quickly for some transgression not recounted in court records. She served two months in prison for that and, upon release, faced another 46 months of supervised release time.

Izzy did no better on that second supervised release stint. At some point, she decided to “beat feet,” moving without telling her Probation Officer and no longer bothering to make monthly visits to the Probation Office. Her disappearing act prompted the judge to issue a revocation warrant. But the warrant went unserved because Izzy could not be found. She thus became an “absconder.”

While wild and free, Izzy got picked up by local police for possession of drugs and fleeing the cops. When her federal Probation Officer finally caught up with her, Izzy was hauled into court for the revocation warrant.

The failure to report her new address was a mere Grade C supervised release violation, which would net her only 8 – 14 months of additional prison time. The fleeing offense likewise was just a Grade C violation. But the drug possession charge was a Grade A violation, with a Guidelines sentencing range of 33-36 months.

The rub: While Izzy was off the grid, that is, an “absconder,” her supervised release term expired. The fleeing and drug possession charges both happened after her supervised release ended. When the district court sentenced her to 16 months in prison for all three supervised release violations, Izzy argued that the fleeing and drug possession couldn’t count because they happened after her supervised release ended.

The district court disagreed. It held that while Izzy was in “absconder” status, her supervised release was tolled, that is, on hold. The clock only started running again when she was found and served with her revocation warrant.

Izzy appealed, but the 9th Circuit agreed with the district court in a terse opinion.

Last week, the Supreme Court reversed.

By an 8-1 decision, SCOTUS held that while the 9th Circuit may think absconding “tolls” supervised release, what it was really saying was that absconding automatically extended supervised release beyond the term imposed by the judge, something that Congress did not provide for in the Sentencing Reform Act’s carefully detailed scheme.

True tolling, the Supremes said, pauses the running of a term, but the 9th Circuit’s approach wants it both ways. It stops the running of supervised release but holds that the defendant is still under supervision and subject to punishment. This, Justice Gorsuch wrote for the 8-1 majority, is not a pause in the supervised release but rather an automatic extension of the term (and the defendant’s exposure to revocation).

The Court anchored its analysis in the clear statutory language of the Act. Under 18 USC 3624(e), supervised release begins “the day the person is released from imprisonment. Section 3583(b) provides that supervised releaselasts for a set term of years, depending on the underlying offense. SCOTUS found “no hint” of an abscondment-based automatic extension, observing that the risk of such a court-made rule would be to let supervised releaseterms exceed statutory maximums. What’s more, the supervised release statute provides for precisely crafted sanctions for violations. Adding an unlisted additional consequence — automatic term extension — would be an unauthorized judicial supplement, the Court ruled.

The supervised release statute allows a district court to extend a period of supervision, but only after a defendant receives a hearing. While a district court can hold a revocation hearing after the supervised release term expires, it can do so only for “matters arising before its expiration” and only if a warrant or summons was issued before expiration. Finally, the fact that the statute provides that the supervised release term “does not run” during imprisonment of 30 consecutive days or more in connection with a conviction, suggests that Congress intended to address when supervised release tolls and when it does not. “To our eyes,” Gorsuch wrote, “the absence of anything like the Ninth Circuit’s rule in all these exacting instructions is striking and strongly suggestive that the Ninth Circuit’s rule more nearly represents an adornment to Congress’s work than a permissible interpretation of it.

Rico suggests prosecutors and probation offices will need to ensure timely issuance of a warrant or summons before a term expires if they wish to preserve revocation jurisdiction for violations “arising before” expiration. That could lead to more supervised release violator warrants being issued in a post-sentencing regime that already “violates” too many people.

Rico v US, Case No. 24-1056, 2026 U.S. LEXIS 1490 (March 25, 2026)

~ Thomas L. Root

A Justice’s Plea for Sentence Fairness – Update for March 19, 2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

GORSUCH ARGUES FOR SUPERVISED RELEASE FAIRNESS

The Supreme Court last week denied review to Jaron Burnett, now serving a supervised release violation. Almost 20 years ago, Jaron pled guilty to an offense with a 10-year statutory maximum. He was sentenced to 105 months in prison, followed by 15 years of supervised release (either to assist him in reacclimating to society or to languish under the thumb of a heartless probation officer, depending on your point of view).

