When can federal courts change or revoke probation and supervised release?

Probation and supervised release are similar yet distinct ways that federal courts supervise people convicted of crime. Probation is an alternative to prison time, while supervised release follows prison time. These forms of supervision carry conditions that offenders must abide by. (For much more, see Probation and Supervised Release in Federal Court.)

Modification

At any time before a term of supervised release or probation ends, a federal court may modify the original conditions. In deciding whether and how to modify, courts consider the same factors involved in the initial ordering of supervised release or probation. These factors include:

  • the recommendations in the federal sentencing guidelines
  • the nature of the current offense
  • the defendant’s history
  • the need to prevent the defendant from committing crimes in the future
  • protection of the public, and
  • providing the defendant with necessary educational or career training, medical care, and other rehabilitative services.

For probation modification, judges also consider:

  • the need for the sentence to reflect the seriousness of the offense, promote respect for the law, and provide a just punishment, and
  • the kinds of sentences available for the offense.

Although judges consider the same factors they originally considered in setting the probation or supervised release term, they consider them at a different point in time. In that way, modification allows flexibility for circumstances that might change over time.

Termination and Extension

Early termination and extension of supervised release and probation are also possibilities when a judge reconsiders a defendant’s status.

Supervised Release. After considering the relevant modification factors (above), the court can discharge a defendant from supervised release—in other words, free the defendant from supervision. But the defendant must first complete one year of supervised release. Judges can’t discharge early when the supervised release is one year or less. And the court must find that the defendant’s conduct and the interest of justice warrant discharge.

Probation. The court can discharge a defendant from probation after one year in felony cases, and at any time for misdemeanor and infraction convictions.

On the other hand, a judge can extend supervised release or probation if circumstances warrant it. But the extended term can’t be longer than the maximum term that the judge could have originally ordered.

Violation

If, after a hearing, a judge finds that a defendant has violated a condition of probation or supervised release, the judge has options. The judge can continue the defendant on probation or supervised release, modifying or not modifying the conditions or the length of the probation or supervised release. The judge also has the option of revoking the probation or supervised release.

Revocation

A judge who revokes probation can resentence the defendant to any sentence that was originally available for the defendant’s crime. For violations involving drug or firearm possession, refusing to take a drug test, or testing positive for drugs more than three times in a year, the judge must revoke probation or supervised release and sentence the defendant to prison. The federal sentencing guidelines also recommend that the judge revoke probation if the violation is based on a state or federal felony offense.

From Supervised Release to Prison

A judge who finds that an offender violated the terms of supervised release can send the defendant to prison for all or part of the maximum term that was originally available for supervised release. The defendant doesn’t get credit for the time she’s already spent on supervised released.

But the imprisonment can’t be longer than:

  • five years for class A felonies (murder, for example)
  • three years for class B felonies (possession with intent to distribute cocaine, for example)
  • two years for class C and D felonies (bank robbery, for example), and
  • one year for all other crimes.

A judge who orders someone on supervised release back to prison can order another term of supervised release to follow the time in prison. But the supervised release term can’t exceed the maximum allowed for the defendant’s original offense. Here, the defendant’s time in prison counts toward the maximum term of supervised release.

Talk to a Lawyer

If the government—state or federal—has charged you with a crime, consult a qualified attorney who practices in the relevant court system. An experienced lawyer can more fully advise you of the law and explain how it applies to your situation.

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