Terminating supervision early

• Pages: 261-323
• Date: 01 April 2025
• Published date: 01 April 2025
• Author: Jacob Schuman

TERMINATING SUPERVISION EARLY

†

Jacob Schuman*

ABSTRACT

Community supervision is a major form of criminal punishment and a major

driver of mass incarceration. In 2022, over 3.5 million people in the United

States were serving terms of probation, parole, or supervised release, and revo-

cations account for nearly half of all prison admissions. Although supervision is

intended to prevent crime and promote reentry, it can also interfere with the

defendant’s reintegration by imposing onerous restrictions as well as punishment

for non-criminal technical violations. Probation off‌icers also carry heavy case-

loads, which forces them to spend more time on enforcing conditions and less on

providing support.

Fortunately, the criminal justice system also includes a mechanism to solve

these problems: early termination of community supervision. From the beginning,

the law has always provided a way for the government to cut short a defendant’s

term of supervision if the defendant can demonstrate that they have reformed

themselves. Recently, judges, correctional off‌icials, and activists have all called

to increase rates of early termination to save resources, ease the reentry process,

and encourage rehabilitation. Yet despite this attention from the f‌ield, there are

no law review articles on terminating supervision early.

In this Article, I provide the f‌irst comprehensive analysis of early termination

of community supervision. First, I recount the long history of early termination,

from the invention of probation and parole in the 1800s to the Safer Supervision

Act of 2023. Second, I identify and critique recent legal changes that have made

it harder for federal criminal defendants to win early termination of supervised

release. Finally, I propose the f‌irst empirically-based sentencing guideline on ter-

minating supervision early, which I recommend in most cases after eighteen to

thirty-six months of supervised release. If community supervision drives mass

incarceration, then early termination offers a potential tool for criminal justice

reform.

† The American Criminal Law Review has not independently reviewed the data and analyses described herein.

* Associate Professor, Temple University Beasley School of Law. For their advice and comments, I thank

Shirin Bakhshay, Douglas Berman, Aliza Hochman Bloom, Eric Fish, Grace Li, Nirej Sekhon, and the

participants in the American Bar Association Criminal Justice Section-Academy for Justice Criminal Justice

Workshop Roundtable. For their assistance with my empirical analysis, I thank Eric Feigelson, Kevin Wilson,

and Max Wilson. Finally, I am grateful for the help of my research assistant, Abhilasha Khanal. © 2025, Jacob

Schuman.

261

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262

I. HISTORY OF EARLY TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 268

A. Parole, Probation, and Supervised Release . . . . . . . . . . . . . . 268

B. Early History of Early Termination . . . . . . . . . . . . . . . . . . . . 274

C. Federal Early Termination . . . . . . . . . . . . . . . . . . . . . . . . . . 277

II. LAW OF EARLY TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281

A. Initiated Versus Automatic Review. . . . . . . . . . . . . . . . . . . . . 281

B. Exceptional Behavior Versus Full Compliance . . . . . . . . . . . . 285

C. Early Termination Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . 291

III. EARLY TERMINATION GUIDELINE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297

A. Early Termination Disparities . . . . . . . . . . . . . . . . . . . . . . . . 297

B. The Guide to Judiciary Policy . . . . . . . . . . . . . . . . . . . . . . . . 299

C. Proposed Guideline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312

INTRODUCTION

Community supervision is a major form of criminal punishment and a “major

driver” of mass incarceration.

1

Press Release, Phila. Dist. Att’y’s Off., New Philadelphia D.A.O. Policies Announced March 21, 2019 to

End Mass Supervision (Mar. 21, 2019), https://www.docdroid.net/APYQxII/philadelphia-district-attorneys-

off‌ices-policies-to-end-mass-supervision-pdf.

In 2022, over 3.5 million people in the United

States were serving terms of probation, parole, or supervised release,

2

DANIELLE KAEBLE, U.S. DEP’T OF JUST., PROBATION AND PAROLE IN THE UNITED STATES, 2022, at 1

(2024), https://bjs.ojp.gov/document/ppus22.pdf. Although probation, parole, and supervised release are all

forms of community supervision, they differ in their relation to the defendant’s term of imprisonment. See Jacob

Schuman, Revocation at the Founding, 122 MICH. L. REV. 1381, 1389–90 (2024). In the federal system,

probation is supervision imposed in lieu of imprisonment, parole is supervision imposed upon early release from

imprisonment, and supervised release is supervision imposed to follow imprisonment. Id.; see also id. at 1389

n.39 (noting that some states use different terms to describe these forms of supervision).

which was

about twice the number of people in jails and prisons.

3

JACOB KANG-BROWN, STEPHEN JONES, JOYCE TAGAL & JESSICA ZHANG, VERA INST. OF JUST., PEOPLE IN

JAIL AND PRISON IN 2022, at 2 (2023), https://www.vera.org/downloads/publications/People-in-Jail-and-Prison-

in-2022.pdf.

Defendants sentenced to

community supervision may be imprisoned without a jury trial for violating any of

a long list of conditions regulating their “relationships, movement, activities, f‌inan-

ces, and personal habits.”

4

About one-third of defendants are “unsuccessful” in

abiding by the conditions of their supervision.

