Much in the way that probation and parole are fundamentally different in state court, probation and supervised release are distinct in the federal system.
Whereas parole boards grant early release in the state system, federal courts impose supervised released during sentencing; supervised release is the part of the defendant’s sentence that follows time behind bars. The court isn’t required to order supervised release in most cases, but the federal sentencing guidelines recommend a term of supervised release in most felony cases (cases involving prison terms longer than one year).
Federal courts have to order a period of supervised release in cases involving first-time domestic violence offenders, certain drug and sex offenses, and kidnapped children.
Generally, federal judges are allowed to use their discretion in deciding the length of supervised release—as long as they don’t exceed the maximum the law allows.
Maximum terms. For the most serious felonies (class A and B felonies, such as murder), the maximum term is five years. Less serious felonies (class C and D felonies–bank robbery, for example) carry a three-year maximum. And in cases involving misdemeanors and the least serious felonies (class E felonies, such as filing a fraudulent income tax return or failing to pay child support), supervised release can’t exceed one year.
Minimum terms. Some crimes force courts to impose a minimum period of supervised release—these include serious offenses like kidnapping a child and various drug- and sex-related offenses.
Before deciding whether to impose a term of supervised release and how long to make it, federal judges must considered certain factors. These include:
Where a judge sentences a defendant for multiple crimes and orders more than one term of supervised released, the terms will run concurrently rather than consecutively.
Example: Ralph, a Canadian citizen, is in the U.S. illegally. After a DUI conviction, the government deports him back to Canada. Several months later, Ralph slips back across the border and takes up residence in New York City. He goes back to his old habits and is once again arrested for drunk driving. This time, police also find a stolen firearm in his car. In federal court, Ralph is convicted of illegal reentry into the U.S. (a class E felony) and possession of a stolen firearm (a class C felony). In addition to a prison sentence, the judge imposes supervised release terms of one year for the illegal reentry conviction and three years for the stolen-firearm conviction. Because the supervised release terms run concurrently, when Ralph gets out of prison he will have to serve three years of supervised release.
A federal court can often sentence a defendant to probation—but not always. The judge typically can’t opt for probation where:
Federal judges who don’t order prison time must sentence first-time domestic violence offenders to probation.
The length of a probation term depends primarily on the seriousness of the offense. For felonies, the length of probation must be at least one year and not longer than five years. Misdemeanor probation also has a five-year maximum, but no minimum. Probation terms for infractions can’t exceed one year.
In deciding whether to order probation and the length of any probation term, federal judges must consider—in addition to the factors involved in supervised release decisions—the need for the sentence to:
Federal judges need also take into account the kinds of sentences available for the offense.
The potential conditions of supervised release and of probation are essentially the same. Federal judges must order certain conditions for all defendants, whether supervised release or probation is involved. These typically include the defendant’s:
Courts must order first-time domestic violence offenders to participate in domestic violence rehabilitation programs. They must order sex offenders to comply with sex offender registration requirements.
Federal courts have broad discretion to order additional conditions that are reasonably related to:
But conditions can’t restrict a defendant’s liberty any more than is reasonably necessary, and they must be consistent with the U.S. Sentencing Commission's policy statements.
The federal sentencing guidelines recommend that judges order, in addition to the required conditions, certain “standard” ones. These include:
Other standard conditions prohibit the defendant from drinking too much, hanging out in areas where drugs are used and sold, and associating with criminals.
The federal sentencing guidelines also recommend “special” conditions for specific offenses. For instance, suppose the defendant is or had previously been convicted of a felony or an offense involving a dangerous weapon. In that situation, the guidelines recommend that the judge prohibit the defendant from possessing a firearm or dangerous weapon. (For a related issue, see Can someone possess a gun after a criminal conviction?) Somewhat similarly, the guidelines recommend that judges require defendants who have committed financial crimes to provide their probation officers with access to their financial records.
There are also special conditions that might require a defendant to:
If you face criminal charges—whether in the state or federal system—make sure to consult a qualified attorney who practices in that system. Such a lawyer can more fully advise you of the law and explain how it applies to your situation.