Supervised Release: A Brief Sketch of Federal Law

Prepared for Members and Committees of Congress

Supervised release replaced parole in the federal criminal justice system for convictions after
November 1, 1987. Like parole, supervised release is a term of restricted freedom following an
offender’s release from prison. The nature of supervision and the conditions imposed during
supervised release are also similar to those that applied in the old system of parole. However,
whereas parole functions in lieu of a remaining prison term, supervised release begins only after
an offender has completed his full prison sentence.
A sentencing court determines the duration and conditions for an offender’s supervised release
term at the time of initial sentencing. In most cases, federal law limits the maximum duration to
five years, although it permits, and in some cases mandates, longer durations for relatively serious
drug, sex, and terrorism-related offenses. A sentencing court retains jurisdiction to modify the
terms of an offender’s supervised release and to revoke the term and return an offender to prison
for violation of the conditions.
Several conditions are standard features for supervised release. Some conditions, such as a ban on
the commission of further crimes, are mandatory. Other conditions, such as an obligation to report
to a probation officer, have become standard by practice and by the operation of the federal
sentencing guidelines, which courts must consider along with other statutorily designated
Together with these regularly-imposed conditions, the federal sentencing guidelines recommend
additional conditions appropriate for specific circumstances. Courts also have the discretion to
impose “any other” conditions, as long as they involve no greater deprivation of liberty than is
reasonably necessary and “reasonably relate” to at least one of the following: the nature of the
offense; the defendant’s crime-related history; deterrence of crime; protection of the public; or the
defendant’s rehabilitation.
In addition to the statutory “reasonably relate” requirement, both defendants’ constitutional rights
and federalism concerns create outer limits for the application and scope of supervised release
conditions. By nature, such conditions restrict a releasee’s freedom, and some conditions involve
systems, such as child support orders, ordinarily governed by the states. Nonetheless, federal
courts have upheld a wide range of such conditions against constitutional challenges.

Introduc tion ..................................................................................................................................... 1
Durati on ....................................................................................................................... .................... 2
Conditi ons ..................................................................................................................... .................. 3
Mandatory Conditions...............................................................................................................4
Discretionary Conditions..........................................................................................................4
Standard Discretionary Conditions.....................................................................................6
Special Discretionary Conditions.......................................................................................7
Additional Discretionary Conditions..................................................................................8
“Any Other Condition”.......................................................................................................9
Case Law on “Reasonably Related” Requirement....................................................................9
Constitutional Considerations..................................................................................................11
Defendants’ Constitutional Rights.....................................................................................11
States’ Rights.....................................................................................................................13
Modification and Revocation........................................................................................................13
Author Contact Information..........................................................................................................15

Supervised release is the successor to parole in the federal criminal justice system. In 1984, 2
Congress eliminated parole to create a more determinate federal sentencing structure. In its
place, Congress instituted a system of supervised release, which applies to all federal crimes 3
committed after November 1, 1987. Like parole, supervised release is a period of supervision
following release from prison. However, an important difference distinguishes the two systems:
whereas parole stands in lieu of a portion of an offender’s original prison term, supervised release 4
begins only after full service of a prison term. Thus, supervised release does not operate to
reduce the duration of imprisonment. Instead, sentencing courts determine terms and conditions
of supervised release at the same time they determine other components of a federal offender’s
sentence, and “[t]he duration, as well as the conditions of supervised release are components of a 5
Sentencing courts have “broad discretion” when determining the duration and imposing the 6
conditions for supervised release. In addition, except in specified drug and domestic violence
cases, courts may technically exercise discretion to decline supervised release altogether for a
particular defendant. However, the federal sentencing guidelines, promulgated by the United
States Sentencing Commission, recommend that sentencing courts impose a term of supervised 7
release in most federal felony cases.
As a rule, courts impose supervised release only in conjunction with prison sentences. However, a
former Bush Administration official’s case made news when his lawyers agreed to supervised 8
release despite President George W. Bush’s commutation of his prison sentence.

1 Two reports on this topic were originally prepared by Charles Doyle, Senior Specialist, American Law Division.
2 Comprehensive Crime Control Act of 1984, P.L. 98-473, Title II, 98 stat. 1976; See 154 Cong. Rec. H7237 (daily ed.
July 29, 2008) (statement of Sen. King) (referring to the 1984 laws “unquestioned success and stating that
“[d]eterminate sentencing makes incarceration terms more meaningful and ensures that offenders actually serve most of
their sentences.)
3 Parole continues to apply to the small number of remaining federal offenders serving sentences for crimes committed
prior to November 1, 1987. It also applies to offenders convicted for pre-2000 violations of the District of Columbias
criminal code. Although Congress officially repealed the parole provisions, including those authorizing the Parole
Commission’s activities, in the 1984 act, Congress has several times extended the life of the federal Parole Commission th
to address these remaining offenders. Most recently, the 110 Congress extended the life of the Parole Commission to
October 31, 2011. P.L. 110-312. In administering parole, the Parole Commission follows federal policy guidelines,
which are the precursors to the policies contained in the sentencing guidelines promulgated by the United States
Sentencing Commission. 28 C.F.R. 2.20; U.S.S.G. §5D.
4 See U.S.S.G. pt.A.2(b) (“Unlike parole, a term of supervised release does not replace a portion of the sentence of
imprisonment, but rather is an order of supervision in addition to any term of imprisonment imposed by the court”).
5 United States v. Goodson, 544 F.3d 529, 538 (3d Cir. 2008).
6 United States v. Proctor, 281 Fed. Appx. 72, 73 (3d Cir. 2008).
7 18 U.S.C. §3583; U.S.S.G. §5D1.1. The Application Note accompanying §5D1.1 in the Sentencing Guidelines
suggests that a court should decline to impose supervised release only ifit determines that supervised release is neither
required by statute nor required for any of the following reasons: (1) to protect the public welfare; (2) to enforce a
financial condition; (3) to provide drug or alcohol treatment or testing; (4) to assist the reintegration of the defendant
into the community; or (5) to accomplish any other sentencing purpose authorized by statute. For background and
analysis related to the federal sentencing guidelines, see CRS Report RL32766, Federal Sentencing Guidelines:
Background, Legal Analysis, and Policy Options, by Lisa M. Seghetti and Alison M. Smith.
8 See, e.g., Neil A. Lewis, Issue of Supervised Release for Libby is Cleared Up, NY Times, A.15 July 10, 2007 (East
Coast, late ed.).

