Criminal Violations

*Assistant Professor of Law, Penn State Law School. Thank you to Dan Cahoy, Ingrid Eagly, Katie Eyer, Ann Freedman, Alison Guernsey, M. Eve Hanan, Ben Johnson, Thea Johnson, Kit Kinports, Adam Muchmore, David Noll, Anna Roberts, Victor Romero, Stephen Ross, Matt Shapiro, Julia Simon-Kerr, Shoba Sivaprasad Wadhia, Daniel Walters, Sam Wiseman, and the participants in the Rutgers University Law School Faculty Colloquium, the American Bar Association Criminal Justice Section-Academy for Justice Criminal Justice Workshop Roundtable, and the Penn State Law Faculty Works-in-Progress Fall Series. Thanks as well to my research assistants, Erin Karmen and Jesse Zilinski, and to the editors of the Virginia Law Review, especially Dev Ranjan for his work substantiating my empirical analysis. For disclosure, I represented the defendants in United States v. Jackson, 388 F. Supp. 3d 505 (E.D. Pa. 2019) and United States v. Schonewolf, 905 F.3d 683 (3d Cir. 2018).Show More

Violations of community supervision are major drivers of incarceration. Nearly four million people in the United States are serving terms of probation, parole, or supervised release, and one-third of them are eventually found in violation of a condition of their supervision, sending 350,000 people to prison each year. To reduce incarceration rates, criminal justice reformers have called for lower sentences for non-criminal “technical violations,” such as missed meetings, skipped curfews, etc.

In this Article, I offer the first comprehensive analysis of “criminal violations,” the other half of cases where people violate their supervision by committing new crimes. Based on an original empirical study of U.S. Sentencing Commission data and an examination of federal case law, I make three novel observations. First, despite the popular focus on technical violations, criminal violations are the primary drivers of punishment via revocation of supervised release, accounting for at least two-thirds of the total prison time imposed. Second, while technical violations punish non-criminal behavior, criminal violations drive punishment by increasing sentences for criminal convictions and making punishing crimes easier. Third, the immigration crime of illegal reentry accounts for as many as one-third of all revocations for felony violations, revealing that supervised release is no longer just a program of surveillance or support but also has become a tool of immigration enforcement.

Finally, after describing revocations for criminal violations in the federal criminal justice system, I argue that punishing criminal violations inflicts unfair double punishment and erodes constitutional rights. When defendants on supervised release commit new crimes, the better and fairer response is to prosecute them without revoking their supervision. The law of revocation opens an exception to the ordinary rules of criminal prosecution, which the federal government has generalized into a powerful engine of imprisonment.

Introduction

Violations of community supervision are major drivers of incarceration.¹ 1.Cf. Press Release, Phila. Dist. Att’y’s Off., New Philadelphia D.A.O. Policies Announced Mar. 21, 2019 to End Mass Supervision (Mar. 21, 2019), https://medium.com/philadelphia-justice/philadelphia-daos-policies-to-end-mass-supervision-fd5988cfe1f1 [https://perma.cc/7​M3F-2U24] (“Mass supervision is a major driver of mass incarceration.”).Show More Almost four million people in the United States are on probation, parole, or supervised release.² 2.Danielle Kaeble, U.S. Dep’t of Just., Probation and Parole in the U.S., 2020, at 1 (2021), https://bjs.ojp.gov/content/pub/pdf/ppus20.pdf [https://perma.cc/9RRN-7TVM].Show More One-third of them are eventually found in violation of their supervision, sending 350,000 people to prison each year and accounting for 45% of state prison admissions and 25% of the nation’s prison population.³ 3.Adam Gelb, Juliene James, Amy Solomon & Brian Elderbroom, The PEW Charitable Trs., Probation and Parole Systems Marked by High Stakes, Missed Opportunities 9 (2018), https://www.pewtrusts.org/-/media/assets/2018/09/probation_and_parole_systems_marked_​by_high_stakes_missed_opportunities_pew.pdf [https://perma.cc/F4G4-AC2Z]; Council of State Gov’t Just. Ctr., Confined and Costly: How Supervision Violations Are Filling Prisons and Burdening Budgets (2019), https://csgjusticecenter.org/wp-content/uploads/2020/01/co​nfined-and-costly.pdf [https://perma.cc/QVS2-NN4L].Show More A coalition of probation and parole officials recently warned that “mass supervision” was contributing to “mass incarceration,” because, “[f]ar from being an aid to community reintegration as originally designed, community supervision too often serves as a tripwire to imprisonment, creating a vicious cycle of reincarceration.”⁴ 4.See Statement on the Future of Probation & Parole in the United States, EXiT: Execs. Transforming Prob. & Parole (Nov. 13, 2020), https://www.exitprobationparole.org/statement [https://perma.cc/D2NF-5YJV].Show More