Six years after getting out, Jaron was charged with violating the terms of his supervised release (a little supervised release background here) and received a 13-month sentence. That new term brought his total time in prison to 118 months, just two fewer than the maximum Congress authorized for his underlying conviction. In 2022, Jaron got out and resumed supervised release.

In 2024, Jaron was violated again. This time, he argued that because prison time for the supervised release violation would take the total time for all of his sentence to more than the statutory maximum term of 120 months for the underlying offense, Jaron had a 6th Amendment right to have the government prove its case to a jury beyond a reasonable doubt.

The district court disagreed, applying a preponderance standard and finding that Jaron had committed some of the alleged violations. Based on that, the court sentenced him to 14 more months in prison, bringing his total term of incarceration to 132 months—12 more than the statutory maximum for his underlying crime. The court of appeals affirmed that result, and last week, the Supreme Court denied review.

Justice Neil Gorsuch disagreed. He wrote,

Mr. Burnett does not ask for much… All [he] claims is the right to have a jury decide any contested facts under the reasonable doubt standard where, as here, a court seeks to impose a sentence that will cause a defendant’s total time in prison to exceed the statutory maximum Congress has authorized for his underlying conviction.

I would have taken this case to consider that argument… [U]nder the logic of the decision below, defendants like these can effectively wind up losing for decades (and sometimes forever) the right to receive a federal jury trial to resolve charges against them under the reasonable doubt standard… Bypassing juries, trials, and the reasonable doubt standard in this way may hold some obvious advantages for prosecutors… The Court’s failure to grant review to address whether what happened to Mr. Burnett complies with th[e] 6th Amendment… is unfortunate. I can only hope we will take up another case like his soon—and that, in the meantime, lower courts will more carefully consider the 6th Amendment’s application in this context.”

Burnett v. United States, Case No. 25-5442, 2026 U.S. LEXIS 1196 (March 9, 2026)

~ Thomas L. Root

 

5th Circuit Knows Improper Delegation of Authority to Probation Officer When It Sees It – Update for January 16, 2026

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5th CIRCUIT SAYS IMPROPER DELEGATION OF COURT’S AUTHORITY “DEPENDS”

About 15 years ago, Brent Dubois got 151 months in federal prison for a drug trafficking offense. When he was released, he began a three-year term of supervised release, one condition of which was that he participate in a substance abuse program. The court authorized Brent’s probation officer to decide whether the program would be inpatient or outpatient.

The PO put him in an outpatient substance abuse program, but Brent turned out to be less than a model student. Almost immediately, he had difficulty staying enrolled, leading to several supervised release revocation petitions and different substance abuse programs.

The court tried in vain to adjust his conditions to foster success. When Brent’s probation officer filed a fourth petition for revocation in late 2024, Brent admitted that he had quit his latest substance abuse program and was using methamphetamine. The district court reluctantly sentenced him to ten months in prison followed by 32 months of supervised release, and again ordered that he “participate in a program (inpatient and/or outpatient) approved by the probation office for treatment of narcotic or drug or alcohol dependency…”

On appeal, Brent complained that allowing the probation officer to decide whether his substance abuse program should be inpatient or outpatient was an impermissible delegation of the court’s sentencing authority that violated Brent’s rights.

Last Monday, the 5th Circuit agreed.

A district court must always have “the final say on whether to impose a condition,” the Circuit ruled. While a “probation officer’s authority extends to the modality, intensity, and duration of a treatment condition, it ends when the condition involves a significant deprivation of liberty.” Confinement in an inpatient program implicates “significant liberty interests,” the 5th held, meaning that “the decision to place a defendant in inpatient treatment cannot be characterized as one of the managerial details that may be entrusted to probation officers.”

But there are exceptions. When the prison sentence is short, a sentencing court, with “relative clarity because supervision is to commence relatively soon,” can forecast which kind of treatment – inpatient or outpatient – will better suit a defendant.” While “the precise line dividing permissible and impermissible delegations may be unclear, our opinions conclusively establish (1) ten months is sufficient to show an impermissible delegation and (2) ten years is insufficient to make the same showing.”

Here, Brent’s revocation sentence was only ten months, “a sufficiently short sentence to demonstrate an impermissible delegation.” The Circuit set aside the delegation of authority to the probation officer.

Despite its self-congratulatory claim to having done so, the Circuit strained to harmonize two inconsistent Circuit precedents (Martinez and Medel-Guadalupe, issued the same day). One declared a delegation to decide substance abuse program decisions to the probation office was permissible and the other decided it was not.