Supervised release terms begin when a prisoner is actually released, regardless of when he should 9
have been released. Although a court may sentence an offender to several terms of supervised 10
release for each of several crimes, the terms are served concurrently rather than consecutively.
This rule applies even where criminal statutes require an offender to serve the multiple terms of 11
imprisonment consecutively.

Supervised release term lengths generally correspond to the severity of the crime for which the
sentence is imposed. Thus, a longer imprisonment generally corresponds with a longer term of
supervised release. Special rules govern term lengths for terrorism-related crimes, drug offenses,
kidnapping, and some sex offenses. For other crimes, maximum durations range from less than a
year to not more than five years. Specifically, federal statute limits such terms to: (1) five years
for class A or class B felonies, such as first-degree murder; (2) three years for class C or class D 12
felonies, such as bank robbery; and (3) one year for all other crimes. Within the maximum and
minimum limits set by statute, courts typically have significant discretion over the length of
supervised release.
In special cases – particularly those involving drug offenses, terrorism-related crimes,
kidnapping, and some sex offenses – federal statute allows, and sometimes mandates, supervised
release terms that exceed the typical one- to five-year maximums. For example, several federal
controlled substance statutes establish mandatory minimum, rather than maximum, durations for
supervised release terms. In cases involving relatively large quantities of the most dangerous
controlled substances (for instance, a kilogram or more of heroin), courts must sentence
defendants to a term of supervised release of at least five years after an initial conviction, or ten 13
years upon a subsequent conviction. Mandatory minimums also apply, but are lower, when
smaller quantities (for instance, 100 to 1,000 grams of heroin) or less dangerous controlled 14
substances are involved. These minimum statutory terms double (treble for recidivists) in cases
involving aggravating circumstances. Aggravating circumstances include, among other things:

9 18 U.S.C. 3624(e); United States v. Johnson, 529 U.S. 53, 54 (2000) (holding that a prisoners term of supervised
release could not be reduced by the two and a half years during which he inadvertently remained incarcerated after the
expiration of his lawful prison term).
10.... The term of supervised release commences on the day the person is released from imprisonment and runs
concurrently with any federal, state, or local term of probation or supervised release or parole for another offense to
which the person is subject or becomes subject during the term of supervised release. A term of supervised release does
not run during any period in which the person is imprisoned in connection with a conviction for a federal, state, or local
crime unless the imprisonment is for a period of less than 30 consecutive days.... ” 18 U.S.C. §3624(e); United States v. th
Hernandez-Guevara, 162 F.3d 863, 877-78 (5 Cir. 1998).
11 U.S.S.G. §5G1.2, Application Note 2(C).
12 18 U.S.C. §3583(b). Federal statute defines classes according to maximum possible sentence: (1) death or life
imprisonment for class A; (2) 25 years or more for class B; 10 to 25 years for class C; and 5-10 years for D. In United
States v. Cunningham, the U.S. Court of Appeals for the Second Circuit held that the statutory maximums trump
sentencing guidelines in offense classification. 292 F.3d 115, 118-19 (2d Cir. 2002).
13 21 U.S.C. §§ 841(b)(1)(A), 960(b)(1). At one time, it was thought that these mandatory minimum terms of
supervised release in drug cases might be subject to the 5-3-1 year maximums delineated in 18 U.S.C. §3583. See, e.g., thth
United States v. Kelly, 974 F.2d 22, 25 (5 Cir. 1992); United States v. Good, 25 F.3d 218, 222 (4 Cir. 1994).
However, statute now makes clear that these minimums applynotwithstanding 18 U.S.C. §3583(e). 21 U.S.C. §§
841(b)(1)(A), 960(b)(1).
14 21 U.S.C. §§ 841(b)(1)(B), 960(b)(2).

distribution at a truck stop or highway rest area; distribution using an individual under the age of 15

18; and distribution to a pregnant woman.

A similar reversal of maximum to minimum term duration applies to supervised release in the
context of specified federal kidnaping and sex offenses. For those crimes, the “authorized term” 16
of supervised release is any term of at least five years, and may extend to life.
For terrorism-related offenses, the statutory rules essentially eliminate any minimum or maximum
length for supervised release terms, instead permitting courts to determine the appropriate
duration. Specifically, the USA PATRIOT Act and the USA PATRIOT Improvement and
Reauthorization Act authorize supervised release terms of any number of years or life for 17
specified crimes associated with acts of terrorism.

Conditions for supervised release are determined during a federal offender’s initial sentencing,
based on the nature of the offense, the defendant’s particular history, and other factors. When
determining applicable conditions, courts consider both federal statute and federal sentencing
guidelines. Following a 2005 Supreme Court case, Booker v. United States, courts may depart 18
from the Sentencing Guidelines if grounds for departure exist. Courts also exercise independent
judgment in each individual case.
Courts must impose a small set of mandatory conditions any time they order supervised release.
Other conditions enumerated in statute or by the sentencing guidelines are discretionary, although
some discretionary conditions have become standard practice over time. In addition to
specifically listed conditions, courts may impose almost any other condition as long as the
condition satisfies several parameters and is constitutionally permissible.
Courts may delegate some decisions regarding specific conditions to probation officers to 19
determine during the course of an offender’s supervised release term. However, such
delegations must be relatively minor; courts cannot delegate key decision-making obligations. For
example, although a court may assign a probation officer discretion to determine the specifics of a
condition imposing treatment, the order for supervised release may not delegate the determination 20
of whether such treatment is necessary. Likewise, courts, rather than probation officers, must 21
decide broad parameters for the number of drug tests necessary for a particular defendant.

