Involvement of the federal court in the supervised discharge

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The study points to an important role for the judiciary in monitoring the re-entry of defendants after detention.

In most cases, the release of people from federal prison does not mean the end of their sentences. A federal criminal sentence usually includes the term “supervised release,” which the US Sentencing Commission calls a “unique type of postpartum surveillance that is monitored by federal district courts with the assistance of federal probation officers.” The supervised release is designed to assist those who have served a prison term in their effective reintegration or “re-entry” into the community.

Judges are not always actively involved in overseeing oversight. Rather, U.S. parole officers play the dominant role in overseeing individuals who are released under supervision. Judges tend to become more involved only when a supervisee does not adhere to the terms of the supervision. As a result, judges may miss the opportunity to meaningfully assist with re-entry and ensure that necessary services such as drug treatment, psychological counseling, and housing and employment assistance are provided.

Over the past five years or more, my chamber staff and I have developed a more active and engaging approach to supervised discharge. The practice includes regular supervised release hearings designed to help ensure the supervisees are successful and avoid further negative involvement in the criminal justice system. Importantly, this practice also includes the early termination of supervised discharge for those who have shown they no longer need care.

We worked with 152 supervisees from January 1, 2016 to December 31, 2020 and recently produced a report describing the re-entry results for the 152 supervisees in our “study population”. There was no control group in our study.

We have concluded that greater involvement of the judiciary in supervised release can usefully help supervisees re-enter successfully, as measured by factors such as fewer criminal arrests and serious probation violations. Four results of our modest study are offered here for discussion and as a guide for those interested.

First, judges can absolutely pave the way for re-entry by holding supervised release hearings with relevant stakeholders, which begin shortly after the supervisees are released from prison. The goals of these hearings are active listening, encouragement and support in psychosocial counseling and drug treatment programs, housing and employment. The number of hearings is determined by the court with the involvement of the parties and depends on how well the supervisee is able to meet the “conditions” (or requirements) of supervision and otherwise prepare for re-entry.

At the hearings, the supervisee’s probation officer usually introduces an update on central supervision issues (and often presents a short written status report before the hearing). The supervisee speaks next, bringing everyone up to date. The views of the therapist and drug counselor are included because we believe their input is invaluable. Defense lawyers and prosecutors generally have less say after their choice than in most other criminal proceedings, but they are still heavily involved. The court proactively participates in each hearing, offering support and (hopefully constructive) criticism, and suggesting goals and options. The hearings are public and include testimony, exhibits, and a written transcript.

The graph below illustrates the number of hearings held in each year of the five-year study period (2016-2020) examined in our report.

Second, the most important resources during supervision are often regular psychological counseling and substance abuse treatment. In this context, it can be helpful for the court to determine and prescribe participation in psychosocial counseling and drug treatment as “special conditions” of supervision when convicted, provided that these conditions are justified in accordance with Section 3583 (d) of the Federal Constitutional Act. For example, the sentencing sentence (which contains the details of the defendant’s verdict) could include: “During the term of the supervised release, the defendant must attend weekly individual and group therapeutic counseling by a licensed therapist. . . . The defendant should also participate in a drug abuse program approved by the US Probation Office. ”The court has the power to require special conditions under Section 3583.

The graphic below shows that from 2016 to 2020, 123 supervisees – or a full 80 percent of our study population – took part in therapeutic counseling and drug abuse treatment. Sixteen supervisees (11 percent) only participated in therapeutic counseling and five supervisees (3 percent) only participated in drug abuse treatment.