To reduce incarceration rates, criminal justice reformers have called for lower sentences for non-criminal “technical violations” like missing meetings with the probation officer, skipping curfew, or filing late paperwork.⁵ 5.See Alex Roth, Sandhya Kajeepeta & Alex Boldin, Vera Inst. of Just., The Perils of Probation: How Supervision Contributes to Jail Populations 29 (2021), https://www.ve​ra.org/downloads/publications/the-perils-of-probation.pdf [https://perma.cc/T9H8-YG5D] (advocating for “eliminating incarceration for technical violations”); Reagan Daly, Mackenzie Deary, Victoria Lawson & Pavithra Nagarajan, CUNY Inst. for State & Loc. Governance, Pathways to Success on Probation: Lessons Learned from the First Phase of the Reducing Revocations Challenge 30–31 (2021), https://static1.squarespace.com/static/5fcea962a1b4d​771ad256fcc/t/61707b8a29d1471381fbcce8/1634761610960/10192021+Reducing+Revocations+v4.pdf [https://perma.cc/K9X3-QB8F] (recommending “limit[ing] the circumstances under which formal technical violations can be filed”); Tonja Jacobi, Song Richardson & Gregory Barr, The Attrition of Rights Under Parole, 87 S. Cal. L. Rev. 887, 930 (2014) (arguing “prison even for technical violations . . . is problematic”); Cecelia Klingele, Rethinking the Use of Community Supervision, 103 J. Crim. L. & Criminology 1015, 1047 (2013) (supporting “barring revocation as a sanction for many noncriminal violations”); see also Vincent Schiraldi, Explainer: How ‘Technical Violations’ Drive Incarceration, The Appeal (Mar. 23, 2021), https://theappeal.org/the-lab/explainers/explainer-how-technical-violations-drive-incarceration/[https://perma.cc/8ZTH-WGYA]; Andrea Fenster, Technical Difficulties: D.C. Data Shows How Minor Supervision Violations Contribute to Excessive Jailing, Prison Pol’y Initiative (Oct. 28, 2020), https://www.prisonpolicy.org/b​log/2020/10/28/dc_technical_violations [https://perma.cc/U5PX-N2Y5] (same); Stephen Handelman, Recidivism’s Hidden Drivers: ‘Technical Violations’ of Probation or Parole, The Crime Rep. (Mar. 5, 2020), https://web.archive.org/web/20200927112600/https://thec​rimereport.org/2020/03/05/the-hidden-driver-of-recidivism-technical-violations-of-probation​-or-parole/ [https://perma.cc/G2AB-ZE7Z] (same); Eli Hager, At Least 61,000 Nationwide Are in Prison for Minor Parole Violations, The Marshall Project (Apr. 23, 2017, 10:00 PM), https://www.themarshallproject.org/2017/04/23/at-least-61-000-nationwide-are-in-prison-for-minor-parole-violations [https://perma.cc/F6NB-RFX4] (same).Show More In 2019, Philadelphia District Attorney Larry Krasner announced an “effort to . . . bring balance back to sentencing” by limiting sentencing recommendations for technical violations to between thirty and sixty days’ imprisonment.⁶ 6.Press Release, Phila. Dist. Att’y’s Off., supra note 1.Show More The year after, lawmakers from three states joined with Professors Lara Bazelon and Shon Hopwood to propose legislation reorienting community supervision toward “rehabilitative, rather than surveillance, goals” by eliminating punishment “for asserted technical violations (i.e. violations that are non-criminal in nature).”⁷ 7.Lara Bazelon, Shon Hopwood, Jehan Gordon-Booth, Leslie Herod & Sydney Kamlager, The Just. Collaborative Sent’g Taskforce, Sample Legislation on Probation 7 (2020), https://30glxtj0jh81xn8rx26pr5af-wpengine.netdna-ssl.com/wp-content/uploads/2020/12/20.​10_Model-Policy-for-Probation-1.pdf [https://perma.cc/378H-XECN]; see also Klingele, supra note 5, at 1047–49 (describing legislative efforts to reduce punishments for technical violations).Show More Even the staid U.S. Sentencing Commission recently announced a plan to reexamine how the federal sentencing guidelines “treat revocations . . . for conduct constituting a violation . . . that does not result in an arrest, criminal charge, or conviction,”⁸ 8.Final Priorities for Amendment Cycle, 83 Fed. Reg. 43956, 43956–57 (Aug. 28, 2018).Show More explaining that it had “received comment over the years regarding the impact of revocations, much of which focused on the impact of technical violations.”⁹ 9.Tracey Kyckelhahn & S. Alexander Maisel, U.S. Sent’g Comm’n, Revocations Among Federal Offenders 13 (2019), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2019/20190131_Revocations.pdf [https://perma.cc/5742-T3TQ].Show More