15 21 U.S.C. §849; 21 U.S.C. §861(a); 21 U.S.C. §861(f).
16 18 U.S.C. §3583(k). The offenses covered by section 3583(k) include kidnaping, sex trafficing, producing child
pronography, sexual exploitation of children, aggravated sexual abuse, and related offenses.
17 18 U.S.C. §3583(j). This subsection applies to a long list of activities that endanger national security, such as hostage
taking, attempting to murder government officials, and unlawful use of biological weapons. See 18 U.S.C.
18 543 U.S. 220, 245-46 (2005) (holding that courts must consider federal sentencing guidelines when sentencing
federal offenders but that the guidelines do not ultimately bind a court’s decision).
19 Probation is similar to supervised release in that it is a term during which an offender lives outside of prison but is
subject to various conditions. However, probation typically applies in lieu of a prison sentence, whereas supervised
release typically applies after an offender has served a prison term. Despite the differences, probation officers are the
officials responsible for monitoring offenders activity in both systems.
20 See United States v. Nash, 438 F.3d 1302, 1305-306 (11th Cir. 2006); United States v. Pruden, 398 F.3d 241, 250 (3d

Federal statute mandates several mandatory conditions that apply to all defendants, and a few
additional conditions that apply only in cases involving domestic violence or sex offenses. All
supervised release orders require offenders to: (1) refrain from criminal activity; (2) cooperate 22
with authorized collection of DNA samples; and (3) submit to periodic drug tests. In addition,
prior to release, all prisoners must agree to adhere to the payment schedule for any unpaid fine
imposed; however, federal statute does not specify that such agreements will be enforced as 23
conditions of supervised release after the agreement is made. To fill this gap, federal sentencing
guidelines suggest that courts require adherence to such agreements as conditions of supervised 24
Additional mandatory conditions apply to domestic violence and sex offenses. Specifically, first-
time domestic violence offenders must attend an approved rehabilitation program if one is located
within 50 miles of their residence, and convicted sex offenders must register their addresses with 25
relevant authorities if the federal sex offender registry requirements apply.
Courts have relatively broad discretion to impose supervised release conditions that supplement
the mandatory conditions for a particular defendant. A court may impose any discretionary
condition that (1) is “reasonably related” to specified factors; (2) “involves no greater deprivation
of liberty than is reasonably necessary”; and (3) is “consistent with” policy statements issued by 26
the U.S. Sentencing Commission.

Cir. 2005).
21 The permissible scope of probation officer discretion relating to the mandatory drug testing condition has been the
subject of considerable litigation. For example, the United States Court of Appeals for the Ninth Circuit has heard th
multiple appeals addressing this issue. See United States v. Stephens, 424 F.3d 876 (9 Cir. 2005) (striking down the
sentencing court’s delegation to the probation officer of the authority to determine of the number of additional non-th
treatment drug tests to which the defendant was required to submit); United States v. Garcia, 522 F.3d 855 (9 Cir.
2008) (distinguishing Stevens where a probation officer had the discretion to order non-treatment drug tests, but only up
to a total of three, the maximum amount implied by the court’s order).
22 18 U.S.C. §3583(d). DNA collection would be appropriate if authorized by the DNA Analysis Backlog Elimination
Act of 2000, codified at 42 U.S.C. §14135a. Id. For more information on DNA collection in the federal criminal justice
system, see CRS Report R40077, Compulsory DNA Collection: A Fourth Amendment Analysis, by Anna C. Henning.
23 18 U.S.C. §3624(e).
24 U.S.S.G. §5D1.3(a)(6) (suggesting the following condition: “The defendant shall (A) make restitution in accordance
with [relevant statutory provisions], and (B) pay the assessment imposed ... ”). A separate, discretionary guideline
applies to payment of special assessments. U.S.S.G. §5D1.3(c)(14) (suggesting: “The defendant shall pay the special
assessment imposed or adhere to a court-ordered installment schedule for the payment of the special assessment”).
Courts imposespecial assessments upon conviction in amounts ranging from $5 to $100 for individual defendants
and up to $400 for organizations and other entities. 18 U.S.C. §3013.
25 18 U.S.C. §3583(d). A domestic violence crime isa crime of violence for which the defendant may be prosecuted in
a court of the United States in which the victim or intended victim is the spouse, former spouse, intimate partner,
former intimate partner, child, or former child of the defendant, or any other relative of the defendant.” 18 U.S.C.
26 18 U.S.C. §3583(d).

Factors to which the condition must be “reasonably related” include (1) the nature and
circumstances of the offense and the defendant’s history and character; (2) deterrence of crime; 27
(3) protection of the public; and (4) the defendant’s rehabilitation. Although the statutory
language repeats the conjunction “and” between factors and thus appears on its face to require
that a particular condition relate to all, rather than just one, of these factors, courts have generally
interpreted the statute such that a reasonable relationship to any one factor is sufficient to justify a 28
discretionary condition.
As long as these prerequisites are satisfied for each condition, a court may impose any of twenty
discretionary conditions listed in statute, any conditions recommended by the sentencing 29
guidelines, or “any other condition it considers to be appropriate” for a particular offender.
Nineteen of the twenty statutorily-enumerated discretionary conditions are borrowed from the list 30
of permissible conditions for probation. The twentieth condition authorizes deportation of 31
defendants who are foreign nationals.
Federal sentencing guidelines quote some of the statutorily identified discretionary conditions,
suggest expanded versions of others, and propose additional considerations in still other 32
situations. They divide the discretionary conditions into three groups—“standard” conditions,
which courts impose as a matter of practice in most cases; “special” conditions that may be
applied to particular kinds of cases; and “additional” conditions, such as community confinement,
curfews and occupational restrictions.

