Article

Property’s Boundaries

Property law has a boundary problem. Courts are routinely called upon to decide whether certain kinds of things can be owned—cells, genes, organs, gametes, embryos, corpses, personal data, and more. Under prevailing contemporary theories of property law, questions like these have no justiciable answers. Because property has no conceptual essence, they maintain, its boundaries are arbitrary—a flexible normative choice more properly legislative than judicial.

This Article instead offers a straightforward descriptive theory of property’s boundaries. The common law of property is legitimated by its basis in the concept of ownership, a descriptive relationship of absolute control that exists outside of the law. Ownership’s limits thus lie at the limits of absolute control—that which cannot in principle be the subject of human dominion cannot be owned. In short, this Article both offers a comprehensive explanation for why a conceptual theory of property’s limits matters and how one can be possible, and defends a substantive theory of the concept of ownership as control.

Under this theory, cells, organs, gametes, embryos, and corpses can be owned. But information—like genes and personal data—that cannot be controlled cannot be owned. Viewed through this lens, intellectual property—a challenge for any theory of property that appears to entail ownership in information—can be understood either as a statutory analogy or a rough approximation of the real but temporary control of information exercised by those who create or discover it.

Introduction

In October 2021, the estate of Henrietta Lacks sued Thermo Fisher Scientific.1 1.Civil Complaint & Request for Jury Trial, Lacks v. Thermo Fisher Sci. Inc., No. 1:21-cv-02524 (D. Md. filed Oct. 4, 2021) [hereinafter Lacks Complaint].Show More The underlying facts are by now well-known.2 2.See generally Rebecca Skloot, The Immortal Life of Henrietta Lacks (2010) (summarizing the Henrietta Lacks story).Show More On February 5, 1951, Ms. Lacks sought treatment for cervical cancer at Johns Hopkins Hospital.3 3.Lacks Complaint, supra note 1, at 2.Show More In the course of her treatment, physicians removed, without her consent, a portion of her tumor for research.4 4.Id.Show More The cells were found to have a stunning quality—they reproduced indefinitely outside the human body.5 5.Id. at 3.Show More For the first time, scientists could conduct research on mass-produced human cells.6 6.Id.Show More This cell-line, known as “HeLa” after its source, underwrote the biotechnology revolution and the immeasurable profits of companies—including Thermo Fisher—that have intellectual property in HeLa cells.7 7.Id. at 3–4.Show More But Ms. Lacks, who died shortly after the operation, never knew any of this, and her family has never legally owned any part of the HeLa cell line. This, the Lacks family’s complaint alleges, was “theft”—“this genetic material was stolen from Ms. Lacks.”8 8.Id. at 12. Although rhetorically describing the incident as “theft,” the complaint sounds in unjust enrichment. Id. at 12–13. Unjust enrichment is an equitable remedy whereby a plaintiff is entitled to the gains of a defendant “enriched by misconduct and who acts . . . with knowledge of the underlying wrong.” Restatement (Third) of Restitution and Unjust Enrichment § 51(3) (Am. L. Inst. 2011). It seems that the plaintiffs have three distinct theories of the underlying “wrong”—(1) “theft,” Lacks Complaint, supra note 1, at 12; (2) “assault,” id. at 5; and (3) violation of privacy, id. at 4. This Article only touches on the legal plausibility of the first—whether or not a claim for unjust enrichment on the basis of conversion is plausible. Lacks’s claim based on assault or violation of privacy remains independently plausible.Show More

The plaintiffs face an uphill battle convincing the court that Lacks’s doctors stole her cells. In the famous case Moore v. Regents of the University of California, the Supreme Court of California rejected a similar claim for conversion by a plaintiff whose spleen was used for research without his consent. The court observed the law “deal[s] with human biological materials as objects sui generis,” not subject to the “general law of personal property.”9 9.793 P.2d 479, 489 (Cal. 1990).Show More Human biological materials, the court suggested—organs, cells, gametes, and more—cannot be owned.10 10.Id. (“[T]he laws governing such things as human tissues, transplantable organs, blood, fetuses, pituitary glands, corneal tissue, and dead bodies deal with human biological materials as objects sui generis, regulating their disposition to achieve policy goals rather than abandoning them to the general law of personal property.” (footnotes omitted)).Show More