The outcry over technical violations is understandable. Approximately half of all revocations are for technical violations, yet by definition this behavior is not ordinarily considered worthy of incarceration.¹⁰ 10.Council of State Gov’t Just. Ctr., supra note 3.Show More By imprisoning people for non-criminal conduct, technical violations widen “the net of criminal social control.”¹¹ 11.Marcy R. Podkopacz & Barry C. Field, The Back-Door to Prison: Waiver Reform, “Blended Sentencing,” and the Law of Unintended Consequences, 91 J. Crim. L. & Criminology 997, 1070 (2001).Show More In practice, moreover, perfect compliance with the conditions of supervision is difficult, if not impossible,¹² 12.See Daly et al., supra note 5, at 15; ACLU Hum. Rts. Watch, Revoked: How Probation and Parole Feed Mass Incarceration in the U.S. 3 (2020), https://www.aclu.org/report/aclu-and-hrw-report-revoked-how-probation-and-parole-feed-mass-incarceration-united-states [https://perma.cc/TY3L-YD8F].Show More and penalizing minor infractions may encourage recidivism rather than reintegration.¹³ 13.Carrie Pettus-Davis & Stephanie Kennedy, Inst. for Just. Rsch. and Dev., Going Back to Jail Without Committing a Crime: Early Findings from a Multi-State Trial 3 (2020), https://ijrd.csw.fsu.edu/sites/g/files/upcbnu1766/files/media/images/publication_pdfs/Going_Back_to_Jail.pdf [https://perma.cc/Y2Z8-RVLZ].Show More Finally, defendants charged with technical violations seem the most sympathetic—and therefore the most likely to win popular support for reform.¹⁴ 14.As Professor Cecelia Klingele observed, the distinction between criminal and technical violations does not always reflect “the severity of the conduct.” Klingele, supra note 5, at 1049. Minor crimes like “[d]isorderly conduct” may not “signify a true threat to the community,” while technical violations like a “pedophile who stalks the playground” can “involve dangerous behavior.” Id.Show More

Concentrating on technical violations, however, misses a major piece of the story: the other half of revocations based on new criminal conduct,¹⁵ 15.Cf. Council of State Gov’t Just. Ctr., supra note 3 (reporting that technical violations account for approximately half of all state prison admissions for probation and parole revocations); Daly et al., supra note 5, at 20 (reporting that technical violations account for between 61% and 90% of all petitions to revoke probation in some jurisdictions).Show More which I refer to in this Article as “criminal violations.” By state and federal law, every term of community supervision includes a condition requiring that the defendant not commit another crime,¹⁶ 16.See, e.g., 18 U.S.C. § 3583(d) (federal supervised release); id. § 3563(a) (federal probation); id. § 4209(a) (1982) (federal parole); Fiona Doherty, Obey All Laws and Be Good: Probation and the Meaning of Recidivism, 104 Geo. L.J. 291, 301 (2016) (state probation); see also Neil P. Cohen, The Law of Probation and Parole § 8:1 (2021) (“Probation and parole orders routinely contain a condition which, written in general terms, prohibits offenders from violating the law. . . . This condition appears in both federal and state probation and parole requirements.”).Show More which Professor Fiona Doherty has described as the “obey all laws” condition of supervision.¹⁷ 17.Doherty, supra note 16, at 301–02.Show More If a person on probation, parole, or supervised release engages in new criminal activity, then the government can revoke their supervision and imprison them as punishment for their criminal violation.¹⁸ 18.See infra Section II.B.Show More