The takeaway is that the 5th believes that a deprivation of liberty on supervised release without involvement of the sentencing court isn’t as much of a big deal when the defendant has been in prison for a long time first. The dividing line of what is too short a sentence and too long a sentence isn’t clear, but – like Justice Potter Stewart’s famous explanation of what is obscenity – the sentencing judge is expected to be able to say I “know it when I see it.”

The Supreme Court’s repeated emphasis that supervised release is not punishment but rather an aid to the defendant’s reintegration into the community should make deprivations of liberty on supervised release a bigger deal rather than a lesser one.  Just two months ago, Justice Jackson asked during an oral argument (at page 4) whether

isn’t the whole — the reason why supervised release is sort of fundamentally different than parole or — or probation or imprisonment is because it’s not imposed for punishment. It’s supposed to be about helping this person reintegrate into society…

That suggests that the standard adopted by the 5th Circuit – that is, ‘it depends on how long you’ve been locked up’ – is not very defensible.

United States v. Dubois, Case No. 24-11046, 2026 U.S. App. LEXIS 831 (5th Cir. Jan. 13, 2026)

Rico v. United States, Case No. 24-1056, Oral Argument Transcript

United States v. Martinez, 987 F.3d 432 (5th Cir. 2021)

United States v. Medel-Guadalupe, 987 F.3d 424 (5th Cir. 2021)

Jacobellis v. Ohio, 378 U.S. 184 (1964)

~ Thomas L. Root

Prison Fellowship Backs Safer Supervision Bill – Update for November 28, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

PRISON FELLOWSHIP THROWS SUPPORT TO SAFER SUPERVISION ACT

(And, no, I am not even going to comment in passing about the President’s annual turkey-pardoning spectacle last Tuesday, which President Trump managed to make even more cringeworthy than normal by using the occasion to take yet another swipe at former President Biden).

Prison Fellowship, the nation’s largest faith-based nonprofit serving currently and formerly incarcerated people, announced last week that its staffers –including 18 former prisoners – will blitz congressional offices to encourage lawmakers to support the Safer Supervision Act (S. 3077 and H.R. 5883).

The legislation aims to modernize federal supervised release by requiring courts to make individualized determinations at sentencing whether supervision is appropriate and allowing FTCs – earned time credits during incarceration – to be applied toward conditional release.

Supervised release has become almost universal in federal sentencing. In 2024, it was imposed in nearly 99% of cases involving black defendants, 98% for white defendants, and 83% for Hispanic defendants. The average term of supervised release in 2024 was 47 months, following an average prison term of just over five years.

Senator Mike Lee (R-UT) introduced the Senate version and Representative Laurel Lee (R-FL) – no relation to Mike – introduced the House bill. Both bills have Democratic Party co-sponsors.

S. 3077, Safer Supervision Act

H.R. 5883, Safer Supervision Act

Daily Reflector, Prison Fellowship Urges Congress To Pass Safer Supervision Act With Day of Action on Capitol Hill (November 18, 2025)

~ Thomas L. Root

Congress May Again Try for Supervised Release Reform – Update for November 13, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SUPERVISED RELEASE BILL INTRODUCED IN SENATE AND HOUSE

The government may only now be reopening, but the business of Congress has ground on nonetheless. Last week, the Safer Supervision Act – intended to clean up supervised release – was introduced simultaneously in the Senate (S. 3077) and the House (H.R. 5883).

The bills would lock in some changes to the Guidelines that just became effective at the beginning of this month – such as guiding the courts to impose supervised release only on defendants who need it – and creating a presumption that supervised release should terminate early unless there’s a compelling reason to continue it. Beyond that, the bill would make appointed counsel available to people seeking early termination and let courts overlook minor supervised release R violations such as drug possession and use.

Sen Mike Lee (R-UT) introduced the Senate version and Representative Laurel Lee (R-FL) – no relation to the Senator – introduced the House bill. Both bills have Democrat co-sponsors.

About 110,000 people are currently on federal supervised release, about 70% of the total BOP population. Probation officers can have caseloads of over 100 people. The Administrative Office of U.S. Courts has explained that “excessive correctional intervention for low-risk defendants may increase the probability of recidivism by disrupting prosocial activities and exposing defendants to antisocial associates.”