27 Id. (incorporating by reference 18 U.S.C. §3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(d)).
28 See, e.g., United States v. Johnson, 998 F.2d 696, 697-99 (9th Cir. 1993).
29 18 U.S.C. §3583(d).
30 The statutorily-enumerated discretionary conditions require a person on supervised release to: (1) support his
dependents; (2) make restitution to a victim of the offense; (3) in cases involving fraud or other intentional deception,
give appropriate notice of the conviction to the victims; (4) work conscientiously at suitable employment or pursue
study or vocational training; (5) refrain from engaging in a specified occupation, business, or profession bearing a
reasonably direct relationship to the conduct constituting the offense; (6) refrain from frequenting specified places or
associating with specified persons; (7) refrain from excessive use of alcohol or other controlled substances; (8) refrain
from possessing a firearm or other dangerous weapon; (9) undergo available treatment and remain in a specified
institution; (10) remain in the custody of the Bureau of Prisons during nights or weekends; (11) work in community
service; (13) reside in a specified place or area or refrain from residing in a specified place or area; (14) remain within
the jurisdiction of the court; (15) report to a law enforcement officer officer; (16) permit a probation officer to visit him
at his home or elsewhere; (17) answer inquiries by a probation officer and notify the probation officer promptly of any
change in address or employment; (18) notify the probation officer promptly if arrested or questioned by a law
enforcement officer; (19) remain at his place of residence during nonworking hours; and (20) comply with the terms of
any court order or order of an administrative process ordering child support. 18 U.S.C. §3563(b)(1)-(b)(10), (b)(12)-
31 18 U.S.C. §3583(d). A defendant’s deportation as a supervised release condition does not automatically terminate
supervised release nor the obligation to comply with other conditions of supervised release. See United States v.
Williams, 369 F.3d 250, 252-53 (3d Cir. 2004), citing in accord, United States v. Ramirez-Sanchez, 338 F.3d 977, 980 th
(9 Cir. 2003); United States v. Cuero-Flores, 276 F.3d 113, 117 (2d Cir. 2002). However, a defendant’s term of
supervised released is not tolled during the time the defendant is lawfully outside the country pursuant to a deportation th
order. United States v. Okoko, 365 F.3d 962, 964-67 (11 Cir. 2004).
32 U.S.S.G. §5D1.3.

Courts regularly impose the sentencing guidelines’ standard conditions as a matter of practice.33
Many such conditions ensure that defendants remain in regular contact with probation officers.
For instance, they recommend that courts order defendants to: report to a probation officer on a 3435
regular basis; allow his probation officer to visit him; respond honestly to his probation 36
officer’s questions and follow the officer’s instructions; notify his probation officer of any 37
change in address or employment; remain in the district unless the court or probation officer 38
approves leaving; and notify his probation officer if the defendant is arrested or questioned by 39
law enforcement officers.
Other standard conditions prevent criminal entanglements. For example, they recommend that 40
courts require defendants to avoid: criminal associations; illicit drug markets, stash houses, and 4142
crack houses; the use of illicit drugs or the excessive use of alcohol; and becoming an 43
informant without permission of the court. A related condition requires a defendant to stay 44
gainfully employed during the term of supervised release.
The remaining standard conditions instruct defendants to honor specific or general legal
obligations. For example, they recommend that courts require each defendant to: support his 4546
family; pay any unpaid special assessment; advise his probation officer of circumstances that

33 U.S.S.G. §5D1.3(c); United States v. Truscello, 168 F.3d 61, 63 (2d Cir. 1999) (“because the so-called standard
conditions [of U.S.S.G. §5D1.3(c)] imposed in this case are basic administrative requirements essential to functioning
of the supervised release system, they are almost uniformly imposed by the district courts and have become
34 U.S.S.G. §5D1.3(c)(2) (The defendant shall report to the probation officer as directed by the court or probation
officer and shall submit a truthful and complete written report within the first five days of each month”).
35 U.S.S.G. §5D1.3(c)(10) (The defendant shall permit a probation officer to visit the defendant at any time at home or
elsewhere and shall permit confiscation of any contraband observed in plain view by the probation officer).
36 U.S.S.G. §5D1.3(c)(3).
37 U.S.S.G. §5D1.3(c)(6) (The defendant shall notify the probation officer at least ten days prior to any change of
residence or employment”).
38 U.S.S.G. §5D1.3(c)(1).
39 U.S.S.G. §5D1.3(c)(11) (The defendant shall notify the probation officer within seventy-two hours of being arrested
or questioned by a law enforcement officer”).
40 U.S.S.G. §5D1.3(c)(9) (“The defendant shall not associate with any persons engaged in criminal activity, and shall
not associate with any person convicted of a felony unless granted permission to do so by the probation officer).
41 U.S.S.G. §5D1.3(c)(8) (“The defendant shall not frequent places where controlled substances are illegally sold, used,
distributed, or administered, or other places specified by the court).
42 U.S.S.G. §5D1.3(c)(7) (The defendant shall refrain from excessive use of alcohol and shall not purchase, possess,
use, distribute, or administer any controlled substance, or any paraphernalia related to any controlled substance, except
as prescribed by a physician”).
43 U.S.S.G. §5D1.3(c)(12) (“The defendant shall not enter into any agreement to act as an informer or a special agent of
a law enforcement agency without the permission of the court).
44 U.S.S.G. §5D1.3(c)(5) (The defendant shall work regularly at a lawful occupation unless excused by the probation
officer for schooling, training, or other acceptable reasons”). See also United States v. McKissic, 428 F.3d 719, 724-25 th
(7 Cir. 2005) (upholding a supervised release condition that required the defendant with a checkered employment
history to seek to obtain a high school diploma or equivalent, obtain and maintain employment and provide community
service while unemployed).
45 U.S.S.G. §5D1.3(c)(4) (The defendant shall support the defendants dependents and meet other family
responsibilities ... ”).
46 U.S.S.G. §5D1.3(c)(14) (The defendant shall pay the special assessment imposed or adhere to a court-ordered

might prevent his making fine, restitution or special assessment payments;47 and notify victims 48
and those possibly at risk.
So-called “special” discretionary conditions address case-specific factors, such as the nature of an
offense, the defendant’s character, or another condition contained in a defendant’s sentence. For
example, the sentencing guidelines recommend that a court prohibit a defendant’s possession of
weapons during supervised release if the defendant used a weapon in the commission of the crime 49
at issue or had a record including prior felony convictions. Likewise, when a conviction is for a
sex or child pornography offense or a defendant has a history of sexual misconduct, a court might
mandate sex-offender treatment, limit computer use, or authorize warrantless searches of the 50
defendant’s possessions. Other special conditions based on a particular defendant’s character or
history include requiring participation in a drug or mental health treatment program based on a
history of substance abuse or mental health problems or ordering deportation if the defendant is 51
an alien who is eligible for deportation under immigration laws.
In cases involving financial offenses, unpaid fees, or restitution orders, the sentencing guidelines
recommend that a court prohibit a defendant from incurring new credit charges or opening
additional lines of credit without approval of the probation officer unless the defendant is in
compliance with his scheduled payments or mandate probation officers’ access to a defendant’s 52
financial information. Moreover, when reasonably related to an offense, such conditions might