But why? After all, many people (maybe most) feel that they own their cells and genetic material, and that Henrietta Lacks owned hers.11 11.See, e.g., Barbara J. Evans, Barbarians at the Gate: Consumer-Driven Health Data Commons and the Transformation of Citizen Science, 42 Am. J.L. & Med. 651, 659 (2016) (revealing that in a 2014 survey on personal health data, only thirteen percent of respondents were agnostic to the question of ownership).Show More Others disagree.12 12.See, e.g., Henry H. Heng, HeLa Genome Versus Donor’s Genome, 501 Nature 167, 167 (2013) (“I contend that the continual divergence of chromosomal features (‘karyotype’) and DNA sequence in dynamic cancer-cell populations undermines debate over ownership of the HeLa cancer-cell line derived from Henrietta Lacks six decades ago.”).Show More Debates in the public sphere like this—about the boundaries of property law, about whether a kind of thing can be owned—are hardly limited to Henrietta Lacks and immortal cell lines. Indeed, we debate and litigate the ownership of organs,13 13.See, e.g., B. Björkman & S.O. Hansson, Bodily Rights and Property Rights, 32 J. Med. Ethics 209, 209 (2006) (“An underlying issue in these discussions is whether various types of biological material can be owned.”).Show More tissue samples,14 14.See, e.g., Shannon Cunningham, Kieran C. O’Doherty, Karine Sénécal, David Secko & Denise Avard, Public Concerns Regarding the Storage and Secondary Uses of Residual Newborn Bloodspots: An Analysis of Print Media, Legal Cases, and Public Engagement Activities, 6 J. Cmty. Genetics 117, 124 (2015) (“Across the public engagement activities we reviewed, numerous participants stated that parents have a right to retain ownership of their child’s blood samples and control over who has access to the specimens.”).Show More genetic information,15 15.See, e.g., Jon F. Merz & Mildred K. Cho, What Are Gene Patents and Why Are People Worried About Them?, 8 Cmty. Genetics 203, 203 (2005) (noting that “[n]umerous ethical concerns have been raised about the effects of [gene] patents on clinical medical practice as well as on research and development,” although “[n]early 30,000 human genes have been patented in the US”).Show More gametes and embryos,16 16.See, e.g., Radhika Rao, Property, Privacy, and the Human Body, 80 B.U. L. Rev. 359, 414 (2000) (“Courts appear utterly confused as to how to classify these objects, characterizing sperm and embryos variously as property, quasi-property, or not the subject of property rights at all but governed instead by precepts of privacy.”); see also Hecht v. Superior Court, 16 Cal. App. 4th 836, 850 (1993) (holding that a decedent “had an interest, in the nature of ownership,” permitting sperm to be bequeathed); David Horton, Indescendibility, 102 Calif. L. Rev. 543, 580–81 (2014) (discussing the extent to which Hecht supports the existence of property rights in sperm).Show More corpses,17 17.See, e.g., Ray D. Madoff, Immortality and the Law: The Rising Power of the American Dead 16–17 (2010).Show More digital data,18 18.See, e.g., David A. Dana & Nadav Shoked, Property’s Edges, 60 B.C. L. Rev. 753, 761 (2019) (“[O]ver the past few months, popular and legislative disputes over privacy on the Internet and the allocation of rights to information between users, websites, and providers[] have likewise extensively employed—somewhat thoughtlessly—the boundary-focused terms supposedly derived from traditional property law.”).Show More and much more. These debates arise whenever value is discovered within—or technology makes it possible to capture value in—something new.19 19.See, e.g., Meredith M. Render, The Law of the Body, 62 Emory L.J. 549, 569 (2013) [hereinafter Render, The Law of the Body] (noting that “when conditions are ripe—when we discover something new (or something that is useful in a new way) that is also ‘ownable’—our concept of property bends to accommodate the new entity”); Abraham Bell & Gideon Parchomovsky, A Theory of Property, 90 Cornell L. Rev. 531, 563 (2005) (“As society changes, the value derived from different assets is transformed, and therefore the objects of property law will change over time.”).Show More

Courts presented with these kinds of questions need a theory of property’s boundaries. But they would search largely in vain for one in contemporary property theory. Indeed, conventional legal wisdom has it that there are no conceptual answers to what can be owned.20 20.See, e.g., Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089, 1089–93 (1972) (arguing that society chooses to protect entitlements with “property rules” or “liability rules” in order to maximize welfare); Jessica L. Roberts, Progressive Genetic Ownership, 93 Notre Dame L. Rev. 1105, 1159–60 (2018) (arguing that the state should recognize individual ownership of genetic information because doing so would maximize human flourishing under Roberts’s pluralistic theory of human flourishing).Show More Instead, the law of property is widely understood to be an arbitrary “bundle of sticks”—a collection of rights and responsibilities designed to achieve exogenous social goals, not a coherent concept with determinable boundaries.21 21.See, e.g., Abraham Bell & Gideon Parchomovsky, Reconfiguring Property in Three Dimensions, 75 U. Chi. L. Rev. 1015, 1015 (2008) (“As any first-year student knows, modern theorists have savaged the idea of ‘absolute dominion’ and tend, instead, to view property as a ‘bundle of rights,’ . . . .”).Show More From this perspective, the question of what can be owned is a normative one. It is necessarily coterminous with questions about what should be owned, who should own what, and how ownership ought to be regulated.22 22.Cf. J.E. Penner, The Idea of Property in Law 106 (paperback ed. 2000) (“For most philosophers, the actual objects of property are uninteresting, and the real meat of the question about property is how we can justify unequal holdings.”).Show More In our system of popular sovereignty and separation of powers, these questions are inappropriate for judicial resolution. If the conventional legal wisdom is correct, we would need to adopt by statute a code of property’s boundaries.23 23.See infra Section II.A.Show More

This Article, in contrast, argues that the concept of ownership—which exists outside the law and from which the common law of property derives its legitimacy—offers a descriptive, properly judicial theory of the boundaries of property law. Ownership is a relationship characterized by absolute control, and it cannot exist where a person could not in principle exercise absolute control over something.24 24.See infra Section III.A.Show More This means that ownership can properly apply to anything over which control can in principle be exercised, but not to those things that it cannot be.25 25.See infra Part IV.Show More

This distinction illuminates many public and legal controversies about ownership. On the one hand, because it can be subject to absolute control, human biological matter—from organs and corpses to cells and embryos—can be owned.26 26.See infra Section IV.A.Show More We control, and therefore own, our bodies and their constituents. On the other hand, information that is in principle accessible to anyone and cannot be manipulated cannot be owned.27 27.See infra Section IV.B.Show More This means that human genetic information and personal data are not ownable. In cases such as Lacks’s, the theory tells us that when Ms. Lacks walked into the clinic for treatment, she owned the cells of her tumor.28 28.See, e.g., Thomas W. Merrill & Henry E. Smith, Property: Principles and Policies 57 (3d ed. 2017) (“[A]mong the ways that ownership can get started is for someone to possess a thing for the first time with the requisite intent.”).Show More But that is of course not really what her claim of theft is about.29 29.At least, it’s not what the rhetoric of the lawsuit is about. It is in fact possible to have a claim for unjust enrichment even if the only thing Lacks owned were her cells ab initio, as the derivation of the metaphysically distinct HeLa cell line may have been premised on the underlying wrong.Show More It’s the HeLa cell line—not Lacks’s cancer cells—from which the biotechnology companies have profited. HeLa is not metaphysically identical to Lacks’s cancer cells—what they share is genetic information.30 30.See generally Heng, supra note 12.Show More Because information, genetic or otherwise, cannot be owned, Lacks’s estate has never owned the HeLa line.