Until now, there has been little to no research on how criminal violations drive punishment. In 2021, researchers from the CUNY Institute for State and Local Government published a study on probation revocations in ten U.S. counties, reporting that “technical violations—those issued purely for noncompliance . . . that do not involve new criminal activity”—range from 61% to 90% of all violations filed in some jurisdictions.¹⁹ 19.Daly et al., supra note 5, at 9, 20.Show More By implication, of course, the remaining 10% to 39% of violations must have been for new criminal conduct. The study observed that these “new crime” violations were more likely to end in revocation than were technical violations, yet it was “not clear . . . what types of new crimes are tied to revocations.”²⁰ 20.Id. at 20, 32.Show More The authors highlighted “new crime” violations as an “important question to be further explored in future research,” emphasizing that their “prevalence” made “addressing them . . . critical for significantly reducing revocations overall.”²¹ 21.Id. at 32.Show More

The popular focus on technical violations is akin to the well-meaning but limited calls for reducing punishment of “nonviolent drug offenders.”²² 22.James Forman Jr., Locking Up Our Own: Crime and Punishment in Black America 220 (2017).Show More As Professor James Forman, Jr., has explained, “America’s incarceration rates for nonviolent drug offenders are unprecedented and morally outrageous, but they are not ‘the real reason our prison population is so high.’”²³ 23.Id. at 228.Show More In reality, what drives mass incarceration are long sentences for violent crimes.²⁴ 24.See John Pfaff, Decarceration’s Blindspots, 16 Ohio St. J. Crim. L. 253, 265 (2019).Show More Even if the United States released every prisoner convicted of a non-violent drug offense, it still would have the largest prison population in the world.²⁵ 25.Forman, supra note 22, at 228.Show More

Just like emphasizing nonviolent drug offenders, focusing only on technical violations is understandable yet incomplete. Punishments for non-criminal technical violations may be excessive or even unfair, yet they account for only half of all revocations. Even if the government stopped punishing technical violations entirely, punishments for criminal violations would still drive up to half of all revocations in some jurisdictions.²⁶ 26.See Council of State Gov’t Just. Ctr., supra note 3 (reporting that technical violations account for approximately half of all state prison admissions for probation and parole revocations); Daly et al., supra note 5, at 20 (reporting that technical violations account for between 61% and 90% of all petitions to revoke probation in some jurisdictions).Show More To understand the connection between community supervision and mass incarceration, therefore, we must study the role of criminal violations.

To be clear: I am not suggesting that technical violations are unimportant because they result in less prison time. Even a short prison sentence “inflicts a ‘grievous loss’”²⁷ 27.Morrissey v. Brewer, 408 U.S. 471, 482 (1972).Show More that may “imperil [a person’s] job, interrupt his source of income, and impair his family relationships.”²⁸ 28.Gerstein v. Pugh, 420 U.S. 103, 114 (1975).Show More I also recognize that people under supervision who commit new crimes are not conventionally sympathetic.²⁹ 29.Johnson v. United States, 529 U.S. 694, 709–10 (2000) (describing violators as “problem case[s] among problem cases”).Show More Nevertheless, federal judges revoke supervised release and send people to prison for criminal violations in tens of thousands of cases every year and impose hundreds of thousands of months of imprisonment. Criminal violations are thus a critical issue in supervision law and policy that deserve our attention and respect.

