Supervised Release Is Not Parole

The United States has the largest prison population in the developed world. Yet outside prisons, there are almost twice as many people serving terms of criminal supervision in the community— probation, parole, and supervised release. At the federal level, this “mass supervision” of convicted offenders began with the Sentencing Reform Act of 1984, which abolished parole and created a harsher and more expansive system called supervised release. Last term in United States v. Haymond, the Supreme Court took a small step against mass supervision by striking down one provision of the supervised release statute as violating the right to a jury trial.

But the Justices did not consider all the differences between parole and supervised release, which have far broader consequences for the constitutional law of community supervision. The current consensus among the courts of appeals is that supervised release is “constitutionally indistinguishable” from parole and therefore governed by the same minimal standard of due process. Closer inspection, however, reveals three significant differences between parole and supervised release. First, parole was a relief from punishment, while supervised release is an additional penalty.

Second, parole revocation was rehabilitative, while supervised release revocation is punitive. Finally, parole was run by an agency, while supervised release is controlled by courts. Because of these differences, revocation of supervised release should be governed by a higher standard of due process than revocation of parole. In particular, defendants on supervised release deserve more protection against delayed revocation hearings, which may deny them the opportunity to seek concurrent sentencing.