The theory of property’s boundaries offered in this Article is descriptive, not normative. It is a theory of the entailments of ownership as the concept actually exists outside the law, not a claim about whether the outcomes it suggests are good or bad, or whether we ought to have a common law of property organized around the concept of ownership in the first place. As such, the theory is entirely compatible with the possibility that people like Ms. Lacks have remedies in other areas of law—privacy, informed consent, or intentional torts, most prominently.31 31.Indeed, in Moore, the court held that Moore had stated a claim for breach of informed consent after dismissing Moore’s claim for conversion. See Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 497 (Cal. 1990).Show More Indeed, it is also entirely legitimate for legislatures to codify structures analogous to ownership by statute (as discussed below, this is one way to understand intellectual property).32 32.See infra Section IV.C.Show More But this theory tells us the boundaries of the judge-made law of property—so long as judges ground their decisions on the concept of ownership, they might get it wrong, but they do not act illegitimately. And this matters because, for better or worse, courts are in fact regularly called upon to adjudicate whether something can be owned.33 33.See, e.g., Lacks Complaint, supra note 1, at 13; Moore, 793 P.2d at 488–89; Wash. Univ. v. Catalona, 490 F.3d 667, 670 (8th Cir. 2007); Greenberg v. Mia. Child.’s Hosp. Rsch. Inst., Inc., 264 F. Supp. 2d 1064, 1074 (S.D. Fla. 2003) (holding that individuals with Canavan disease did not have an ownership interest in the gene that causes Canavan disease isolated from their tissue samples); Szafranski v. Dunston, 993 N.E.2d 502, 517–18 (Ill. App. Ct. 2013) (resolving a dispute of ownership between ex-boyfriend and ex-girlfriend over embryos they had jointly created).Show More

This Article builds on growing scholarly criticism of the “bundle of sticks” model of property.34 34.See, e.g., Henry E. Smith, Property as the Law of Things, 125 Harv. L. Rev. 1691, 1695 (2012) (criticizing the bundle theory); J.E. Penner, Property Rights: A Re-Examination 3–4 (2020) (same).Show More Indeed, although that model remains predominate,35 35.See, e.g., Eric R. Claeys, Property, Concepts, and Functions, 60 B.C. L. Rev. 1, 10 (2019) [hereinafter Claeys, Property, Concepts, and Functions] (“Bundle views probably remain dominant both in legal scholarship and in analytical-philosophy scholarship.”).Show More the view of property law as essentially arbitrary and normative has come under sustained attack over the past several decades.36 36.See, e.g., Jane B. Baron, Property as Control: The Case of Information, 18 Mich. Telecomms. & Tech. L. Rev. 367, 384 (2012) (noting that “the bundle-of-rights metaphor . . . has been under particularly heavy weather recently”); see also Shane Nicholas Glackin, Back to Bundles: Deflating Property Rights, Again, 20 Legal Theory 1, 1 (2014) (“My aim in this paper may, at first glance, strike the reader as somewhat odd. It is a defense of a theory of property rights that after all has been prevalent among legal theorists for most of the last century and that is taught as a matter of routine in most undergraduate property-law courses in order ‘to disabuse entering law students of their primitive lay notions regarding ownership.’”).Show More Moreover, some scholars have outlined conceptual theories of property’s boundaries analogous to this Article’s, although they offer different views of the concept’s substance.37 37.See Thomas W. Merrill, Property and the Right to Exclude, 77 Neb. L. Rev. 730, 753 (1998) [hereinafter Merrill, Property and the Right to Exclude] (arguing that the essence of property is exclusion); Arthur Ripstein, Possession and Use, in Philosophical Foundations of Property Law 156, 156 (James Penner & Henry E. Smith eds., 2013) (same for “exclusive use”); Penner, supra note 22, at 111 (arguing that “separability” delimits the boundaries of the concept of property); John Locke, Two Treatises of Government 185 (The Legal Classic Libr. 1994) (1690) (arguing that labor is the essence of property); Bart J. Wilson, The Property Species: Mine, Yours, and the Human Mind 19 (2020), https://doi.org/​10.1093/oso/9780190936785.003.0001 [https://perma.cc/PX8D-CW8B] (arguing that an irreducible concept of “mine” organizes property law).Show More Building within this intellectual movement, this Article offers a comprehensive explanation for why a conceptual theory of property’s boundaries matters and how it is possible.38 38.See infra Part II.Show More Further, it defends a substantive theory of the concept of ownership as control—and ownership’s boundaries at the boundaries of control—as opposed to the alternatives.39 39.See infra Part III.Show More

The argument proceeds in four Parts. In Part I, I canvass the development of contemporary property theory and illustrate the extent to which still-prevailing theories conflate theories about what can be owned with what should be, rendering questions about the boundaries of property fundamentally legislative.

In Part II, I lay the groundwork for a conceptual theory of property’s boundaries by explaining why such a theory matters and how it could be possible. In short, the extra-legal existence of concepts relied on by the common law legitimates common law law-making consistent with democratic theory, and the concept of ownership could exist metaphysically, psychologically, or socially.

In Part III, I outline a theory of property law as grounded in an extra-legal concept of ownership understood as absolute control. I argue that ownership—absolute control—is a determinate category. And I situate ownership as control in relation to other conceptual theories of property and show how it fares better at explaining the concept.

Finally, in Part IV, I apply this theory to some contemporary boundary challenges in property law, bioethics, and law and technology. I find that, under the theory, such things as organs, gametes, tissue samples, organisms, and corpses fall within property’s conceptual domain. In contrast, genetic information, gene sequences, information derived from tissue samples, and personal data cannot conceptually be subject to property law. Moreover, I apply the theory to the most challenging case recognized in positive law at the boundaries of ownership—intellectual property—and find that it fares plausibly, if roughly.