This is not the Safer Supervision Act’s first rodeo. The same bill was introduced in the Senate in 2022 (117th Congress) and in both the Senate and House in 2023 (118th Congress), but did not come up for a vote before those Congresses ended.

The current version is supported by both law enforcement and prison reform groups, including the Conservative Political Action Conference, Federal Law Enforcement Officers Association, Major Cities Chiefs Association, National District Attorneys Association, Right on Crime, Americans for Prosperity, Faith and Freedom, Prison Fellowship, R Street Institute, Texas Public Policy Foundation, and REFORM. The measure has been introduced early enough in the life of the current Congress, which does not end until January 2, 2027, that it may stand a chance of passage.

S. 3077, Safer Supervision Act

H.R. 5883, Safer Supervision Act

Reason, Federal Supervised Release Is a Wasteful Mess. A Bipartisan Bill in Congress Is Trying To Fix That. (June 4, 2024)

~ Thomas L. Root

SCOTUS Skeptical About Fugitive Tolling of Supervised Release – Update for November 10, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

THE FUGITIVE

The Supreme Court heard oral argument last week on whether people who flee from supervised release can claim that the term of their supervised release nevertheless continued and expired while they were a fugitive. If the term of supervision can expire while a defendant is a fugitive, and a doctrine called fugitive tolling does not apply to prevent that expiration, then a court could not revoke supervised release for violations of the conditions of supervision after the term’s expiration.

[Explainer:  Supervised release is a period after the defendant is released from prison during which he or she is subject to the supervision of a probation officer and must comply with a long list of standard and special conditions. Violation of the terms of supervised release may result in the imposition of more restrictions, the lengthening of the supervised release term, or even being sent back to prison].

The doctrine, called fugitive tolling, suspends the running of supervised release while the defendant is on the lam. Without fugitive tolling, a district court would lack the authority to revoke supervised release for violations that weren’t charged until after the term of supervision ended.

The justices struggled with how the Dept of Justice scenario aligned with the law and congressional intent over federal court jurisdiction and sentencing on such matters.

The underlying issue stems from the case of Isabel Rico. She lost touch with her probation officer during her 4-year supervised-release term stemming from a drug trafficking conviction, who decided that she had absconded. While she was out of touch, she was convicted by state authorities for evading the police, driving without a license and possessing drug paraphernalia.

She wasn’t arrested until well after the expiration of her supervised release term. The government charged her with two minor violations that occurred during her term, as well as for committing the crimes of evading, no license and drug paraphernalia (which occurred after her supervised release term ended). Isabel objected that the district court lacked jurisdiction to consider the 2022 drug-related offense as a supervised-release violation because her term of supervised release had expired in June 2021.

The government responded that the clock on Isabel’s supervised release term was paused when she absconded in May 2018, with about three years remaining, and did not resume until she was apprehended in January 2023 – meaning that she remained on supervised release when she committed the 2022 state offenses. Isabel argued that the “fugitive tolling” doctrine on which the government relied was inapplicable in the context of supervised release.

It was a big deal because the only violations she committed during the original supervised release term were low-grade ones carrying minor penalties. The 2022 violations were Grade A, however, carrying stiffer punishment under the Sentencing Guidelines.

At the oral argument, Justice Neil Gorsuch observed that the government has already gone to Congress in an effort to amend a section of the Sentencing Reform Act dealing with a violation of supervised release. “Congress has proven pretty solicitous in this area,” he said. But Congress never adopted any fugitive tolling provision, meaning that the government is now asking the Supreme Court to create one. “And the alternative is for us to create a fugitive tolling doctrine pretty [much out of] whole cloth… And so we’re going to have to come up with a whole common law doctrine here to supplement what [the law] already says.”

Justices Ketanji Brown Jackson and Sonia Sotomayor questioned whether the government’s theory of abscondment amounted to extending a period of punishment. “The traditional tolling is that the clock stops with respect to the obligation when you run away, and it picks up again when you’re found again,” Jackson said. “So it seems to me that what you’re actually asking for is an extension rule.”

Fugitive tolling is shaped by one central statutory provision, 18 USC 3583(i), which holds that if a court issues a warrant for a supervised release violation before the term expires, the court will continue to have jurisdiction to revoke supervision and impose punishment for those violations. Thus, if a defendant becomes a fugitive while on supervised release, and the probation officer files a petition to revoke before the term ends, fugitive tolling is unnecessary to revoke the defendant’s term of supervision.