installment schedule for the payment of the special assessment”).
47 U.S.S.G. §5D1.3(c)(14).
48 U.S.S.G. §5D1.3(c)(13) (As directed by the probation officer, the defendant shall notify third parties of risks that
may be occasioned by the defendant’s criminal record or personal history or characteristics, and shall permit the
probation officer to make such notifications and to confirm the defendant’s compliance with such notification th
requirement”). See also United States v. Nash, 438 F.3d 1302, 1306 (11 Cir. 2006) (upholding a condition under
which the individual was required to “notify third parties of risks that may be occasioned by [his] criminal record or
personal history or characteristics as directed by the probation officer).
49 U.S.S.G. §5D1.3(d)(1). Under appropriate circumstances, the condition limiting the possession of weapons may
extend not only to firearms but to crossbows, bows, and arrows. United States v. Gallagher, 275 F.3d 784, 793-94 (9th
Cir. 2001).
50 U.S.S.G. §5D1.3(d)(7). Courts have had some difficulty formulating conditions limiting computer use in such cases.
Compare United States v. Mark, 425 F.3d 505, 508-10 (8th Cir. 2005) (rejecting a complete ban on Internet access
when a more tailored condition might have been sufficient); United States v. Sofsky, 287 F.3d 122, 126-27 (2d Cir.
2002) (striking down a condition barring all computer access without probation officer approval as too restrictive when th
a more narrowly drawn condition would suffice); United States v. White, 244 F.3d 1199, 1205-206 (10 Cir. 2001)
(rejecting a condition banning possession of a computer with internet access as at once too broad (undue restrictions on
lawful computer use) and too narrow (failure to ban access using someone else’s computer)) with United States v. th
Rearden, 349 F.3d 608, 619-21 (9 Cir. 2003) (approving ban on computer use or possession with access to online th
service without the approval of his probation officer); United States v. Walser, 275 F.3d 981, 987-88 (10 Cir. 2001) th
(approving internet access ban absent probation officer approval); United States v. Paul, 274 F.3d 155, 165-72 (5 Cir.
2001) (upholding a ban on computer and Internet access, a prohibition on direct contact with children, and a bar on
possession of photographic or like equipment); United States v. Crandon, 173 F.3d 122, 127-28 (3d Cir. 1999)
(upholding a condition requiring probation officer approval for all Internet access).
51 U.S.S.G. §5D1.3(d)(4) (drugs); U.S.S.G. 5D1.3(d)(5) (mental health); U.S.S.G. §5D1.3(d)(6) (deportation).
52 U.S.S.G. §5D1.3(d)(2); U.S.S.G. §5D1.3(d)(3). Courts have upheld conditions requiring probation officers access to
financial information in various circumstances, ranging from a goal of preventing a return to drug dealing to a goal of th
ensuring compliance with child support payments. See, e.g., United States v. Behler, 187 F.3d 772, 780 (8 Cir. 1999)

include demands to provide information concerning the financial activities of a defendant’s 53
spouse or legal entities under the releasee’s control.
“Additional” conditions address defendants’ mobility and work activities. They include 545556 57
community confinement; home detention; community service; curfew; and restrictions on 58
a defendant’s occupation.
Perhaps because many additional conditions restrict defendants’ freedom of movement,
commentary accompanying these additional conditions in the federal sentencing guidelines shows
a special caution that such restrictions not become excessive. For example, the commentary
advises that “[c]ommunity confinement generally should not be imposed for a period in excess of
six months,” although “[a] longer period may be imposed to accomplish the objectives of a 59
specific rehabilitative program, such as drug rehabilitation.” Likewise, it limits community 60
service conditions to no more than 400 hours.

(holding that the district court had reasonably believed thatmonitoring [the defendant]s financial situation would aid
in detecting any return to his former lifestyle of [financially motivated] drug distribution); United States v. Brown,
402 F.3d 133, 137-38 (2d Cir. 2005) (upholding a condition that defendant, convicted on drug charges, report financial th
information to his probation officer); United States v. Camp, 410 F.3d 1042, 1045-46 (8 Cir. 2005) (upholding a
condition requiring a defendant, convicted of unlawful possession of a firearm, to disclose financial information to his
probation officer in order to ensure payment of child support). However, courts have occasionally invalidated such
conditions, particularly if they impede a relatively broad range of activity. See, e.g., Brown, 402 F.3d at 138-39
(striking down a condition requiring the defendant to obtain advance approval forany debt, including use of a credit
card) (emphasis in original).
53 See, e.g., United States v. Kosth, 943 F.2d 798, 800-801 (7th Cir. 1991) (in a case involving fraudulent credit card
use, upholding a condition requiring reporting of debt incurred by the defendant’s wife); United States v. Grant, 117 th
F.3d 788, 792-93 (5 Cir. 1997) (upholding a condition requiring a minister convicted of tax evasion to report income
received on behalf of religious organizations).
54 U.S.S.G. §5D1.3(e)(1). See also United States v. Bahe, 201 F.3d 1124, 1127-136 (9th Cir. 2000); United States v.
Griner, 358 F.3d 979, 982 (8th Cir. 2004); United States v. DAmario, 412 F.3d 253, 256 (1st Cir. 2005); United States th
v. Del Barrio, 427 F.3d 280, 283 (5 Cir. 2005). The sentencing guidelines’ commentary defines “community
confinement” as: “residence in a community treatment center, halfway house, restitution center, mental health facility,
alcohol or drug rehabilitation center, or other community facility; and participation in gainful employment,
employment search efforts, community service, vocational training, treatment, educational programs, or similar
facility-approved programs during non-residential hours.
55 U.S.S.G. §5D1.3(e)(2). The sentencing guidelines commentary defineshome detention” as a program of
confinement and supervision that restricts the defendant to his place of residence continuously, except for authorized
absences, enforced by appropriate means of surveillance by the probation office. When an order of home detention is
imposed, the defendant is required to be in his place of residence at all times except for approved absences for gainful
employment, community service, religious services, medical care, educational or training programs, and at such other
times as may be specifically authorized. U.S.S.G. §5F1.2.
56 U.S.S.G. §5D1.3(e)(3).
57 U.S.S.G. §5D1.3(e)(5).
58 U.S.S.G. §5D1.3(e)(4).
59 U.S.S.G. §5F1.1.
60 U.S.S.G. §5D1.3(e)(3). For community service, the guidelines justify the time limitation in part on the heavy
administrative burden that would likely arise from periods of community service greater than 400 total hours. Id.