  1. Civil Complaint & Request for Jury Trial, Lacks v. Thermo Fisher Sci. Inc., No. 1:21-cv-02524 (D. Md. filed Oct. 4, 2021) [hereinafter Lacks Complaint]. ↑
  2. See generally Rebecca Skloot, The Immortal Life of Henrietta Lacks (2010) (summarizing the Henrietta Lacks story). ↑
  3. Lacks Complaint, supra note 1, at 2. ↑
  4. Id. ↑
  5. Id. at 3. ↑
  6. Id. ↑
  7. Id. at 3–4. ↑
  8. Id. at 12. Although rhetorically describing the incident as “theft,” the complaint sounds in unjust enrichment. Id. at 12–13. Unjust enrichment is an equitable remedy whereby a plaintiff is entitled to the gains of a defendant “enriched by misconduct and who acts . . . with knowledge of the underlying wrong.” Restatement (Third) of Restitution and Unjust Enrichment § 51(3) (Am. L. Inst. 2011). It seems that the plaintiffs have three distinct theories of the underlying “wrong”—(1) “theft,” Lacks Complaint, supra note 1, at 12; (2) “assault,” id. at 5; and (3) violation of privacy, id. at 4. This Article only touches on the legal plausibility of the first—whether or not a claim for unjust enrichment on the basis of conversion is plausible. Lacks’s claim based on assault or violation of privacy remains independently plausible. ↑
  9. 793 P.2d 479, 489 (Cal. 1990). ↑
  10. Id. (“[T]he laws governing such things as human tissues, transplantable organs, blood, fetuses, pituitary glands, corneal tissue, and dead bodies deal with human biological materials as objects sui generis, regulating their disposition to achieve policy goals rather than abandoning them to the general law of personal property.” (footnotes omitted)). ↑
  11.  See, e.g., Barbara J. Evans, Barbarians at the Gate: Consumer-Driven Health Data Commons and the Transformation of Citizen Science, 42 Am. J.L. & Med. 651, 659 (2016) (revealing that in a 2014 survey on personal health data, only thirteen percent of respondents were agnostic to the question of ownership). ↑
  12. See, e.g., Henry H. Heng, HeLa Genome Versus Donor’s Genome, 501 Nature 167, 167 (2013) (“I contend that the continual divergence of chromosomal features (‘karyotype’) and DNA sequence in dynamic cancer-cell populations undermines debate over ownership of the HeLa cancer-cell line derived from Henrietta Lacks six decades ago.”). ↑
  13. See, e.g., B. Björkman & S.O. Hansson, Bodily Rights and Property Rights, 32 J. Med. Ethics 209, 209 (2006) (“An underlying issue in these discussions is whether various types of biological material can be owned.”). ↑
  14. See, e.g., Shannon Cunningham, Kieran C. O’Doherty, Karine Sénécal, David Secko & Denise Avard, Public Concerns Regarding the Storage and Secondary Uses of Residual Newborn Bloodspots: An Analysis of Print Media, Legal Cases, and Public Engagement Activities, 6 J. Cmty. Genetics 117, 124 (2015) (“Across the public engagement activities we reviewed, numerous participants stated that parents have a right to retain ownership of their child’s blood samples and control over who has access to the specimens.”). ↑
  15. See, e.g., Jon F. Merz & Mildred K. Cho, What Are Gene Patents and Why Are People Worried About Them?, 8 Cmty. Genetics 203, 203 (2005) (noting that “[n]umerous ethical concerns have been raised about the effects of [gene] patents on clinical medical practice as well as on research and development,” although “[n]early 30,000 human genes have been patented in the US”). ↑
  16. See, e.g., Radhika Rao, Property, Privacy, and the Human Body, 80 B.U. L. Rev. 359, 414 (2000) (“Courts appear utterly confused as to how to classify these objects, characterizing sperm and embryos variously as property, quasi-property, or not the subject of property rights at all but governed instead by precepts of privacy.”); see also Hecht v. Superior Court, 16 Cal. App. 4th 836, 850 (1993) (holding that a decedent “had an interest, in the nature of ownership,” permitting sperm to be bequeathed); David Horton, Indescendibility, 102 Calif. L. Rev. 543, 580–81 (2014) (discussing the extent to which Hecht supports the existence of property rights in sperm). ↑
  17. See, e.g., Ray D. Madoff, Immortality and the Law: The Rising Power of the American Dead 16–17 (2010). ↑
  18. See, e.g., David A. Dana & Nadav Shoked, Property’s Edges, 60 B.C. L. Rev. 753, 761 (2019) (“[O]ver the past few months, popular and legislative disputes over privacy on the Internet and the allocation of rights to information between users, websites, and providers[] have likewise extensively employed—somewhat thoughtlessly—the boundary-focused terms supposedly derived from traditional property law.”). ↑
  19. See, e.g., Meredith M. Render, The Law of the Body, 62 Emory L.J. 549, 569 (2013) [hereinafter Render, The Law of the Body] (noting that “when conditions are ripe—when we discover something new (or something that is useful in a new way) that is also ‘ownable’—our concept of property bends to accommodate the new entity”); Abraham Bell & Gideon Parchomovsky, A Theory of Property, 90 Cornell L. Rev. 531, 563 (2005) (“As society changes, the value derived from different assets is transformed, and therefore the objects of property law will change over time.”). ↑
  20. See, e.g., Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089, 1089–93 (1972) (arguing that society chooses to protect entitlements with “property rules” or “liability rules” in order to maximize welfare); Jessica L. Roberts, Progressive Genetic Ownership, 93 Notre Dame L. Rev. 1105, 1159–60 (2018) (arguing that the state should recognize individual ownership of genetic information because doing so would maximize human flourishing under Roberts’s pluralistic theory of human flourishing). ↑
  21. See, e.g., Abraham Bell & Gideon Parchomovsky, Reconfiguring Property in Three Dimensions, 75 U. Chi. L. Rev. 1015, 1015 (2008) (“As any first-year student knows, modern theorists have savaged the idea of ‘absolute dominion’ and tend, instead, to view property as a ‘bundle of rights,’ . . . .”). ↑
  22. Cf. J.E. Penner, The Idea of Property in Law 106 (paperback ed. 2000) (“For most philosophers, the actual objects of property are uninteresting, and the real meat of the question about property is how we can justify unequal holdings.”). ↑
  23. See infra Section II.A. ↑
  24. See infra Section III.A. ↑
  25. See infra Part IV. ↑
  26. See infra Section IV.A. ↑
  27. See infra Section IV.B. ↑
  28. See, e.g., Thomas W. Merrill & Henry E. Smith, Property: Principles and Policies 57 (3d ed. 2017) (“[A]mong the ways that ownership can get started is for someone to possess a thing for the first time with the requisite intent.”). ↑
  29. At least, it’s not what the rhetoric of the lawsuit is about. It is in fact possible to have a claim for unjust enrichment even if the only thing Lacks owned were her cells ab initio, as the derivation of the metaphysically distinct HeLa cell line may have been premised on the underlying wrong. ↑
  30. See generally Heng, supra note 12. ↑
  31. Indeed, in Moore, the court held that Moore had stated a claim for breach of informed consent after dismissing Moore’s claim for conversion. See Moore v. Regents of the Univ. of Cal., 793 P.2d 479, 497 (Cal. 1990). ↑
  32. See infra Section IV.C. ↑
  33. See, e.g., Lacks Complaint, supra note 1, at 13; Moore, 793 P.2d at 488–89; Wash. Univ. v. Catalona, 490 F.3d 667, 670 (8th Cir. 2007); Greenberg v. Mia. Child.’s Hosp. Rsch. Inst., Inc., 264 F. Supp. 2d 1064, 1074 (S.D. Fla. 2003) (holding that individuals with Canavan disease did not have an ownership interest in the gene that causes Canavan disease isolated from their tissue samples); Szafranski v. Dunston, 993 N.E.2d 502, 517–18 (Ill. App. Ct. 2013) (resolving a dispute of ownership between ex-boyfriend and ex-girlfriend over embryos they had jointly created). ↑
  34. See, e.g., Henry E. Smith, Property as the Law of Things, 125 Harv. L. Rev. 1691, 1695 (2012) (criticizing the bundle theory); J.E. Penner, Property Rights: A Re-Examination 3–4 (2020) (same). ↑
  35. See, e.g., Eric R. Claeys, Property, Concepts, and Functions, 60 B.C. L. Rev. 1, 10 (2019) [hereinafter Claeys, Property, Concepts, and Functions] (“Bundle views probably remain dominant both in legal scholarship and in analytical-philosophy scholarship.”). ↑
  36.  See, e.g., Jane B. Baron, Property as Control: The Case of Information, 18 Mich. Telecomms. & Tech. L. Rev. 367, 384 (2012) (noting that “the bundle-of-rights metaphor . . . has been under particularly heavy weather recently”); see also Shane Nicholas Glackin, Back to Bundles: Deflating Property Rights, Again, 20 Legal Theory 1, 1 (2014) (“My aim in this paper may, at first glance, strike the reader as somewhat odd. It is a defense of a theory of property rights that after all has been prevalent among legal theorists for most of the last century and that is taught as a matter of routine in most undergraduate property-law courses in order ‘to disabuse entering law students of their primitive lay notions regarding ownership.’”). ↑
  37. See Thomas W. Merrill, Property and the Right to Exclude, 77 Neb. L. Rev. 730, 753 (1998) [hereinafter Merrill, Property and the Right to Exclude] (arguing that the essence of property is exclusion); Arthur Ripstein, Possession and Use, in Philosophical Foundations of Property Law 156, 156 (James Penner & Henry E. Smith eds., 2013) (same for “exclusive use”); Penner, supra note 22, at 111 (arguing that “separability” delimits the boundaries of the concept of property); John Locke, Two Treatises of Government 185 (The Legal Classic Libr. 1994) (1690) (arguing that labor is the essence of property); Bart J. Wilson, The Property Species: Mine, Yours, and the Human Mind 19 (2020), https://doi.org/​10.1093/oso/9780190936785.003.0001 [https://perma.cc/PX8D-CW8B] (arguing that an irreducible concept of “mine” organizes property law). ↑
  38. See infra Part II. ↑

