United States federal probation and supervised release are imposed at sentencing. The difference between probation and supervised release is that the former is imposed as a substitute for imprisonment, or in addition to home detention, while the latter is imposed in addition to imprisonment. Probation and supervised release are both administered by the U.S. Probation and Pretrial Services System. Federal probation has existed since 1909, while supervised release has only existed since 1987, when it replaced federal parole as a means for imposing supervision following release from prison.
More than 8 in 10 offenders sentenced to federal prison also undergo court-ordered supervised release. In 2015, approximately 115,000 offenders were serving supervised release, with these offenders spending an average of four years under supervision.
Some conditions of probation and supervised release, such as compliance with drug tests, are made mandatory by statute, while others are optional. Some terms are recommended by the United States Sentencing Guidelines for specific situations; for instance, a requirement of participation in a mental health program is recommended when "the court has reason to believe that the defendant is in need of psychological or psychiatric treatment." The judge has broad discretion in deciding what optional conditions to impose, as long as those conditions are reasonably related to the nature and circumstances of the offense and the history and characteristics of the defendant, the need for the sentence imposed to afford adequate deterrence to criminal conduct, the need to protect the public from further crimes of the defendant, the need to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; and involve no greater deprivation of liberty than is reasonably necessary for these purposes and are consistent with any pertinent policy statements issued by the United States Sentencing Commission. The possible length of supervision is specified by law, with recommendations for particular situations being provided by the sentencing guidelines. The length and conditions of supervision can be modified by the court after sentencing, although the defendant has a right to a hearing if changes are being proposed that would adversely affect them.
Violations of conditions of probation or supervised release can result in said revocations being reported to the court and a revocation hearing being held. In such hearings, the defendant has the right to be informed of the alleged violation, to retain counsel or to request that counsel be appointed, and to have a probable cause hearing. The defendant has the burden of establishing that if released pending further proceedings, they will not flee or pose a danger to any other person or the community. The law mandates revocation for some violations, such as possession of a controlled substance, possession of a firearm, or refusal to take a drug test. The statute specifies the possible consequences of revocation, and the sentencing guidelines establish grades of violations and a revocation table recommending various terms of imprisonment depending on the seriousness of the violation and the defendant's criminal history when they were originally sentenced.
Classes of offenses The class of offense determines what term of probation or supervised release may be imposed at sentencing, and the maximum term of imprisonment that may be imposed if supervised release is revoked. In the case of supervised release, if said maximum prison sentence for revocations has not yet been imposed, the defendant can be sentenced to a new term of supervised release to be served after the imprisonment. The PROTECT Act significantly changed the law concerning this.US v. Hampton, No. 10-10035, 5th Cir., Filed: January 6, 2011. Revised January 31, 2011.
Probation Probation as a substitute for imprisonment is authorized by the United States Code unless the offense is a Class A or Class B felony and the defendant is an individual; unless the offense is an offense for which probation has been expressly precluded; and unless the defendant is sentenced at the same time to a term of imprisonment for the same or a different offense that is not a petty crime. The exception is that a defendant convicted of a Class A or B felony can be granted probation if they render substantial assistance to authorities. For first-time domestic violence offenders, probation is mandatory if the convicted defendant is not sentenced to a term of imprisonment. The U.S. Sentencing Commission is authorized to further restriction probation. Probation is authorized by the sentencing guidelines if the applicable guideline range is in Zone A of the Sentencing Table; or if the applicable guideline range is in Zone B of the Sentencing Table and the court imposes a condition or combination of conditions requiring intermittent confinement, community confinement, or home detention as provided in subsection (c)(3) of §5C1.1 (Imposition of a Term of Imprisonment). In 1986, the law was made somewhat harsher when Congress eliminated that provision that "The liability of a defendant for any unexecuted fine or other punishment imposed as to which probation is granted shall be fully discharged by the fulfillment of the terms and conditions of probation."Act Nov. 10, 1986 Under the earlier probation statute (repealed 1987), a defendant convicted of violating a statute which provided for a mandatory minimum sentence could still be placed on probation, with their sentence suspended, or could be made eligible for immediate parole. Since United States v. Booker, the sentencing guidelines have become advisory but courts are nonetheless unable to impose probation in lieu of a mandatory minimum imposed by statute.
