Defining Federal Probation Against Incarceration
A question clients often ask during consultations is how we convince Federal Judges to grant release orders for our clients. Our success rates are the same or better than those of defendants who hire expensive law firms to accomplish the same goal.
The simple answer comes from the United States Code and the very definition of supervision itself. Stick with this piece because dull statutes turn into clear, powerful answers Fast.
Understanding What Supervised Release is, and What it is not
Lets begin with the assumption that supervised release and incarceration are different. Parts of the same sentence, but different. This might seem obvious, but the meaning behind this fact might not be so obvious.
Take for instance the law that allows sentence reductions versus the law that authorizes early termination of supervision. Both come from Title 18 U.S. Code. Sentence reductions are made via §3582 requests, while supervised release early terminations are made via the very next section: §3583.
Basically, asking a judge to terminate a sentence of federal supervision early is simply a low-grade sentencing reduction. A judge can order the early termination, but what he is really doing is reducing the length of a supervised release sentence to “time served”. A judge can legally do this whenever a defendant has successfully completed more than one year on supervision.
The One BIG Difference
Making a decision on an incarceration sentence reduction (via §3582) requires a judge to consider all 9 of the same factors that they did during the original sentencing hearing. However – and the difference is IMPORTANT – making an early termination of supervision decision only considers 8 of these 9 factors.
Which one is missing? Glad you asked. Of the nine sentence factors contained in §3553(a), the one that is missing from supervised release is §§(a)(2)(A): “the need for the sentence imposed – to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;”
So taking this factor out, supervision isn’t part of punishment and making a determination on whether to let a defendant off of his/her supervision prior to it’s full term CANNOT reflect on the seriousness of the original offense, or be part of the punishment of that offense. Even the Supreme Court concluded this in the 2000 case of Johnson v. United States which calls supervised release the “decompression state” between incarceration and full release.
Putting it all together
All of this logic pieces together very nicely.
- If terminating supervised release is a mild form of re-sentencing; and,
- If supervised release can’t be considered part of the punishment for a crime; and,
- If the sentencing judge cannot consider the seriousness of the original crime; and,
- Supervised release is intended to be the “decompression state” between incarceration and full release;
…Then it doesn’t matter what your crime was or who you were at sentencing. If you are out of prison, with stable home, job, support structure, etc. then the decompression period is over and there is no further need for supervision. A judge can’t just keep a defendant on supervision because the crime of conviction was [fill-in-the-blank], and that is good news for our clients.
To learn all about getting off of federal probation early, visit PCR Consultants.
Federal Supervised Release