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Why Supervised Release Should Be Abolished

An element of federal sentencing was raised to a rare level of public awareness,and scrutiny, with the commutation of the prison term portion of the sentencegiven to Scooter Libby. Suddenly, this normally ignored (and usually misstated bythe press) element of federal sentencing is causing the Court and government

unease and confusion, in understanding how, if, and when it applies.

Under current federal sentencing procedures, people are subject to, and usuallygiven, 3 separate elements of punishment as part of their sentence for eachcount they are convicted of (violating double jeopardy), namely a prisonsentence, a monetary fine, and something called supervised release. While Bushcommuted Libby's prison term, and Libby then (allegedly) paid the imposed$250,000 fine, the remaining supervised release element of his sentence hasbecome a quandary for the sentencing court, and U.S. Attorney, to assess, andagree on how to handle.

Supervised release was created from the Sentencing Reform Act (SRA) of 1984,which created the federal Sentencing Guidelines, and ended the federal system ofparole and created this new thing called supervised release. It was enacted in1987, and then became part of federal sentences imposed by federal judges.

But supervised release is patently unconstitutional; specifically it violates the FifthAmendment's double jeopardy clause (nor shall any person be subject for thesame offense to be twice put in jeopardy of life and limb) and due processclause (nor be deprived of life, liberty, or property without due process of law).

Under the U.S. Constitution, all people (not just citizens) are protected from being

subject (by the Government) to multiple punishments for the same offense, asestablished by the aforementioned double jeopardy clause. Before the SRA, aperson sentenced to federal prison, after serving a specified length of the prisonterm, was eligible for parole/probation. The grant of parole was a privilege,allowing a prisoner to serve the remainder of their prison term outside of prisonunder the supervision of a parole officer. If the parole officer asserted to thesentencing judge the person violated conditions of parole, the judge could choose(or not) to order the person back to prison to serve out the remainder (or part) ofthe original prison sentence, or until eligible for parole again. However, uponcompletion of the full imposed prison term, whether served in prison and/or underprobation, the person would then be released from custody, and be free, no longer

subject to government control, supervision, or other oversight.

Supervised release, as the name explicitly implies, creates an (unconstitutional)system which allows the government to continue to supervise (control) peopleAFTER they have completed their full prison sentences. It also allows for the re-imprisonment of people, in many cases for periods longer than their originalprison terms (and the government claims even indefinitely), for actions that aren'teven crimes (drinking alcohol, associating with certain people, not working, etc).People who have short sentences (12-18 months) are routinely given terms of

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supervised release twice their prison terms (3 years). This means people can beput back in prison for a longer time (without being convicted of another crime) foran alleged violation of supervised release than their original criminal conviction.

To be clear, supervised release, ONLY takes affect, AFTER a person has servedtheir full federal prison term AND then released from prison. Again, this is different

from parole/probation (which is still the system used by the states), which onlyexposes people to a one time period of the loss of liberty. With the creation ofsupervised release, people are now exposed to a second term of restrictions ontheir liberty and placed in jeopardy of being imprisoned again, based on onlyone conviction of a crime, in clear violation of the double jeopardy clause.

Also, the administration of supervised release violates the due process clause,because people can be re-imprisoned for non-criminal conduct other people canfreely engage in. Under supervised release, people are routinely restricted fromengaging in non-criminal activities, like drinking alcohol. If found to have violatedthis otherwise completely legal activity, they could be put back in prison to serve

a new prison term. Even now, if the same person illegally consumed alcohol whileserving the original federal prison term, the term could not be increased (thoughpotentially not decreased via 'good time'). Additionally under the former federalparole system, a violation of parole could also not increase the prison term, itcould just make the person serve more of the term inside of prison, than outside.

Also, now some courts have interpreted that supervised release can be reimposedon people who were put in prison for violations of their original supervisedrelease, creating a revolving door of continuous control by the courts. And moreinsidious, the government asserts it can indefinitely keep people in prison aftertheir prisons terms have expired, if they don't first agree to adhere to terms of

supervised release.

But Libby's commutation has unintentionally exposed another legal flaw in thestructure of supervised release (though most media still erroneously refer to itas parole or probation). Since supervised release ONLY takes affect AFTER a fullprison term is (first) completed, does supervised release have any legal meaning,and can it be imposed or enforced, on a person who hasn't (first) completed afederal prison sentence? That is the question Libby's sentencing Judge ReggieWalton posed to the government. So, it looks like Scooter Libby is completely freenow, outside the control of the Court and additional supervision.

Of course, Libby is an aberration of the system, never an intended victim. It wasnot intended to generally apply to people of his race, gender, and class.

Supervised release emanated from the racist/fascist mindset of a determinedband of primarily southern congressmen, facing the social emergence and powerof Blacks, Gays, and Women from the struggles of the 60's and 70's, taking yearsin the making, to use the criminalization apparatus of government to controlpeople in a manner the Constitution explicitly denies. The Constitution gives theGovernment NO POWER to supervise people. Our Government is not supposed

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to be the Masters of We The People, rather, it's supposed to be Our Servant. Itcan punish people for violating (valid) laws ONCE, but not concoct repetitivedenials of people's liberty. And liberty is the most important freedom wehave, for without it we can exercise no others.

So supervised release has served its intended purpose to keep as many people as

possible in prison, and under the control of government for as long as possible,most of whom are Black, Brown, and poor. At any one time, reports stateanywhere from 20-35% of people are in federal prison because of violations ofsupervised release, overcrowding the prisons for non-criminal acts after releasefrom prison (who were mostly there initially for non-violent offenses in the firstplace), people who otherwise would have been free prior to the SRA. And since1980, when about 20,000 people were federally imprisoned, now there are about120,000, and minimally 5-6 times more under supervised release outside of prison(most for a minimum of 3 years).

But for the supporters of these documented oppressive sentencing policies, which

have nothing to do with crime abatement, or the interests of justice, even thesepolicies are not harsh enough. In fact they are moving to, in a de facto manner,create a societal structure as close to de jure slavery (and fascism) as they canget away with. And mostly, everyone else is sitting on the sidelines letting ithappen, oblivious to the devious details of how it's being done.

Supervised release should be abolished and replaced with an enlightened andhumane system of parole/probation. Instead of trying to increase the (world'shighest) number of people in prison and under supervision/control by theGovernment, we must work to make the protections of the Constitution real, andpromote the idea that liberty is something that is an inalienable Right All People

possess, and not to be abused and denied by a small group of people whocurrently control the apparatus of Government.

Supervised release must end as an element of federal sentencing, and peoplewho truly believe in Freedom and Justice should become involved in eliminatingthis unconstitutional element of federal sentencing.