The sentencing guidelines similarly limit the appropriate time frame for restrictions on a
defendant’s occupation, advising that such restrictions last only “for the minimum time and to the 61
minimum extent necessary to protect the public.” The guidelines also limit occupational
restrictions to the narrow set of circumstances where both: “(1) a reasonably direct relationship
existed between the defendant’s occupation, business, or profession and the conduct relevant to
the offense of conviction; and (2) imposition of such a restriction is reasonably necessary to
protect the public because there is reason to believe that, absent such restriction, the defendant 62
will continue to engage in unlawful conduct.”
Finally, a court may impose any other condition that it “considers to be appropriate,” provided
that the condition meets the same statutory prerequisites which apply to all discretionary 63
conditions. Courts occasionally exercise this discretion to impose unique conditions upon a
defendant’s supervised release. For example, in United States v. Gementera, the U.S. Court of
Appeals for the Ninth Circuit upheld a condition requiring a defendant to stand outside a post 64
office for one day wearing or carrying a sign declaring, “I stole mail; this is my punishment.” In
that case, the defendant argued that the condition failed to satisfy the statutory requirements 6566
because its only purpose was “humiliation.” The court rejected this argument. Emphasizing a
sentencing court’s “wide discretion” to impose conditions, the court held that the sentencing court
had not abused its discretion in finding that the condition was reasonably related to deterrence
and rehabilitation factors and that it did not restrict the defendant’s liberty more than was 67
reasonably necessary.
In other circumstances, courts use their discretionary authority to impose conditions in areas other
than the one for which the sentencing guidelines recommend it. For example, in United States v.
Goodson, a district court had imposed a condition authorizing warrantless searches of the
defendant’s place of business in a case in which a defendant pled guilty of wire fraud and making
and uttering counterfeit checks – a condition that the sentencing guidelines recommend for child 68
pornography cases but do not specifically mention for financial crimes.
Some defendants have successfully argued that a condition imposed on supervised release is
invalid because it is not “reasonably related” to the offense in question. For example, in United
States v. Ferguson, the U.S. Court of Appeals for the Fifth Circuit held that a history of drug
abuse and conviction for possession of a machine gun do not justify supervised release conditions
prohibiting use of tobacco or consumption without a prescription of aspirin or over-the-counter

61 U.S.S.G. §5D1.3(e)(4).
62 Id.
63 18 U.S.C. 3583(c), (d).
64 379 F.3d 596, 601-02 (9th Cir. 2004).
65 Id. at 601.
66 Id. at 601-02.
67 Id.
68 United States v. Goodson, 544 F.3d 529 (3d Cir. 2008).

cold remedies.69 Similarly, in United States v. Abrar, the U.S. Court of Appeals for the Second
Circuit invalidated a supervised release condition requiring a defendant to repay his personal
debts where the defendant had been convicted of illegal transfer of false immigration 70
documents. Likewise, in a case involving wire fraud, the U.S. Court of Appeals for the Eighth
Circuit struck down conditions requiring a defendant to abstain from alcohol and submit to 71
unannounced warrantless searches.
In all three examples, courts emphasized that a sentencing court has “wide discretion”72 and
typically may impose a condition “if it is reasonably related to any one or more of the specified 73
factors.” However, they concluded that the imposed condition did not bear a sufficiently
reasonable relationship to the particular offense at issue, the defendant’s history, or any other 74
statutory factors.
On the other hand, many courts have upheld conditions based solely on a defendant’s history,
even in the absence of any nexus to the particular offense at issue. For example, courts have
upheld the imposition of special conditions targeted to sex offenders based on a defendant’s prior
sex offenses in cases where the crime of conviction was for bank robbery, narcotics, or other 75
offenses unrelated to sex. Numerous courts have likewise upheld drug or mental health 76
treatment conditions justified solely by a defendant’s previous history. However, courts have
occasionally invalidated such conditions in cases where the need for the treatment or other 77
condition appears to have disappeared or grown stale.
The federal courts have developed unique rules governing the “reasonable relationship” analysis
in a few categories of conditions. For instance, although the federal sentencing guidelines

69 369 F.3d 847, 852-54 (5th Cir. 2004).
70 58 F.3d 43, 46-7 (2d Cir. 1995).
71 United States v. Prendergast, 979 F.2d 1289 (8th Cir. 1992).
72 Id. at 1292.
73 See Abrar, 58 F.3d at 46.
74 See, e.g., Id. (We fail to perceive how the debt repayment condition imposed in this case reasonably relates to any of
these factors”); Prendergast at 1293 (The district court failed to explain any relationship between the wire fraud
offense and the supervised release provision permitting warrantless searches for drugs or controlled substances. We see
no reasonable relationship, and are of the view that the district court abused its discretion in imposing these special
conditions of supervised release.).
75 See, e.g., United States v. Rosario, 386 F.3d 166, 171-72 (2d Cir. 2004) (in a case involving a narcotics offense,
upholding a condition requiring the defendant to register as a sex offender based upon the defendant’s previous st
conviction for attempted rape of a seven-year-old girl); United States v. York, 357 F.3d 14, 19-21 (1 Cir. 2004)
(upholding a condition requiring sex offender treatment even though it bore no relation to the crime of conviction,
based upon the defendants previous conviction for sexually abusing a minor); United States v. Scott, 270 F.3d 632, th
635-36 (8 Cir. 2001) (in a case involving bank robbery, upholding special conditions for sex offenders based on the
defendant’s prior rape conviction).
76 See, e.g., United States v. Mickelson, 433 F.3d 1050, 1056-57 (8th Cir. 2006) (in a child pornography case, upholding
conditions of alcohol screening and mental health treatment based on the defendant’s history of alcohol and mental
health issues).
77 See, e.g., United States v. Kent, 209 F.3d 1073, 1075-78 (8th Cir. 2000) (invalidating a condition requiring
psychological counseling where evidence of the need was stale and otherwise weak); United States v. Pruden, 398 F.3d
241, 248-49 (3d Cir. 2005) (holding that the sentencing court had abused its discretion where the condition was
unrelated to the offense and there was insufficient evidence of any present need for treatment).

