The Secret Success of Federal Probationers

Federal probation officer. Photo courtesy CJUSJobs.

Several times a year, the United States Sentencing Commission (USSC) publishes research reports on the federal criminal justice system.  These reports are part of the Commission’s statutory mandate and provide vital information and analysis to attorneys, scholars and the public.

Over the past 10 years alone, the Supreme Court has cited Commission reports in more than half-a-dozen cases.

Unfortunately, the Commission’s July 2020 report on Federal Probation and Supervised Release Violations contains a major mistake that greatly overstates the dangerousness of federal probationers.  To correct that mistake, I used the Commission’s data to re-run the analysis and found that probationers were more successful than previously reported.

The Commission claimed that approximately one-in-five defendants violated their supervision every year; yet the rate for federal probationers was just one-in-20.  Similarly, the Commission found that nearly half of supervision violators engaged in new felony conduct, but the figure for probation violations was only one-third.

Acknowledging the success of federal probationers is especially important, given current efforts to reduce incarceration and stem COVID-19 transmission by allowing defendants to serve terms of supervision in the community.

If judges are led to believe that probationers are more likely to commit violations, then they may be less willing to impose supervision as an alternative to imprisonment.  The Commission’s error thus not only threatens to taint its own research, but also to mislead the courts to the detriment of criminal defendants and the public.

The Commission deserves credit for publishing the Violations report, which marks the “first time” the agency collected and analyzed data on revocation hearings.  The report includes a publicly accessible database of 108,115 hearings in federal district courts between 2013-2017.

In analyzing this database, the Commission combined defendants sentenced to probation with those sentenced to supervised release, describing them together as “offenders sentenced to supervision.”

That was a significant blunder.

The Commission’s mistake tracks back to its misunderstanding of federal probation, which it says is “functionally equivalent” to supervised release. (Congress abolished federal parole in 1984.)  In fact, probation and supervised release are distinct kinds of sentences imposed in distinct types of cases.

I have previously argued that courts should treat probation parole, and supervised release differently for constitutional reasons.  In this essay, I show how distinguishing between these forms of supervision is also critical for accurate empirical study, and how the Commission’s failure to do so undermines the analysis in the Violations report.

Probation and supervised release are different sentences.

Probation is a term of supervision in lieu of imprisonment, reserved for first-time offenders convicted of minor crimes.  Supervised release, by contrast, is a term of supervision that follows imprisonment, applicable to any defendant convicted of a felony or grade-A misdemeanor.

This formal difference has a substantive impact.

Because probation is limited to low-level defendants, whereas supervised release can be imposed in all cases, probationers are likely to have been convicted of less serious crimes and to have shorter criminal records than people on supervised release.  And since criminal history is a strong predictor of recidivism, it stands to reason that this difference may also affect the violation rates of each group of offenders.

The Commission explained that it combined probation and supervised release in the Violations report because they are “functionally equivalent.”  The report cites the United States Sentencing Guidelines (also published by the Commission), which  say that probation and supervised release share the same “purpose” of “integrati[ing] … the violator into the community, while providing the supervision designed to limit further criminal conduct.”

Yet whatever the “function” or “purpose” of community supervision, probation and supervised release are imposed on distinct populations that must be studied separately.

The Violations report is roughly accurate when it comes to violations of supervised release, which dominate the database.  In 2019, there were 112,500 people on supervised release, compared to just 14,500 on probation.  Similarly, the Commission found that 95 percent of violations were by people on supervised release, compared to just 5 percent on probation.

The Commission failed to recognize, however, that because the data is overwhelmingly violations of supervised release, its analysis would reflect the behavior of those defendants, while obscuring the outcomes for federal probationers.

To correct the Commission’s error, I re-ran the analysis focused solely on the 5,434 revocations in the database for probation violations, and compared my results to the Commission’s reported outcomes for all violators (revocations for both probation and supervised release).

Following the basic outline of the much-more comprehensive Violations report, I focused on three separate areas: (1) violator characteristics, (2) violation characteristics, and (3) sentences imposed.