  39. See infra Part III. ↑

Government’s Religious Hospitals

States are not supposed to own or operate religious institutions, but they now do. This Article uncovers that across the country, church and state have merged, joint ventured, and contracted to form public, yet religious, hospitals. It traces the origins of these curious institutions to dramatic transformations over the last forty years in the political economy of healthcare and the constitutional doctrine of church and state. At stake are the foundational commitments of secular government to equal citizenship and religious freedom.

Yet, constitutional litigation offers limited recourse. In an increasingly religious marketplace, only sustained attention to the political economy can reverse the confluence of church and state. This Article proposes strategies to unite religion law and political economy and to move from religious domination to pluralism and from discrimination to equality. As government-religious institutions proliferate beyond healthcare—in schools, prisons, police departments, and child-welfare agencies—reform efforts must take on broader trends toward consolidation, privatization, and religionization of the economy.

Introduction

Waking up in a hospital, you spy a religious painting at the foot of the bed. The doctors who rush in wear white coats with the names of a religious figure and of the state. Your treatment options, they tell you, must comply with the faith tradition. Clerics on the ethics committee will approve your care. As you recover, you learn that the government owns the hospital, pays the staff, and puts the state seal on the front of the building. On the board of directors, some seats are reserved for government bureaucrats, others for members in good standing of the Church.

This experience could describe hospital care in many countries around the world. But the United States is not known for such tight-knit relationships between any church and the state. Under the Establishment Clause, governments are not supposed to own or operate religious institutions. They are not expected to impose religious tests for public office or adopt a denomination as their own.

Nevertheless, they have. This Article reveals that across the country, church and state have fused in powerful entities that deliver critical services. The government’s religious hospitals are state-governed, state-run, and/or state-owned. But religion permeates their halls. Faith dictates their charitable missions and ethical decisions. Under the banner of the state, patients may be denied healthcare for religious reasons. Public employees must display religious messages and conform their conduct to religious rules. Positions of governance and leadership, typically open to all in public hospitals, are reserved for individuals who belong to particular sects.