Two recent supervised discharge hearings revealed the importance of therapy:

  • Oversee: “I think if I had been left to my own devices I would be dead now. I’m one of those addicts who don’t know how to quit. . . . I came in here broken, feeling hopeless, very alone, isolated. . . Addiction will do that. And getting into treatment and being held accountable through random drug tests and by reporting on your honors and attending 12-step meetings, all of the things that I did, my therapist, my psychiatrist, gave me a community of Support I was completely lacking, and here I am today. I couldn’t have imagined that I would be here today in this position as a completely different person. I just come to the conclusion that I am very grateful. “
  • Supervise therapist: “The supervisee impressed me very much. It’s been an amazing journey. See you weekly. . . . There was a tremendous amount of development and growing up that had to take place. . . I was quite impressed with the hard work and dedication he put into considering all of these things, working hard in therapy, and trying hard to gain skills to deal with it. . . his long history of drug abuse. And we’ve worked really hard to give him skills-based and dynamics-based therapy so he can learn to overcome the hurdles that come his way. And to be honest, I mean, it was surprising and impressive how well he did it. “

Third, the importance of ending the supervised discharge early cannot be overstated. Section 3583 empowers the court to end the custody prematurely, provided that the person under supervision has completed one year of custody and the court is “convinced that such an action is justified by the conduct of the released defendant and in the interests of justice”. Early termination is an important incentive and a meaningful reward. It is often a welcome counterpoint to the length and gravity of previous incarceration.

As the following graphic shows, we terminated 34 percent of our 152 supervisees early. A 2010 statewide data study compiled by the US Courts Administration Bureau found early termination of 12 percent of the study population of 35,724 supervisees.

Fourth, judicial oversight can help reduce relapses. As the following graph shows, 17.8 percent of our 152 supervisees were arrested for a crime during supervision. A nationwide study by the administrative office from 2015 showed that 27.7 percent of 454,223 supervisees were arrested during supervision for a “serious offense” (synonymous with a crime).

The data on parole violations are similarly encouraging. A probation officer can file a probation violation against supervisees who are arrested for a crime or who fail to adhere to other terms of their supervision, such as regularly attending psychosocial counseling and drug treatment. As shown in the table below, 124 out of 302 violations of our supervisees (or 41 percent) have been dismissed by the court and 127 violations (or 42 percent) are pending. Relatively few of the 302 violations – 51 (or 17 percent) – led the court to revoke the supervision of the supervisee.

And there have been relatively few serious parole violations filed against our study population of supervisees. That is, 9 percent of the violations were class A violations (considered the most serious category, which includes “violent crimes,” “controlled substance offenses,” and “violations punishable by imprisonment of more than twenty years.” Sixteen Percent were class B violations (the second most serious category, which includes offenses punishable by a sentence of more than a year); the overwhelming majority of violations – 75 percent – were grade C violations (considered the least serious category, often including the supervisee’s failure to attend substance abuse and mental health treatment).

In a 2020 statewide study conducted by the US Sentencing Commission of 82,384 supervisees, 13.6 percent of violations were Class A violations; 31.5 percent were class B violations; and 54.9 percent were class C violations.

Most of the supervisees in our study population also found employment. It should be noted that “employment” is broadly defined as: “any work for pay or gain. . . . This includes all part-time and temporary workers as well as regular full-time employment, year-round employment. ”The following graphic shows the percentage of supervisees who were either employed or had received employment in a calendar year.

I fully acknowledge the differences, including study population size, between and between our study population, the Administration Office’s two study populations, and the aforementioned US Sentencing Commission study population. Still, I agree with Professor Nora Demleitner of Washington and Lee University School of Law, who reviewed our study and concluded that our data “is quite encouraging when it comes to relapses and re-incarceration.”

The active participation of the judiciary in the supervised release is a challenge. It’s also extremely rewarding and vital. Professor Tina Maschi of Fordham University’s Graduate School of Social Service, whose work focuses on reintegration and who also reviewed our study, strongly supports the involvement of the judiciary in supervised discharge – as I do. Professor Maschi said the judicial involvement in the supervised release “contains a much-needed holistic portrait of the prospects of the supervisee, the probation officer, and other related professionals. . . promote successful reintegration into society. It also has the random effect of reducing crime and relapses. “

Richard M. Berman

Judge Richard M. Berman has been US District Judge for the South District of New York since November 1998 and Senior Judge since 2011.

This article is based on Judge Berman’s Supervised Publication Report published April 6, 2021.



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