5

PEW CHARITABLE TRS., PROBATION AND PAROLE SYSTEMS MARKED BY HIGH STAKES, MISSED

OPPORTUNITIES 9 (2018), https://www.pewtrusts.org/-/media/assets/2018/09/probation_and_parole_systems_

marked_by_high_stakes_missed_opportunities_pew.pdf.

In 2021, over 230,000 defendants

1.

2.

3.

4. Renagh O’Leary, Supervising Sentencing, 57 U.C. DAVIS L. REV. 1931, 1945 (2024); FED. R. CRIM. P.

32.1(b); see also Fiona Doherty, Obey All Laws and Be Good: Probation and the Meaning of Recidivism, 104 GEO.

L.J. 291, 300–15 (2016) (listing common supervision conditions).

5.

262 AMERICAN CRIMINAL LAW REVIEW [Vol. 62:261

had their community supervision revoked and were sentenced to imprisonment,

6

Press Release, Leah Wang, Prison Pol’y Initiative, Punishment Beyond Prisons 2023: Incarceration and

Supervision by State (May 2023), https://www.prisonpolicy.org/reports/correctionalcontrol2023.html#:�:text=

In%202021%2C%20over%20230%2C000%20people,into%20a%20prison%20or%20jail.

accounting for nearly forty-four percent of all prison admissions.

7

COUNCIL OF STATE GOV’TS, S UPERVISION VIOLATIONS AND THEIR IMPACT ON INCARCERATION 4 (2024),

https://projects.csgjusticecenter.org/supervision-violations-impact-on-incarceration/wp-content/uploads/sites/

15/2024/01/Supervision-Violations-Impact-2024_508.pdf.

A coalition of

probation and parole leaders recently warned that “mass supervision” has become

“overly burdensome” and “punitive .. . especially for people of color.”

8

EXIT: EXECS. TRANSFORMING PROB. & PAROLE, STATEMENT ON THE FUTURE OF PROBATION & PAROLE IN

THE UNITED STATES (2020), https://static1.squarespace.com/static/5d2cd5943236f70001aeee14/t/

5fb2ef2eefbbc40e681ebbf1/1605562158191/EXiT+Statement.pdf.

In theory, community supervision plays a “dual role” that is “part law enforce-

ment” and “part social work.”

9

Probation and Pretrial Services—Mission, U.S. CTS., https://www.uscourts.gov/services-forms/probation-

and-pretrial-services/probation-and-pretrial-services-mission (last visited Feb. 22, 2025); see also United States

v. Jennings, 652 F.3d 290, 301 (2d Cir. 2011) (explaining a probation off‌icer’s supervisory duties “necessarily

overlap some law enforcement duties”); Stefan R. Underhill, Supervised Release Needs Rehabilitation, 10 V

A. J.

CRIM. L. 1, 5 (2024) (describing the “dual purposes” of supervised release as “rehabilitation” and “protection of

the public”).

The system aims both to ensure that the defendant

does not reoffend and to support their return to society. Balancing these dueling

interests, however, is not always easy. A term of supervision can “provide mean-

ingful assistance” in the form of treatment, training, resources, and encouragement,

yet also “comes with the stigma of a criminal record, potentially degrading experi-

ences ...onerous f‌inancial and time constraints, and the threat of revocation.”

10

In

other words, the goal of protecting the community from the defendant may some-

times interfere with the goal of helping that defendant reintegrate into the

community.

Critics argue that community supervision has become “too punitive and focused

on suppression, surveillance, and control, rather than well-being and growth.”

11

Supervision itself increases the risk of imprisonment by subjecting the defendant

to enhanced surveillance as well as punishment for non-criminal technical viola-

tions.

12

See CLARENCE OKOH & ISABEL CORONADO, CTR. FOR L. & SOC. POL’Y, RELOCATING REENTRY:

DIVESTING FROM COMMUNITY SUPERVISION, INVESTING IN “COMMUNITY REPAIR” 2 (2022), https://www.clasp.

org/wp-content/uploads/2022/09/2022.9.7_Relocating-Reentry.pdf; see also CATIE CLARK, WILLIAM D. BALES ,

SAMUEL SCAGGS, DAVID ENSLEY, PHILIP COLTHARP & THOMAS G. BLOMBERG, ASSESSING THE IMPACT OF POST-

RELEASE COMMUNITY SUPERVISION ON POST-RELEASE RECIDIVISM AND EMPLOYMENT 39 (2015), https://www.

ojp.gov/pdff‌iles1/nij/grants/249844.pdf (noting reimprisonment of individuals under supervision may be due to

technical violations).

This combination “can trap some defendants, particularly substances

6.

7.

8.

9.

10. Michelle S. Phelps & Ebony L. Ruhland, Governing Marginality: Coercion and Care in Probation, 62

SOC. PROBS. 799, 800 (2022).

11. EXIT: EXECS. TRANSFORMING PROB. & PAROLE, supra note 8; see VINCENT SCHIRALDI, MASS

SUPERVISION: PROBATION, PAROLE, AND THE ILLUSION OF SAFETY AND FREEDOM 17 (2023); see also Underhill,

supra note 9, at 3 (noting revocations of supervised release send defendants back to prison largely for technical

violations).

12.

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