recommend occupational restrictions in some circumstances, courts will not typically uphold such 78
conditions unless they directly relate to the offense of conviction.
Conversely, courts appear to permit restrictions of alcohol use justified by only relatively small 79
connections to the particular defendant or offense. Furthermore, although the federal sentencing
guidelines specifically permit a court to prohibit the excessive consumption of alcoholic
beverages as a condition of supervised release, conditions demanding total abstention are
apparently common. There may be some question, however, whether a ban on alcoholic
consumption may be imposed as condition of supervised release where there is no connection 80
with either the offense at issue or the defendant’s particular history.
The U.S. Constitution stands as the ultimate authority over government action. Thus, even if a
supervised release condition satisfies all statutory requirements, a court will invalidate it if it runs
afoul of a defendant’s constitutional rights or exceeds the federal government’s constitutional
power vis-à-vis the states.
Because they restrict a person’s freedom and may intrude upon a person’s privacy, supervised
release conditions occasionally implicate defendants’ constitutional rights. For instance,
conditions might implicate the Fourth Amendment right against unreasonable searches and
seizures, the First Amendment right to free speech and free association, or the Fifth Amendment
right against self-incrimination. However, although the Supreme Court has made clear that
conviction does not eliminate an individual’s constitutional rights, it has also emphasized that “by
virtue of their status alone, probationers [and others along the “continuum of punishment” in the 81
criminal justice system] do not enjoy the absolute liberty to which every citizen is entitled.”
Perhaps in part because of this diminishment of constitutional rights, courts have upheld most
supervised release conditions against constitutional challenges.

78 See, e.g., United States v. Erwin, 299 F.3d 1230, 1232-233 (10th Cir. 2002); United States v. Scott, 270 F.3d 632,
634-36 (8th Cir. 2001); United States v. Cooper, 171 F.3d 582, 585-86 (8th Cir. 1999); United States v. Mills, 959 F.2d th
516, 518-20 (5 Cir. 1992). In United States v. Prochner, the U.S. Court of Appeals upheld a condition forbidding a
defendant “from engaging in an occupation, business or profession that would require direct supervision of children st
under the age of 18” even though the crime of conviction was credit card fraud. 417 F.3d 54, 65 (1 Cir. 2005).
However, the defendant in that case had been found in possession of material indicating a “desir[e] to have sexual
relationships with adolescent males” during the course of his arrest for the crime at issue. Id at 58, 65.
79 See, e.g., United States v. Henkel, 358 F.3d 1013,1015-16 (8th Cir. 2002); United States v. Brown, 235 F.3d 2, 6-7
(1st Cir. 2000); United States v. Behler, 187 F.3d 772, 789 (8th Cir. 1999); United States v. Schave, 186 F.3d 839, 842-thth
43 (7 Cir. 1999); United States v. Wesley, 81 F.3d 482, 484 (4 Cir. 1996); United States v. Johnson, 998 F.2d 696, th
699 (9 Cir. 1993).
80 See United States v. Modena, 302 F.3d 626, 636-37 (6th Cir. 2002); Pendergast, 979 F.2d at 1292-293 (rejecting
ban). But see United States v. McKissic, 428 F.3d 719, 722-23 (7th Cir. 2005) (striking down a condition banning
alcohol consumption where a defendant “was issued a citation for operating a motor vehicle in which there were open
containers of alcohol ... admitted to first consuming alcohol at the age of 17, to consuming up to three vodka mixed
drinks as often as twice a month, and to being intoxicated about a month prior to his arrest).
81 Samson v. California, 547 U.S. 843, 848-49 (2006) (internal quotations omitted).

The Fourth Amendment is implicated when a sentencing court includes as a condition of a
defendant’s supervised release the warrantless search of his person or property. The Fourth
Amendment to the U.S. Constitution guarantees a right “against unreasonable searches and 82
seizures.” To be “reasonable” under the Fourth Amendment, the government’s “search” – that is,
its intrusion into a person’s “reasonable expectation of privacy” – must typically have the support
of a judicially-issued warrant (or a valid exception to the warrant requirement) and “probable 83
cause” to believe that evidence of criminal activity will be found. However, in cases involving
people serving criminal sentences, the Supreme Court has instead employed a “general
balancing” test, in which it assesses “on the one hand, the degree to which [the government
action] intrudes upon an individual’s privacy and, on the other, the degree to which it is needed 84
for the promotion of legitimate interests.” Because people on supervised release, like others
along the “continuum of punishment,” have a “reduced expectation of privacy” under the Court’s 85
Fourth Amendment jurisprudence, their privacy interests are disfavored in this balancing test.
Perhaps in part for this reason, courts have generally upheld such conditions as long as they are 86
reasonably related to the defendant’s crime, history, or rehabilitation. However, whether
individual searches conducted pursuant to such a condition pass muster under the Fourth
Amendment may depend upon the facts in a particular case.
Other supervised release conditions might implicate a releasee’s First Amendment rights to free
speech or free association. For example, a condition restricting a defendant’s contact with felons
may implicate a defendant’s First Amendment associational rights. However, courts have
generally upheld such conditions against First Amendment challenges. For example, courts have
upheld conditions restricting a defendant’s associations with people convicted of related 87
misdemeanors, the defendant’s associational rights notwithstanding. In addition, courts have
upheld associational restrictions couched in geographical terms. For instance, at least one court 88
has upheld a condition banning a defendant from the scene of her past criminal activities.
Likewise, where the defendant has a history of excessive gambling, courts have upheld conditions 89
that prohibit him from gambling or entering gambling establishments. Similarly, in the free-
speech context, courts have upheld conditions restricting a defendant’s possession of sexually 90
explicit material, even if the material is legal. However, they have occasionally invalidated such 91
conditions if restrictions on access to material are drawn too broadly.

