Congress Can Take A Second ‘Step’ with Focus on Supervision Reform

The First Step Act emerged from Congress one year ago with strong support from Democrats and Republicans, and authorized the most significant criminal justice changes at the federal level in years. Most notably, the law eased some mandatory minimum sentences, made retroactive earlier reforms intended to reduce disparities in drug sentencing, and allowed people to earn “good time” off their sentences in the manner that lawmakers had originally intended.

Now Congress has a chance to follow up on that bipartisan milestone by strengthening community supervision, another component of the federal correctional system contributing to prison populations and costs without commensurate public safety benefit. Just as many of the federal prison reforms reflected those enacted by states, federal supervision can borrow from state playbooks to adopt policies that have shown success.

Based on state experiences, three changes to community supervision policies can conserve fiscal resources while protecting public safety: ensuring the best use of probation in lieu of incarceration, keeping people on supervision only as long as necessary to reduce recidivism and provide accountability, and reducing admissions to prison for noncompliance with supervision rules, known as technical revocations.

Twenty years ago, roughly four people were in federal prison for every individual on probation. By 2018, that prison-to-probation ratio had mushroomed to 12-to-1, in part because of new laws mandating prison time for many crimes for which people previously could be sentenced to probation. (See Figure 1.)

One consequence was higher costs. Data from fiscal year 2016, for example, show that the average annual cost of incarcerating a person in the U.S. Bureau of Prisons after sentencing ($34,770) was nearly eight times that of supervising someone in the community ($4,392).

Given such evidence, the use of federal probation instead of prison should be expanded for those assessed as low risk for reoffending. Based on 2016 figures, increasing by one-third the number of people sentenced to probation rather than prison would save nearly $70 million per year.

Congress also should examine how long people are kept on supervised release, a federal sentence of mandatory post-prison supervision instituted when federal parole was abolished, and evaluate the extent to which these terms can be safely reduced.

In 2010, the U.S. Sentencing Commission reported that from 2005 to 2009, the average supervised release term was 41 months. An analysis by The Pew Charitable Trusts, published in November in Perspectives, the journal of the American Probation and Parole Association, found that 43 percent of those sentenced to supervised release in that time period received more time on supervision than they had spent in prison. Separate research by Pew in 2017 showed that the average time spent under federal supervision rose 12 percent from 1995 to 2015.

Recidivism data suggest that many of those on federal supervision could have safely served shorter terms. Among those who began federal supervision in 2005, the five-year recidivism rate was comparable for people sentenced to two versus three years of supervision (38 percent and 41 percent, respectively). In fact, in 7 of 10 cases in which supervision was revoked or the person was rearrested, the recidivism occurred within the first two years of supervision.

One way for Congress to shorten supervision terms would be to follow the states’ lead and permit people who comply with rules to accumulate “earned time” credits. Federal courts have the ability to accelerate discharge from supervision, but it is seldom used. A 2013 review by the federal judiciary provided support for such a strategy. It found that 10.2 percent of those released early from federal supervision were rearrested, compared with nearly twice as many—19.2 percent—of a comparable group released after completing their full sentences.

Such findings indicate that the federal government could safely reduce the length of supervision terms, a change that would allow officials to shift resources to higher-risk cases.

Reducing technical revocations is a third reform step that merits congressional consideration. In 2018, about 7 in 10 revocations of post-conviction supervision were for rules violations (failing drug tests, missing meetings with a supervision officer, traveling without permission) rather than for new crimes. And although supervision revocations for new offenses were down over the past decade, technical revocations increased. One explanation: Revocation is statutorily mandated for violations related to drug use. A 2015 survey of federal judges found  that most favored eliminating mandatory revocations for drug-related violations and wanted more discretion to send people back for less time if a return to prison was warranted.

Numerous states have made reducing technical revocations a goal of their reform packages, with promising outcomes. Permitting the use of administrative sanctions instead of revocations, reducing the number of violations for which revocation is mandatory, allowing people to earn earlier release from supervision, and giving judges greater discretion to impose shorter periods of revocation would reduce the size of the supervision population cycling in and out of federal prisons.

With enactment of the First Step Act in the rearview mirror, it’s time for Congress to look to a new phase of fruitful criminal justice reform. The states provide examples of ways to reform federal community supervision to create better public safety outcomes, reduce prison populations, and save money.

Jake Horowitz is the director and Tracy Velázquez is a research manager with The Pew Charitable Trusts’ public safety performance project.