Revoking Federal Supervised Release

There is no parole, as such, in the federal sentencing system, but a sentence can include a period of “supervised release” following the term of incarceration. Under 18 U.S.C. § 3553(a)(2)(A), when imposing the original sentence, a federal judge can consider, among other factors, “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.” Can the judge consider that factor when deciding on a revocation of supervised release?

No, the Supreme Court decided today in Esteras v. United States, No. 23-7483. Why not? The simple answer is because Congress said so. The statute on supervised release, 18 U.S.C. § 3583(c), specifies the factors. Many of the factors used to set the initial sentence are included, but that one is conspicuously absent.

So why is there any difficulty at all?

Well, one of the original sentencing factors that Congress did direct be considered is § 3553(a)(1): “the nature and circumstances of the offense and the history and characteristics of the defendant.” So the judge can consider the nature of the original offense but not the need for sufficient punishment of that offense? That is what it says, and that is what the majority opinion tries to implement. Justice Alito, in dissent, says the opinion calls for “mind-bending exercises” on the part of the district judge.

The violation of the terms of supervised release may itself be a crime, perhaps a serious one. Can the judge consider the need for retribution for that? The majority opinion, in footnote 5, notes policy statements by the Sentence Commission but takes no position itself. That is enough for Justices Sotomayor and Jackson to not concur in that part of the opinion. Evidently if a releasee commits major crimes during the release period, they do not believe that just punishment should be considered in deciding how long to pull him back into prison. It seems entirely appropriate to me.

In other action, the court found no constitutional problem is allowing jurisdiction in civil suits against foreign terrorist organizations, as allowed by Promoting Security and Justice for Victims of Terrorism Act. That case is Fuld v. Palestine Liberation Organization, No. 24-20.