Sometimes the state owns the religious institution outright—like the University of Alabama’s “faith-based health system”1 1.See Warren Averett CPAs and Advisors, The Health Care Authority for Baptist Health, An Affiliate of UAB Health System: Consolidated Financial Statements, Required Supplementary Information, and Additional Information 3 (2020), https://www.legisl​ature.state.al.us/pdf/eopa/audit_reports/ExaminersPDFFiles/5956_21-091-CPA-Baptist%20​HCA.pdf [https://perma.cc/R3XE-J372] [hereinafter Baptist Health Financials].Show More with a mission of “witness[ing] to the love of God through Jesus Christ.”2 2.See Spiritual Care, Baptist Health, https://www.baptistfirst.org/patients-and-visitors/spi​ritual-care/ [https://perma.cc/6XEB-3W7U] (last visited Oct. 17, 2022).Show More Sometimes the religious and state entities become joint venturers—like Trinity Health and the University of Michigan, which agreed to run a hospital “consistent with the teachings of the Roman Catholic Church.”3 3.Amended and Restated Bylaws of St. Joseph Mercy Chelsea, Inc., art. I, § 3, art. II, § 1 [hereinafter Amended and Restated Bylaws] (on file with author).Show More Other times, a dense network of operational, managerial, or other relationships connects church and government—as at the University of Texas, the University of California, and numerous public health districts, where clinical staff and medical students must conform to religious teachings against abortion, contraception, fertility treatments, and LGBTQ-affirming care.4 4.See infra Section I.D.Show More

So how did we end up with institutions that so thoroughly merge public and religious? This Article argues that the answer lies in dramatic transformations in healthcare’s political economy and in Religion Clause doctrine over the last forty years. Neoliberalism made government-religious hospitals economically and politically attractive during a period when the Supreme Court’s erosion of the Establishment Clause made them legally plausible.5 5.Like other contested concepts, there are debates about the term’s core meaning. We focus on two central strands of neoliberal political economy—privatizing social services and valorizing market ordering over democratic governance. See David Singh Grewal & Jedediah Purdy, Introduction: Law and Neoliberalism, 77 Law & Contemp. Probs. 1, 6 (2014) (discussing the definition of neoliberalism).Show More These institutions, joining government authority with religious domination, undermine religious freedom and threaten equal citizenship in a pluralistic society.

From the 1980s onward, policies favoring austerity and privatization became ascendant and decimated the public sector. Public hospitals—a mainstay of cities and a natural home for public universities’ medical faculties—closed their doors or privatized as governments divested.6 6.See George Aumoithe, Dismantling the Safety-Net Hospital: The Construction of “Underutilization” and Scarce Public Hospital Care, 48 J. Urb. Hist. 1, 2–3 (2021); Michelle Ko, Jack Needleman, Kathryn Pitkin Derose, Miriam J. Laugesen & Ninez A. Ponce, Residential Segregation and the Survival of U.S. Urban Public Hospitals, 71 Med. Care Res. & Rev. 243, 244 (2014).Show More Meanwhile, rising costs prompted private hospitals to engage in a relentless drive for revenue.7 7.See, e.g., Andrew T. Simpson, The Medical Metropolis: Health Care and Economic Transformation in Pittsburgh and Houston 121 (2019) (“During the 1980s, 1990s, and 2000s, not-for-profit leaders not only drew organizational inspiration from the for-profit sector by pursuing a wave of mergers and acquisitions . . . , but were also more willing to speak in a language that echoed their corporate counterparts.”).Show More They merged and consolidated at an unprecedented and accelerating rate, nearly eradicating competition in hospital markets.8 8.See Jonathan B. Baker, The Antitrust Analysis of Hospital Mergers and the Transformation of the Hospital Industry, 51 Law & Contemp. Probs. 93, 93 (1988) (“During the early 1980s, acquisitions or consolidations occurred at the rate of roughly two hundred per year, dramatically higher than the yearly rates of fifty in 1972 and five in 1961.”).Show More

But healthcare’s political economy tells only part of the story.9 9.We use the term “political economy” to mean “the relation of politics to the economy, understanding that the economy is always already political in both its origins and its consequences.” Jedediah Britton-Purdy, David Singh Grewal, Amy Kapczynski & K. Sabeel Rahman, Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis, 129 Yale L.J. 1784, 1792 (2020).Show More A contemporaneous revolution in Establishment Clause doctrine abandoned principles of separationism and invited more intensive church-state partnerships.10 10.See infra Section III.B.Show More Not long ago, the government-religious hospitals we describe would have encountered rather obvious constitutional obstacles.11 11.See infra Section III.A.Show More Under the First Amendment’s Establishment Clause, a “wall of separation” was supposed to hold church and state apart.12 12.Letter from Thomas Jefferson to the Danbury Baptists (Jan. 1, 1802), in 36 The Papers of Thomas Jefferson 258, 258 (Barbara B. Oberg ed., 2009).Show More States nonetheless could fund religiously affiliated hospitals, provided they delivered secular healthcare services, refrained from discrimination in hiring, and committed to respecting their patients’ consciences.13 13.See infra notes 207–38 and accompanying text.Show More But in the last few decades, courts dismantled a number of constitutional constraints on aid to sectarian institutions. By the early 2000s, Establishment Clause doctrine aligned with neoliberal economic policies to galvanize public partnerships with faith-infused institutions. Privatization took on a religious hue.

Faced with demands for healthcare provision and education, cities, counties, and public universities stepped into this constitutionally unsettled space. And they found few options for partnership. No longer was it common to find the public hospitals that once hosted safety-net services and academic medicine. Trends toward consolidation, which escalated with each passing decade, left nearly all cities with highly concentrated hospital markets.14 14.Ninety-five percent of metropolitan statistical areas have highly concentrated hospital markets. Jaime S. King et al., Preventing Anticompetitive Healthcare Consolidation: Lessons from Five States 1, 6–7 (June 2020), https://sourceonhealthcare.org/wp-content/uploads/​2020/06/PreventingAnticompetitiveHealthcareConsolidation.pdf [https://perma.cc/5RRX-87​FJ].Show More The secular options assumed by judges and policymakers had dwindled.