In this Article, I offer the first comprehensive analysis of how criminal violations drive punishment, focusing on the federal system of supervised release.³⁰ 30.I do not address probation, which is community supervision in lieu of imprisonment. See 18 U.S.C. § 3561(a); U.S. Sent’g Guidelines Manual § 7A2(a) (U.S. Sent’g Comm’n 2018). Probation is reserved for less serious crimes and imposed in less than 10% of cases. See 18 U.S.C. § 3561(a); U.S. Sent’g Comm’n, 2019 Annual Report and Sourcebook of Federal Sentencing Statistics 61 fig.6 (2019), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-and-sourcebooks/2019/2019-Annual-Report-and-Sourcebook.pdf. [https://perma.cc/AJ5N-TU7A].Show More The federal supervision system is a good example because it is one of the ten largest in the country³¹ 31.See Doherty, supra note 16, at 298–300.Show More and “inevitably acts as a model, both positive and negative, for developments in the states.”³² 32.See Frank O. Bowman, III, The Failure of the Federal Sentencing Guidelines: A Structural Analysis, 105 Colum. L. Rev. 1315, 1318, 1320 (2005).Show More Information on federal supervision violations is also publicly available. In July 2020, the U.S. Sentencing Commission published a report on federal supervision violations, which “[f]or the first time” made available “data collected from documents related to revocation hearings,” including a database of 108,115 revocation hearings in federal district courts between 2013 and 2017.³³ 33.U.S. Sent’g Comm’n, Federal Probation and Supervised Release Violations 1, 12–13 (2020) [hereinafter Violations], https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2020/20200728_Violations.pdf. [https://perma.cc/J3VH-B9T2].Show More Because federal courts ordinarily “do not use a standardized reporting system for sentences imposed following violations,” the Commission’s revocation database offers an extraordinary opportunity for understanding this subterranean layer of the federal criminal justice system.³⁴ 34.Id. at 12. Unfortunately, the Commission only collected data on the five years between 2013 to 2017, so we remain in the dark on revocations outside this time frame.Show More

Through an original empirical study of the revocation database and examination of federal case law, I sought to answer three basic questions about how criminal violations drive punishment: (1) How much incarceration is attributable to criminal violations? (2) What is the function of criminal violations in the federal criminal justice system? And (3) What is the most commonly punished criminal violation? In answering these questions, I uncovered significant problems in the law of revocation, which led me to ask a fourth question: Is revoking supervised release for criminal violations justified or fair?

Part I of this Article reviews the law and history of supervised release. Part II describes my empirical and legal analysis of revocations for criminal violations in the federal system, which found they drive two-thirds of the total prison time imposed by increasing sentences for criminal convictions and making punishment easier for the government. Part III presents my analysis showing that the immigration crime of illegal reentry is one of the most commonly punished criminal violations and revealing that supervised release has become part of the “crimmigration” system. Part IV argues that revoking supervised release for criminal violations inflicts unfair double punishment and erodes constitutional rights, and therefore prosecution without revocation is a better and fairer way to punish crimes committed under community supervision. Finally, the Conclusion suggests that the law of revocation opens an exception to the ordinary rules of prosecution, which the U.S. Supreme Court, the Sentencing Commission, and the U.S. Department of Justice have generalized into a major engine of imprisonment.