The grant of probation may be made on the court's own motion. Because the power of pardoning offenders is vested in the President of the United States only, probation is not considered a pardon of any kind, but rather an authorized form of punishment of mild nature, and unlike a pardon, it cannot be refused by the convicted person. Federal courts have an inherent power to reduce a sentence, but without Congressional authorization, a federal court has no power to suspend the execution of a sentence which it has imposed or to place the defendant on probation. When this was first announced by the Supreme Court in 1916 in the case of Ex Parte United States,Ex Parte United States, an abrupt halt was brought to a practice which, by then, had become widespread in the federal system, and which had existed for more than 70 years. A sentence for a period of one year with an order that, after the defendant had served three months of his sentence, probation was to be granted on the condition that the defendant abide by laws, was void for want of jurisdiction, since it was in effect an exercise of pardoning power.
Probation is an act of grace and the defendant does not gain a vested right in probationary status once a probationary sentence is imposed. It has been ruled that the probation power does not unconstitutionally encroach on the pardon power of the President. Since probation is a form of punishment, once the sentence of probation has commenced, the court will run afoul of the double jeopardy clause if it increases the penalty. Probation's primary objective is to protect society by rehabilitating the offender. A person placed on probation is considered a probationer of the court as a whole, and not that of a particular judge thereof. When a defendant is placed on probation, he expressly agrees to be subject to supervision appropriate to a probationer, to avoid the more onerous regimen of a prisoner; accordingly, the defendant retains those rights of an ordinary citizen that are compatible with probationary status, although certain rights, such as the right against self-incrimination, are impaired. There is no requirement that probation must be granted on a specified showing.Burns v. United States, Probation is considered a privilege and not a right. The action of a district court in refusing to grant probation is not reviewable on appeal except possibly for arbitrary or capricious action on the part of the District Court amounting to abuse of discretion. The type of person for whom the benefit of probation was intended is a young first offender. A trial court cannot deny probation to a defendant on the sole ground that it has a standing policy of denying probation to those who stand trial instead of pleading guilty.
Probationary sentences that fall outside the U.S. Sentencing Guidelines can be appealed. An application for probation cannot be acted upon by the trial court after the defendant is taken into custody by the federal marshal to await transportation to the place at which sentence is to be served, since by that point the sentence has already begun to run. The District Court is without jurisdiction to modify its judgment during the pendency of an appeal, but it retains the power to modify, suspend, or otherwise deal with terms of probation. The court also cannot, by issuing a reservation in its judgment, confer upon itself the power to grant probation after the sentence has begun. However, the defendant's paying of a fine does not constitute partial execution of sentence such that it would defeat the court's power to grant probation. A sentence of probation is considered a final judgment, but it can nonetheless be modified or revoked, corrected, or appealed and modified, pursuant to the applicable law and federal rules of criminal procedure.
A defendant can, however, be sentenced to prison on some indictments and be placed on probation for other indictments.Frad v. Kelly
Supervised release Supervised release made its debut in 1984 with the enactment of the Federal Sentencing Guidelines. It replaced federal parole for all crimes committed after November 1, 1987. Congress had concluded that the parole system operated in an arbitrary way because the period of a defendant's street supervision was based on the time remaining in the defendant's original sentence. The system of supervised release was originally intended to help with the rehabilitation and reintegration of offenders into the community, and did not allow revocation of supervised release. The philosophy was that minor violations should not result in revocation, and that new crimes should be dealt with through prosecution as a new offense. However, the system was greatly revamped by the Anti-Drug Abuse Acts of 1986 and 1988. These laws added an incapacitative "protection of the public" goal as a purpose to be served by supervised release, allowed revocation of supervised release, and made revocation mandatory for defendants who committed controlled substance violations.
Violations Violation of the conditions can result in revocation of probation or supervised release. Upon revocation of probation, the court may, after considering the factors set forth in , continue them on probation, with or without extending the term or modifying or enlarging the conditions; or revoke the sentence of probation and resentence the defendant under subchapter A. Upon revocation of supervised release, the defendant may be sentenced to up to 5 years in prison if the offense that resulted in the term of supervised release is a class A felony, up to 3 years in prison if such offense is a class B felony, up to 2 years in prison if such offense is a class C or D felony, or up to one year in any other case. This is in addition to any sentence that may be imposed for a new crime. A person charged with violating the conditions faces the burden of proof of showing by clear and convincing evidence at a detention hearing that they are not a flight risk or danger to the community.