Understanding Supervised Release Violations
This week, the Fourth Circuit addressed supervised release violations in several unpublished opinions. (See here and here, for example.) As a result of those opinions and the recent news regarding Marion Barry’s tax problems, I thought now would be a good time for a brief discussion on the issue.
Most federal cases result in a plea of guilty. In preparation for that plea of guilty, defendants will review their plea agreements with their defense attorneys (at least they should). Those plea offers will often contain language that once a defendant is released from prison, he or she will be on supervised release, and a violation of the terms and conditions of that supervised release may result in an additional term of confinement.
This provision should be considered a warning to federal defendants. All too often an inmate is released from prison, thinking that he has done his time, only to find that he is in trouble again. This is not surprising, given the difficulty involved in readjusting to society upon release from imprisonment and the societal prejudice against those with criminal convictions.
Federal prosecutors are all too happy to pursue a violation of supervised release, especially in white collar criminal cases when the defendant may have initially received only a probationary sentence. As if the initial sentence was not harsh enough, Assistant US Attorneys now get a chance to prove that the defendant has committed a violation. And it’s fairly easy to do. Here’s how:
1) The defendant is believed to have violated a term of supervised release (either by committing another crime or simply failing to pay resitution or fines);
2) The Probation Officer contacts the prosecutor and notifies the Court of the alleged violation;
3) The Court schedules a hearing;
4) At the hearing, the prosecutor simply must prove the case by a preponderance of the evidence. Ordinarily, this is done in about 15 minutes by calling the Probation Officer to the witness stand.
It does not end there. The prosecutor is not satisfied with merely proving the violation. Now he is likely to argue for confinement pursuant to the Federal Sentencing Guidelines. Only an experienced criminal defense attorney, familiar with the federal system, can figure out the intricacies involved in determining a guideline range for a violation of supervised release. Also, an attorney familiar with the system is in a better position to negotiate with the Probation Officer and/or prosecutor to reduce or eliminate jail time.
A federal defendant must understand that his or her sentence includes that little provision in the plea agreement that refers to a term of supervised release.