Often, commercially successful religious entities were among the few potential joint venturers and partners. Most commonly, those entities were Catholic. Due to their “hierarchy and interconnectedness,” as well as their longstanding significant market share, Catholic healthcare systems had proved well-positioned to consolidate market power as neoliberalism took off.15 15.Allison Roberts, Selling Salvation: Catholic Hospitals in the Healthcare Marketplace, Canopy Forum (2019), https://canopyforum.org/2019/12/19/selling-salvation-catholic-hospi​tals-in-the-healthcare-marketplace-by-allison-roberts/ [https://perma.cc/T99U-54PC]. Today, Catholic systems hold a dominant or high market share in more than one-third of U.S. counties, where 38.7% of women of reproductive age live. Coleman Drake, Marian Jarlenski, Yuehan Zhang & Daniel Polsky, Market Share of US Catholic Hospitals and Associated Geographic Network Access to Reproductive Health Services, 3 JAMA Network Open 1, 6 (2020).Show More And these religious partners, once motivated to claim nondiscrimination, now typically insisted on a more thickly sectarian identity.16 16.Melinda Cooper, Family Values: Between Neoliberalism and the New Social Conservatism 271–73 (2017) (detailing this shift in social service providers and government’s role); Stephen Monsma, Putting Faith in Partnerships 270–73 (2009) (describing empirically the spectrum of religious social services from deeply sectarian and faith-infused to more ecumenical); Barbra Mann Wall, American Catholic Hospitals: A Century of Changing Markets and Missions 181–86 (2011) (describing Catholic hierarchy’s increasing extent and rigidity of control over Catholic hospitals and their conflicts with the women religious traditionally sponsoring the hospitals).Show More In this landscape, governments created new institutions where secular and sacred, public and private, share governance, ownership, and operation.

Depending on one’s point of view, the central problem of these hospitals might be privatization of public services, restriction of healthcare access, or discrimination based on sex. While we are concerned about each of these issues, our focus is on the threat to religious freedom as dominance in healthcare has been converted into religious domination backed not only by private power but by the authority of the government.17 17.For an extended argument against converting power in one social sphere into domination in another, see Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (1983).Show More This confluence undermines equal citizenship and religious freedom in distinct and novel ways.

The promise of secular government is that equal membership in the political community will not depend on one’s religion and that the state will not impose religion on its citizens.18 18.See Christopher L. Eisgruber & Lawrence G. Sager, Religious Freedom and the Constitution 52–53 (2007); Alan Schwarz, No Imposition of Religion: The Establishment Clause Value, 77 Yale L.J. 692, 694–95 (1968); James Madison, Memorial and Remonstrance Against Religious Assessments (June 20, 1785), in James Madison: Writings 29, 29–36 (Jack N. Rakove ed., 1999); Thomas Jefferson, A Bill for Establishing Religious Freedom, in 2 The Papers of Thomas Jefferson 545, 546 (Julian P. Boyd ed., 1950).Show More Government’s institutions will be open to all, controlled by the people, and able to give public reasons for decisions.19 19.See generally Micah Schwartzman, The Sincerity of Public Reason, 19 J. Pol. Phil. 375 (2011) (discussing the idea of public reason); John Rawls, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765 (1997) (same).Show More America’s religious churches and charities, by contrast, can serve co-religionists, discriminate in their choice of leaders, and give religious reasons that people of other faiths cannot understand.20 20.See Ira C. Lupu & Robert W. Tuttle, Secular Government, Religious People 73 (2014).Show More

Government-religious hospitals upend this settlement and confound theories on both the left and the right about the relationship between church and state. Across the political spectrum, religion law scholars assume the existence of secular options and the absence of religious domination in the marketplace.21 21.See, e.g., Kent Greenawalt, When Free Exercise and Nonestablishment Conflict 69 (2017) (“If the government is the direct and primary source of funding for a program, religious discrimination by an organization in its employment should probably be regarded as unconstitutional, just as it would be for the government itself.”); Thomas C. Berg, Religious Accommodation and the Welfare State, 38 Harv. J.L. & Gender 104, 150–51 (2015) (“It is sensible to rely in some part on the workings of markets to achieve accommodation’s purpose.”).Show More They broadly agree that equal membership in the political community cannot depend on one’s religion and that the state cannot prefer any denomination. One need not be a strict separationist to draw the line at a state institution that proclaims a denominational identity, imposes religious tests, and uses religious reasons.

The embrace of joint church-state institutions may not be inexorable. Preserving principles of secular government in an increasingly religious marketplace is still possible, if not through constitutional litigation, then by addressing broader trends toward consolidation, privatization, and religionization of the economy. This Article considers a range of concrete reform measures, from embracing competition policy to state provision of social services to transacting for church-state separation. In combination, these reforms would move, albeit incrementally, from religious domination toward pluralism and from religious preference toward equality.

This Article proceeds in four Parts. Examining articles of incorporation, asset purchase agreements, and management contracts, Part I explores the details of government-religious hospitals and presents a rough taxonomy of the forms they take. Parts II and III argue that major shifts in healthcare’s political economy and in Religion Clause doctrine over the last forty years together spurred the merger of church and state. The establishment of government-owned, -directed, and -operated religious hospitals came to threaten equal citizenship and religious freedom. Part IV turns to reforms. It demonstrates how antitrust enforcement, public options, and public utility regulation could reshape the political economy to remedy and forestall government-religious hospitals.

The setting of our law and political economy tale is the hospital sector, but evidence mounts that government-religious institutions may exist elsewhere. The legacy of neoliberalism, with its emphasis on privatization, drove and continues to drive religious-public collaborations—in schools, prisons, police departments, child-welfare agencies, and beyond.22 22.See infra notes 379–83 and accompanying text.Show More Alliances between religious and economic conservatives have generated transfers of public funds, services, and decision-making to religious institutions. And as in the hospital sector, seemingly unrelated changes in constitutional doctrine increasingly create a path toward merger of church and state.

