This is the third of a three-part series on early termination of supervised release. In our first part, the factors a judge must consider were introduced and discussed.
In the second part, policy factors a judge may consider, but are not binding on a judge’s decision, were introduced and discussed.
Here, we introduce three issues that are not well-known outside probation offices and courthouses. These affect early termination of supervised release and probation in the federal system.
First, be aware there is no “Silver Bullet” to ending federal probation early. There are no guarantees that anybody who applies early release will have their request granted. These decisions are 100% discretionary.
That decision, in all cases, is ultimately up to the presiding judge.1Specifically, an Article III judge within whatever district has jurisdiction over the particular case. There are, however, three little-known facts which may help those on supervision get an edge over other, similar applicants.
Secret #1: There are different levels of supervision, and Judges care!
The United States Probation Office (USPO) is the department with supervising authority over all local defendants serving a sentence of probation or supervised release. Each USPO maintains local policies that govern the intensity of supervision each supervisee is subject to.
“How long has it been since you’ve see your PO?”
If it has been longer than 90 days, chances are that you have been moved to a “minimal-risk” or “administrative” level of supervision. Asking a supervising probation officer which level of supervision is being administered in the case is a simple and easy way to find out if you have moved off their radar.
The lower the intensity-level of supervision, the more likely a judge will be to recognize that there is no need to keep supervision going at all
Secret #2: The Sentencing Commission is encouraging judges to terminate supervision terms!
That amendment did many different things. It changed the recommended ranges of supervision imposed on different felony classes, created new policy on imposing supervision on deportable aliens, and more importantly, introduced a new policy position on early termination of supervised release.
Here, for the first time in history, the Sentencing Commission began encouraging early termination of supervised release in “appropriate” cases. The new policy gives only one example of an appropriate case:
For example, the court may wish to consider early termination of supervised release if the defendant is an abuser of narcotics, other controlled substances, or alcohol who, while on supervised release, successfully completes a treatment program, thereby reducing the risk to the public from further crimes of the defendant. 2See U.S.S.G. §5D1.2 Application Note 5.
The justification here is that addiction recovery has been directly associated with lower re-offense rates in many peer-reviewed studies for decades. When the risk of re-offense is lowered (by some measurable metric), the Sentencing Commission believes that early termination is appropriate.
This example only focuses on two of the eight sentencing factors a court must consider when deciding whether or not to grant early release: Deterrence318 U.S.C. §3553(a)(2)(B) and Public Protection.418 U.S.C. §3553(a)(2)(C). However, this policy should be extrapolated to include any number of those factors, construing any measurable change in one or more of those factors as fitting the example of a case appropriate for early termination.
Secret #3: Violations do not Doom Early Termination Requests
In the newest version of judicial policy, probation officers are supposed to assume that their supervisees are appropriate for early termination after 18 months of active supervision if they meet six criteria.
In the section discussing that criteria, all violations of supervision are up for review, but policy states that only reported violations in the past 12-months are considered. If you had a violation early on, but have done great since then, you may still be recommended for early termination by your PO.
Read More About Ending Federal Probation Early
There are 14 other factors in statute and policy that guide judges to their decisions in ending federal probation early. Read more about these statutory factors and policy factors on the probation termination section of our blog.
Read our free, comprehensive e-book on terminating federal supervised release and probation by clicking here.