First, I discovered that probation violators were a distinct population with less serious criminal histories.  As Figure 1 illustrates, the Commission reported that violators overall fell about equally across the six criminal-history categories, yet I determined that probation violators were concentrated in the lowest criminal-history category of I (61 percent), and almost never above category III (<10 percent).  Similarly, Figure 2 shows the Commission found that two-thirds of violators overall were originally convicted of an offense involving violence, guns or drugs, while I found that only one-third of probation violators were originally convicted of such serious offenses.

FIGURE 1

FIGURE 2

These results confirmed my prediction that, because probation was reserved for less serious cases, probation violators would have less aggravated criminal histories than violators overall.

The Commission conflated two distinct populations by combining probation violators with supervised-release violators.  And because nearly all revocations were for supervised-release violations, the effect of the Commission’s error is to conceal the potentially different outcomes for federal probationers.

Next, I tested my hypothesis that defendants on probation would be more successful in complying with their supervision than suggested by the Violations report.  As Figure 3 shows, the Commission reported an annual overall violation rate of between 15 percent to 20 percent, but I calculated a much lower rate for federal probations of about 5 percent.

Likewise, Figure 4 shows the Commission found violators overall committed 13.6 percent serious felony violations (grade A), 31.5 percent  other felony violations (grade B), and 54.9 percent misdemeanor and technical violations (grade C), while I found the rates for probation violators were 6.99 percent, 28.07 percent, and 64.94 percent, respectively.

FIGURE 3

FIGURE 4

Once again, these results confirm my theory that the differences between the probation and supervised-release populations impacted their conduct under supervision.

Compared to violators overall, federal probationers were one-third as likely to commit a violation and half as likely to commit the most serious grade A violations.  The Commission’s error in combining probation and supervised release exaggerated the danger to the public posed by federal probationers.

Finally, I looked at whether there was any difference in the punishment of probation violators.  Although I determined that judges imposed shorter sentences on probationers, this finding was distorted by the fact that these defendants also tended to have shorter criminal histories and to have committed less serious violations, which are the two main factors when calculating the Sentencing Guidelines’ recommended sentencing range.

To get a better estimate of sentencing outcomes, therefore, I looked at how frequently judges sentenced violators within, above, or below the recommended Guidelines range.  Figure 5 shows that while violators overall were sentenced below or within the range 88.9 percent of the time, probation violators were sentenced below or within the range 86.77 percent of the time.

In other words, federal probationers were punished roughly the same, if not slightly more harshly, than the Commission reported for violators overall.

FIGURE 5

All tables courtesy Prof. Jacob Schuman

I draw three conclusions from these results.  First, judges should not let the findings in the Violations report deter them from imposing probation instead of imprisonment on worthy candidates.  While the report suggests a ~20 percent annual violation rate, of which approximately half were new felonies, the data for federal probationers is more promising.

Federal probationers were 95 percent likely to comply with the terms of their supervision, and when they did misbehave, two-thirds of the time it was for a misdemeanor or technical violation.  The report largely reflects the outcomes for supervised-release violators, and is not accurate as to federal probationers.

Second, Congress should consider expanding probation eligibility.  While the low violation rates for federal probationers in part reflect the limited availability of the sentence, their success also suggests that probation might be expanded without serious risk to the public.

Federal judges have proven their ability to select the strongest candidates for supervision over incarceration, and Congress should give them the discretion to do so in more cases.

Revocation always remains a deterrent to violations – in fact, probationers received harsher sentences than reported by the Commission, perhaps to compensate for the leniency they were originally granted.

Finally, the Sentencing Commission should avoid repeating the same mistake in future research.  Probation and supervised release are not just conceptually distinct sentences, but also as a result of their legal differences apply to different populations in ways that impact empirical analysis.

If the Commission does not separate these populations when it studies federal sentencing data, then the much larger number of defendants on supervised release will overwhelm and conceal the outcomes for defendants on probation.

Prof. Jacob Schuman

While I commend the Commission for casting light into this murky corner of the federal criminal justice system, it is important to correct the record on behalf of federal probationers and ensure their success does not remain a secret.

Jacob Schuman is an Assistant Professor at Penn State Law, where he studies criminal law, criminal procedure and sentencing, and an affiliate faculty member at Penn State’s Criminal Justice Research Center and Consortium to Combat Substance Abuse.