The Trap Chronicles, Vol. 2: A call to reconsider 'risk' in federal supervised release

Abstract

Correctional supervision is one of the biggest traps in the criminal justice system. The current system involves a complicated web of vague statutes and amorphous rules set on shaky ideological ground. At last count, close to 4 million people, or 1 in 66, were under some form of state or federal supervision in the United States. This is an improvement from 1 in 31. And like most matters in criminal justice, race plays a correlative role with Black adults four times more likely as their White counterparts to be under correctional control and close to ten percent of the African American population under some form of supervision. While the War on Drugs is infamous for the institution of harsh sentences for drug offenders and the consequent mass incarceration of millions in American prisons, scant attention is paid in the legal academy to the battles waged in the nether land of correctional supervision. The irony is that the biggest explosion during the War was not in the prisons. Instead, it was in post-imprisonment supervision, a massive component of the federal carceral state, where the most pernicious bombs were detonated. The rules and regulations enacted during the War created a post-imprisonment structure that continues to keep prisoners hostage after release – under continued correctional surveillance with the threat of re-incarceration constantly looming. As we enter a new era in criminal justice, it is critical that we include correctional supervision in our reform discussions. This Article hopes to encourage a fresh socio-legal frame to examine the current rules and policies. More specifically, this paper aims to inform decision-makers about the structural condition of supervised release and offer alternatives to current models and practices. In an era of criminal justice reform, legal academics have an opportunity to make a significant contribution by reviewing current rules and offering solutions based on sound theory and recent data. Evidence of this type often comes from other disciplines, such as criminology, sociology, and psychology, and should be considered by decision-makers when crafting rules and making policy choices. Such interdisciplinary cross pollination allows for the creation of legal rules based on comprehensive and often more current data as opposed to policies based on wartime theory and dated models of supervision. In doing so, we should reflect on the theoretical foundations of supervision with an aim towards creating a firmer frame and improve our practices. This paper focuses solely on the system of federal supervised release. The decision to concentrate on this form of correctional supervision was chosen for a myriad of reasons. First, federal legislation often prompts state legislation and regularly serves as the legislative model at the state and local levels. This is particularly true of criminal justice policy over the past forty years, and specifically with origin and evolution of supervision in America. And although much of the discussion applies to supervision practices in a general sense, the need to focus on one specific supervision approach was critical to an extensive case study examination. Second, federal supervised release is now the dominant form of federal supervision. In the federal system, probation and supervised release are governed by the same statutory and regulatory rules and share the same purpose (public safety and rehabilitation) but are imposed for different reasons. At the federal level, probation is currently a criminal sentence reserved for low level offenders, while supervised release is imposed in addition to a prison sentence. During the War on Drugs, the imposition of probation decreased significantly, while supervised release was imposed regularly. Finally, I selected federal supervised release because my reentry clinic works with individuals on federal supervised release. This paper is dedicated to them.