1. Cf. Press Release, Phila. Dist. Att’y’s Off., New Philadelphia D.A.O. Policies Announced Mar. 21, 2019 to End Mass Supervision (Mar. 21, 2019), https://medium.com/philadelphia-justice/philadelphia-daos-policies-to-end-mass-supervision-fd5988cfe1f1 [https://perma.cc/7​M3F-2U24] (“Mass supervision is a major driver of mass incarceration.”). ↑
2. Danielle Kaeble, U.S. Dep’t of Just., Probation and Parole in the U.S., 2020, at 1 (2021), https://bjs.ojp.gov/content/pub/pdf/ppus20.pdf [https://perma.cc/9RRN-7TVM]. ↑
3. Adam Gelb, Juliene James, Amy Solomon & Brian Elderbroom, The PEW Charitable Trs., Probation and Parole Systems Marked by High Stakes, Missed Opportunities 9 (2018), https://www.pewtrusts.org/-/media/assets/2018/09/probation_and_parole_systems_marked_​by_high_stakes_missed_opportunities_pew.pdf [https://perma.cc/F4G4-AC2Z]; Council of State Gov’t Just. Ctr., Confined and Costly: How Supervision Violations Are Filling Prisons and Burdening Budgets (2019), https://csgjusticecenter.org/wp-content/uploads/2020/01/co​nfined-and-costly.pdf [https://perma.cc/QVS2-NN4L]. ↑
4. See Statement on the Future of Probation & Parole in the United States, EXiT: Execs. Transforming Prob. & Parole (Nov. 13, 2020), https://www.exitprobationparole.org/statement [https://perma.cc/D2NF-5YJV]. ↑
5. See Alex Roth, Sandhya Kajeepeta & Alex Boldin, Vera Inst. of Just., The Perils of Probation: How Supervision Contributes to Jail Populations 29 (2021), https://www.ve​ra.org/downloads/publications/the-perils-of-probation.pdf [https://perma.cc/T9H8-YG5D] (advocating for “eliminating incarceration for technical violations”); Reagan Daly, Mackenzie Deary, Victoria Lawson & Pavithra Nagarajan, CUNY Inst. for State & Loc. Governance, Pathways to Success on Probation: Lessons Learned from the First Phase of the Reducing Revocations Challenge 30–31 (2021), https://static1.squarespace.com/static/5fcea962a1b4d​771ad256fcc/t/61707b8a29d1471381fbcce8/1634761610960/10192021+Reducing+Revocations+v4.pdf [https://perma.cc/K9X3-QB8F] (recommending “limit[ing] the circumstances under which formal technical violations can be filed”); Tonja Jacobi, Song Richardson & Gregory Barr, The Attrition of Rights Under Parole, 87 S. Cal. L. Rev. 887, 930 (2014) (arguing “prison even for technical violations . . . is problematic”); Cecelia Klingele, Rethinking the Use of Community Supervision, 103 J. Crim. L. & Criminology 1015, 1047 (2013) (supporting “barring revocation as a sanction for many noncriminal violations”); see also Vincent Schiraldi, Explainer: How ‘Technical Violations’ Drive Incarceration, The Appeal (Mar. 23, 2021), https://theappeal.org/the-lab/explainers/explainer-how-technical-violations-drive-incarceration/[https://perma.cc/8ZTH-WGYA]; Andrea Fenster, Technical Difficulties: D.C. Data Shows How Minor Supervision Violations Contribute to Excessive Jailing, Prison Pol’y Initiative (Oct. 28, 2020), https://www.prisonpolicy.org/b​log/2020/10/28/dc_technical_violations [https://perma.cc/U5PX-N2Y5] (same); Stephen Handelman, Recidivism’s Hidden Drivers: ‘Technical Violations’ of Probation or Parole, The Crime Rep. (Mar. 5, 2020), https://web.archive.org/web/20200927112600/https://thec​rimereport.org/2020/03/05/the-hidden-driver-of-recidivism-technical-violations-of-probation​-or-parole/ [https://perma.cc/G2AB-ZE7Z] (same); Eli Hager, At Least 61,000 Nationwide Are in Prison for Minor Parole Violations, The Marshall Project (Apr. 23, 2017, 10:00 PM), https://www.themarshallproject.org/2017/04/23/at-least-61-000-nationwide-are-in-prison-for-minor-parole-violations [https://perma.cc/F6NB-RFX4] (same). ↑
6. Press Release, Phila. Dist. Att’y’s Off., supra note 1. ↑
7. Lara Bazelon, Shon Hopwood, Jehan Gordon-Booth, Leslie Herod & Sydney Kamlager, The Just. Collaborative Sent’g Taskforce, Sample Legislation on Probation 7 (2020), https://30glxtj0jh81xn8rx26pr5af-wpengine.netdna-ssl.com/wp-content/uploads/2020/12/20.​10_Model-Policy-for-Probation-1.pdf [https://perma.cc/378H-XECN]; see also Klingele, supra note 5, at 1047–49 (describing legislative efforts to reduce punishments for technical violations). ↑
8. Final Priorities for Amendment Cycle, 83 Fed. Reg. 43956, 43956–57 (Aug. 28, 2018). ↑
9. Tracey Kyckelhahn & S. Alexander Maisel, U.S. Sent’g Comm’n, Revocations Among Federal Offenders 13 (2019), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2019/20190131_Revocations.pdf [https://perma.cc/5742-T3TQ]. ↑