  1. See Warren Averett CPAs and Advisors, The Health Care Authority for Baptist Health, An Affiliate of UAB Health System: Consolidated Financial Statements, Required Supplementary Information, and Additional Information 3 (2020), https://www.legisl​ature.state.al.us/pdf/eopa/audit_reports/ExaminersPDFFiles/5956_21-091-CPA-Baptist%20​HCA.pdf [https://perma.cc/R3XE-J372] [hereinafter Baptist Health Financials]. ↑
  2.  See Spiritual Care, Baptist Health, https://www.baptistfirst.org/patients-and-visitors/spi​ritual-care/ [https://perma.cc/6XEB-3W7U] (last visited Oct. 17, 2022). ↑
  3. Amended and Restated Bylaws of St. Joseph Mercy Chelsea, Inc., art. I, § 3, art. II, § 1 [hereinafter Amended and Restated Bylaws] (on file with author). ↑
  4. See infra Section I.D. ↑
  5. Like other contested concepts, there are debates about the term’s core meaning. We focus on two central strands of neoliberal political economy—privatizing social services and valorizing market ordering over democratic governance. See David Singh Grewal & Jedediah Purdy, Introduction: Law and Neoliberalism, 77 Law & Contemp. Probs. 1, 6 (2014) (discussing the definition of neoliberalism). ↑
  6.  See George Aumoithe, Dismantling the Safety-Net Hospital: The Construction of “Underutilization” and Scarce Public Hospital Care, 48 J. Urb. Hist. 1, 2–3 (2021); Michelle Ko, Jack Needleman, Kathryn Pitkin Derose, Miriam J. Laugesen & Ninez A. Ponce, Residential Segregation and the Survival of U.S. Urban Public Hospitals, 71 Med. Care Res. & Rev. 243, 244 (2014). ↑
  7.  See, e.g., Andrew T. Simpson, The Medical Metropolis: Health Care and Economic Transformation in Pittsburgh and Houston 121 (2019) (“During the 1980s, 1990s, and 2000s, not-for-profit leaders not only drew organizational inspiration from the for-profit sector by pursuing a wave of mergers and acquisitions . . . , but were also more willing to speak in a language that echoed their corporate counterparts.”). ↑
  8. See Jonathan B. Baker, The Antitrust Analysis of Hospital Mergers and the Transformation of the Hospital Industry, 51 Law & Contemp. Probs. 93, 93 (1988) (“During the early 1980s, acquisitions or consolidations occurred at the rate of roughly two hundred per year, dramatically higher than the yearly rates of fifty in 1972 and five in 1961.”). ↑
  9. We use the term “political economy” to mean “the relation of politics to the economy, understanding that the economy is always already political in both its origins and its consequences.” Jedediah Britton-Purdy, David Singh Grewal, Amy Kapczynski & K. Sabeel Rahman, Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis, 129 Yale L.J. 1784, 1792 (2020). ↑
  10. See infra Section III.B. ↑
  11. See infra Section III.A. ↑
  12. Letter from Thomas Jefferson to the Danbury Baptists (Jan. 1, 1802), in 36 The Papers of Thomas Jefferson 258, 258 (Barbara B. Oberg ed., 2009). ↑
  13. See infra notes 207–38 and accompanying text. ↑
  14. Ninety-five percent of metropolitan statistical areas have highly concentrated hospital markets. Jaime S. King et al., Preventing Anticompetitive Healthcare Consolidation: Lessons from Five States 1, 6–7 (June 2020), https://sourceonhealthcare.org/wp-content/uploads/​2020/06/PreventingAnticompetitiveHealthcareConsolidation.pdf [https://perma.cc/5RRX-87​FJ]. ↑
  15. Allison Roberts, Selling Salvation: Catholic Hospitals in the Healthcare Marketplace, Canopy Forum (2019), https://canopyforum.org/2019/12/19/selling-salvation-catholic-hospi​tals-in-the-healthcare-marketplace-by-allison-roberts/ [https://perma.cc/T99U-54PC]. Today, Catholic systems hold a dominant or high market share in more than one-third of U.S. counties, where 38.7% of women of reproductive age live. Coleman Drake, Marian Jarlenski, Yuehan Zhang & Daniel Polsky, Market Share of US Catholic Hospitals and Associated Geographic Network Access to Reproductive Health Services, 3 JAMA Network Open 1, 6 (2020). ↑
  16.  Melinda Cooper, Family Values: Between Neoliberalism and the New Social Conservatism 271–73 (2017) (detailing this shift in social service providers and government’s role); Stephen Monsma, Putting Faith in Partnerships 270–73 (2009) (describing empirically the spectrum of religious social services from deeply sectarian and faith-infused to more ecumenical); Barbra Mann Wall, American Catholic Hospitals: A Century of Changing Markets and Missions 181–86 (2011) (describing Catholic hierarchy’s increasing extent and rigidity of control over Catholic hospitals and their conflicts with the women religious traditionally sponsoring the hospitals). ↑
  17. For an extended argument against converting power in one social sphere into domination in another, see Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (1983). ↑
  18.  See Christopher L. Eisgruber & Lawrence G. Sager, Religious Freedom and the Constitution 52–53 (2007); Alan Schwarz, No Imposition of Religion: The Establishment Clause Value, 77 Yale L.J. 692, 694–95 (1968); James Madison, Memorial and Remonstrance Against Religious Assessments (June 20, 1785), in James Madison: Writings 29, 29–36 (Jack N. Rakove ed., 1999); Thomas Jefferson, A Bill for Establishing Religious Freedom, in 2 The Papers of Thomas Jefferson 545, 546 (Julian P. Boyd ed., 1950). ↑
  19. See generally Micah Schwartzman, The Sincerity of Public Reason, 19 J. Pol. Phil. 375 (2011) (discussing the idea of public reason); John Rawls, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765 (1997) (same). ↑
  20. See Ira C. Lupu & Robert W. Tuttle, Secular Government, Religious People 73 (2014). ↑
  21. See, e.g., Kent Greenawalt, When Free Exercise and Nonestablishment Conflict 69 (2017) (“If the government is the direct and primary source of funding for a program, religious discrimination by an organization in its employment should probably be regarded as unconstitutional, just as it would be for the government itself.”); Thomas C. Berg, Religious Accommodation and the Welfare State, 38 Harv. J.L. & Gender 104, 150–51 (2015) (“It is sensible to rely in some part on the workings of markets to achieve accommodation’s purpose.”). ↑

  22. See infra notes 379–83 and accompanying text. ↑

Criminal Violations

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. ↑

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