Section 3583(i) gives the court authority to revoke supervision if the defendant becomes a fugitive. A court would not have to rely on any further conduct by the defendant, such as the commission of a new crime, to revoke supervised release. And when the court turns to the appropriate sentence for the revocation, it could simply take into account all of the defendant’s conduct, including new crimes committed after the expiration of the term of supervised release.

The case will be decided by the end of June 2026.

SCOTUSBlog, Court leans against applying fugitive tolling in federal supervised release (Nov 5, 2025)

Bloomberg Law, US Supreme Court Struggles With Dispute Over Supervised Release (Nov 3, 2025)

Rico v United States, Case No 24-1056 (argument held Nov 3, 2025)

~ Thomas L. Root

A New November… Same Old Laws – Update for November 3, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

NOVEMBER 1ST IS HERE… SO WHAT?

Quick quiz: What new laws benefitting inmates became effective on November 1st?

If you said ‘none,’ you win. Any other guess means you lose. If you said the ‘65% law went into effect,’ go to the back of the class.

In a few weeks, I will have been writing this newsletter every week for 10 years. And for the past 10 years, I have been waging a lonely campaign to stamp out the never-ending myth that Congress just passed (or is about to pass) a law that says that some or all federal offenders will only have to serve 65% of their sentences.

So I again repeat myself. There is NO 65% bill, 65% law or 65% anything. There is NO proposal to cut federal sentences so that everyone will only serve 65% of his or her time. There is NO bill, law, NO directive from Trump, and NO anything else that will give inmates extra time off because things were so bad during COVID.

Nothing. Nada. Zilch. Bupkis.

The genesis of the pernicious 65% rumor is a longing for the bad old days of parole, where federal prisoners served between one-third and two-thirds of their sentences. People seem to think that if parole – abolished in the Sentencing Reform Act of 1985 – only came back, that means that prisoners would only serve two-thirds of their current Sentencing Guidelines sentences. But back then, there were no Guidelines sentences. Courts would just hand out statutory sentences of 5 years, 10 years, 20 years, or whatever. The U.S. Parole Commission would then apply its own guidelines to determine where – between one-third and two-thirds of that time – you’d actually be locked up.

So that meant on a sentence with a statutory range of zero to five years, the court would usually give you five years. You would serve between 20 months and 40 months, but you wouldn’t know how long you’d serve until you finally had your parole hearing (in front of a board of non-judges who were notoriously pro-prosecution).

The Sentencing Guidelines moved that analysis to the front of the sentencing process and applied standards that were much more detailed and subject to due process protections.  The parole hearing process was opaque and – while it could be challenged with a 28 USC § 2241 habeas petition – was nearly bulletproof. I have seen both systems, and for all of its shortcomings, the Sentencing Guidelines are better for prisoners by an order of magnitude.

The 65% rumor gained legs because the late Rep. Sheila Jackson-Lee (D-TX) introduced a bill in every Congress since 2003 (except for the 116th in 2019) to increase 18 USC § 3624(b) good time from 15% to 35% for nonviolent offenders. None of those bills ever collected a single co-sponsor, had a committee hearing, or came up for a vote.

Congresswoman Jackson Lee died in June 2024 of pancreatic cancer. Her last effort at a 65%-type law was the Federal Prison Bureau Nonviolent Offender Relief Act of 2023 (H.R. 54), which called for nonviolent offenders who were at least 45 years old and had zero criminal history points and no incident reports to serve only 50% of their sentences. This bill, like her prior efforts, failed.

There is NO legislation pending in Congress – a legislative body unable to even keep the government open – that provides any sentencing relief for federal prisoners. I predict that there is no stomach in this Republican-controlled Congress to entertain any such legislation. If there were, President Trump – who has been pushing the trope that America is overrun with crime – is unlikely to sign it.

However, the 2025 Guidelines amendments did become effective on November 1st. The most significant is that for the first time in 37 years, departures have been eliminated (except for substantial assistance to the government, its own category with three decades of precedent on its frequent application). Another, a new drug amendment, expands the use of the mitigating role adjustment and caps the drug quantity table for such people at a maximum of 32. Another change encourages courts to impose supervised release only on people needing such structure and asks courts to terminate such supervised release early.

The supervised release change will benefit anyone subject to current or future supervised release. None of the other changes, however, is retroactive.

US Sentencing Commission, Amendments in Brief (October 31, 2025)

~ Thomas L. Root