Yet, beyond her prison sentence, Loughlin actually received a harsh penalty, making her a representative victim of our unfair and irrational criminal justice system. After prison, she’s sentenced to two years of supervised release, restricted by a long list of conditions and supervised by the probation office.
How did Aunt Becky end up on supervised release? She’s unlikely to reoffend, with no criminal record and no more children to sneak onto the rowing team. Her crime was born of greed and insecurity but doesn’t call out for rehabilitative treatment.
The answer is that in the federal criminal justice system, practically everyone is sentenced to supervised release. Judges impose supervised release on 99% of eligible defendants, for an average of 47 months, and more than 110,000 people are currently subject to supervised release. Conditions of supervision are broad and intrusive, including drug testing, house searches, computer restrictions, financial obligations, DNA collection, and more.
I saw these excesses firsthand working at the federal public defender’s office in Philadelphia. Judges sentenced my clients to years of supervised release, without even mentioning the burden this would impose on them. Prosecutors sought lengthy prison sentences for minor violations that were symptoms of mental illness or addiction. One of my clients was even charged with violating his supervised release for using medical marijuana in compliance with state law.
To be fair, supervision likely kept some out of my clients out of trouble. The probation office was rightly proud of the reentry court services it offered to a handful of defendants. Yet too often, supervised release became a trap, amplifying punishment and creating another opportunity for arbitrary imprisonment.
As a law professor, I now study the history of supervised release. I was surprised to discover that the system began in 1984 as a limited program, aimed at “eas[ing] the … transition” to the community. There was originally no way for judges to “revoke” supervised release because Congress did “not believe that a minor violation … should result in resentencing of the defendant.”
Yet over the next 30 years, Congress passed a series of punitive measures making supervised release harsher and more expansive. Today, one-third of all defendants are found in violation and sent back to prison for an average 11-month sentence. In 2019, judges revoked release in nearly 16,500 cases. Revocations are also racially disparate; Black defendants are less than one-quarter of the population under supervision, yet more than one-third of those found in violation.
Of course, Loughlin has money, family support, and a fierce team of attorneys. But for every Aunt Becky, there are thousands less privileged defendants on supervised release. Beyond the federal system, 4.5 million people are on state probation or parole, and 280,000 are incarcerated for violations. Black defendants are 3.5 times more likely to be serving community supervision, and 20%-40% more likely to be revoked. As Philadelphia District Attorney Larry Krasner declared, “mass supervision is a major driver of mass incarceration.”
So let’s close by turning from Aunt Becky to Grace from Michigan, a 15-year-old Black girl sentenced to probation in April for fighting with her mother and stealing a classmate’s cell phone. Her case earned headlines in May when a judge revoked her probation for failing to do her homework. Grace spent two-and-a-half-months in prison before an appeals court finally ordered her release.
As our country grapples with a legacy of race and wealth disparities in criminal justice, the best way to mitigate the harmfulness of community supervision is to shrink its footprint. Supervising fewer people for less time will save resources and reduce the burden on defendants. Locking up fewer violators will reduce incarceration rates. In our era of mass supervision, calls to rethink police and prisons should also include the probation office.