10. Council of State Gov’t Just. Ctr., supra note 3. ↑
11. Marcy R. Podkopacz & Barry C. Field, The Back-Door to Prison: Waiver Reform, “Blended Sentencing,” and the Law of Unintended Consequences, 91 J. Crim. L. & Criminology 997, 1070 (2001). ↑
12. See Daly et al., supra note 5, at 15; ACLU Hum. Rts. Watch, Revoked: How Probation and Parole Feed Mass Incarceration in the U.S. 3 (2020), https://www.aclu.org/report/aclu-and-hrw-report-revoked-how-probation-and-parole-feed-mass-incarceration-united-states [https://perma.cc/TY3L-YD8F]. ↑
13. Carrie Pettus-Davis & Stephanie Kennedy, Inst. for Just. Rsch. and Dev., Going Back to Jail Without Committing a Crime: Early Findings from a Multi-State Trial 3 (2020), https://ijrd.csw.fsu.edu/sites/g/files/upcbnu1766/files/media/images/publication_pdfs/Going_Back_to_Jail.pdf [https://perma.cc/Y2Z8-RVLZ]. ↑
14. As Professor Cecelia Klingele observed, the distinction between criminal and technical violations does not always reflect “the severity of the conduct.” Klingele, supra note 5, at 1049. Minor crimes like “[d]isorderly conduct” may not “signify a true threat to the community,” while technical violations like a “pedophile who stalks the playground” can “involve dangerous behavior.” Id. ↑
15. Cf. Council of State Gov’t Just. Ctr., supra note 3 (reporting that technical violations account for approximately half of all state prison admissions for probation and parole revocations); Daly et al., supra note 5, at 20 (reporting that technical violations account for between 61% and 90% of all petitions to revoke probation in some jurisdictions). ↑
16. See, e.g., 18 U.S.C. § 3583(d) (federal supervised release); id. § 3563(a) (federal probation); id. § 4209(a) (1982) (federal parole); Fiona Doherty, Obey All Laws and Be Good: Probation and the Meaning of Recidivism, 104 Geo. L.J. 291, 301 (2016) (state probation); see also Neil P. Cohen, The Law of Probation and Parole § 8:1 (2021) (“Probation and parole orders routinely contain a condition which, written in general terms, prohibits offenders from violating the law. . . . This condition appears in both federal and state probation and parole requirements.”). ↑
17. Doherty, supra note 16, at 301–02. ↑
18. See infra Section II.B. ↑
19. Daly et al., supra note 5, at 9, 20. ↑
20. Id. at 20, 32. ↑
21. Id. at 32. ↑
22. James Forman Jr., Locking Up Our Own: Crime and Punishment in Black America 220 (2017). ↑
23. Id. at 228. ↑
24. See John Pfaff, Decarceration’s Blindspots, 16 Ohio St. J. Crim. L. 253, 265 (2019). ↑
25. Forman, supra note 22, at 228. ↑
26. See Council of State Gov’t Just. Ctr., supra note 3 (reporting that technical violations account for approximately half of all state prison admissions for probation and parole revocations); Daly et al., supra note 5, at 20 (reporting that technical violations account for between 61% and 90% of all petitions to revoke probation in some jurisdictions). ↑
27. Morrissey v. Brewer, 408 U.S. 471, 482 (1972). ↑
28. Gerstein v. Pugh, 420 U.S. 103, 114 (1975). ↑
29. Johnson v. United States, 529 U.S. 694, 709–10 (2000) (describing violators as “problem case[s] among problem cases”). ↑
30. I do not address probation, which is community supervision in lieu of imprisonment. See 18 U.S.C. § 3561(a); U.S. Sent’g Guidelines Manual § 7A2(a) (U.S. Sent’g Comm’n 2018). Probation is reserved for less serious crimes and imposed in less than 10% of cases. See 18 U.S.C. § 3561(a); U.S. Sent’g Comm’n, 2019 Annual Report and Sourcebook of Federal Sentencing Statistics 61 fig.6 (2019), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-and-sourcebooks/2019/2019-Annual-Report-and-Sourcebook.pdf. [https://perma.cc/AJ5N-TU7A]. ↑
31. See Doherty, supra note 16, at 298–300. ↑
32. See Frank O. Bowman, III, The Failure of the Federal Sentencing Guidelines: A Structural Analysis, 105 Colum. L. Rev. 1315, 1318, 1320 (2005). ↑
33. U.S. Sent’g Comm’n, Federal Probation and Supervised Release Violations 1, 12–13 (2020) [hereinafter Violations], https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2020/20200728_Violations.pdf. [https://perma.cc/J3VH-B9T2]. ↑

34. Id. at 12. Unfortunately, the Commission only collected data on the five years between 2013 to 2017, so we remain in the dark on revocations outside this time frame. ↑