82 U.S. Const. Amend. IV.
83 Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001).
84 Samson, 547 U.S. at 848 (citing United States v. Knights, 534 U.S. 112, 118-19 (2001)).
85 See Samson, 547 U.S. 843. Although Samson involved parole condition rather than a supervised release condition, it
is likely that the Court would have applied the same analysis to evaluate a warrantless search of a supervised releasee.
86 See, e.g., United States v. Dupas, 419 F.3d 916, 922 (9th Cir. 2005) (holding that a supervised release condition
permitting search, day or night, with or without warrant or probable cause by any law enforcement officer was not
facially contrary to the requirements of the Fourth Amendment).
87 See, e.g., United States v. Sines, 303 F.3d 793, 800-802 (7th Cir. 2002) (Several courts, including this court have
upheld conditions of supervised release which impose on defendants rights to freely associate with others (citing th
United States v. Schave, 186 F.3d 839, 844 (7 Cir. 1999) (no association with white supremacists) United States v. th
Showalter, 933 F.2d 573, 575-76 (7 Cir. 1991) (no association with skinheads or Nazis); United States v. Bortels, 962 th
F.2d 558, 559-60) (6 Cir. 1992) (no association with felons including the defendant’s girlfriend)).
88 See, e.g., United States v. Sicher, 239 F.3d 289, 291-92 (3d Cir. 2000).
89 See, e.g., United States v. Cothran, 302 F.3d 279, 290 (5th Cir. 2002); United States v. Brown, 136 F.3d 1176, 1186
(7th Cir. 1998).
90 See, e.g., United States v. Rearden, 349 F.3d 608, 619-21 (9th Cir. 2003) (upholding such restriction); United States
v. Bee, 162 F.3d 1232, 1235 (9th Cir. 1998) (accepting the argument that such a restriction was constitutionally

Finally, conditions requiring releasees to respond completely and truthfully to probation officers
appear to be valid notwithstanding the defendant’s Fifth Amendment privilege against self-92
incrimination. However, this rule does not operate to validate the reverse; in other words, a
defendant’s valid claim of the privilege against self-incrimination may not be considered a 93
violation of a supervised release condition.
The Tenth Amendment to the U.S. Constitution, together with general federalism principles, limit 94
a sentencing court’s authority to impose conditions that “order a state to act.” In other words,
unless the federal government has acted pursuant to constitutional authority in a particular area, it 95
cannot require states to act in that area. For example, because the federal government has not
asserted regulatory power over state drivers’ licenses, “federal courts are constitutionally barred 96
from unilaterally ordering suspensions of [defendants’] state drivers’ licenses.” Likewise,
although a sentencing court may condition a defendant’s supervised release on his compliance 97
with the terms of a state child-support order, it may not impose a more demanding payment 98
schedule than the state order requires.
However, these concerns do not limit a court’s ability to condition supervised release upon
compliance with state laws. For example, a court may require that a defendant comply with state 99
notification provisions even when those requirements are not otherwise applicable.

Although a sentencing court’s largest role in supervised release occurs at the time of initial
sentencing, it maintains an important decision-making function, and broad discretion, throughout
a defendant’s sentence. In particular, a court may: (1) modify supervised release conditions at any
time; (2) discharge a defendant from supervised release after one year into the term of supervised

permissible where necessary to “effectively address a defendant’s sexual deviance problem”).
91 See, e.g., United States v. Loy, 237 F.3d 251, 263-67 (3d Cir. 2001) (striking down as too broad a ban on the
possession of all forms of pornography).
92 United States v. Davis, 242 F.3d 49, 51-2 (1st Cir. 2001).
93 Id.
94 U.S. Const. Amed. X (“The powers not delegated to the United States by the Contitution ... are reserved to the
states.... ”). See also New York v. United States, 505 U.S. 144, 188 (1992) (the Federal Government may not compel
the States to enact or administer a federal regulatory program); United States v. A-Abras, Inc., 185 F.3d 26, 33 (2d
Cir. 1999) (“The Tenth Amendment ... must not be transgressed when a federal court exercises its considerable
discretion to impose a sentence [that includes] supervised release.).
95 The federal government often incentivizes state action by withholding or providing monetary support for particular
programs. The Tenth Amendment does not bar such monetary incentives, but it prohibits direct interference with state
police powers.
96 United States v. Snyder, 852 F.2d 471, 475 (9th Cir. Cal. 1988).
97 See, e.g., United States v. Camp, 410 F.3d 1042, 1043-46 (8th Cir. 2005).
98 See, e.g., United States v. Lakatos, 241 F.3d 690, 692-95 (9th Cir. 2001).
99 See, e.g., United States v. Coenen, 135 F.3d 938, 944-45 (5th Cir. 1998); United States v. Lawrence, 300 F.3d 1126,
1128 (9th Cir. 2002).

release; or (3) revoke a defendant’s term of supervised release, require him to return to prison, 100
and impose an additional term of supervised release to be served thereafter.
A range of factors justify modifications to original terms of supervised release. Such factors 101102103
include the nature of the crime and defendant’s history; deterrence; public safety; 104105
rehabilitation; federal sentencing guidelines and accompanying policy statements; sentencing 106107
disparity; and restitution. These grounds justify both extension of a term of supervised
release and adjustment to supervised release conditions. In addition, they allow a condition for
home detention notwithstanding the fact that home detention is characterized elsewhere in federal 108
statute as available only as an alternative to incarceration. They also occasionally justify
adjustment of the conditions dealing with the payment schedule for restitution or an unpaid 109
fine. A court may not, however, entertain a petition to modify conditions of a term of 110
supervised released based on the purported illegality of the original conditions.
Occasionally, a court has an obligation, rather than the discretion, to modify the terms or
conditions of supervised release. Specifically, a court must revoke a defendant’s supervised
release for: (1) unlawful drug or firearm possession; (2) refusal to comply with a drug testing 111
condition; or (3) three or more positive drug tests within a single year.
The same considerations which instruct modification direct revocation.112 However, courts may
consider other factors, such as the seriousness of the offense, in determining whether to revoke a 113
defendant’s supervised release. As a matter of policy, the Sentencing Guidelines suggest that a 114
court should revoke a defendant’s supervised release for the commission of any felony. Courts

100 18 U.S.C. §3583(e).
101 18 U.S.C. §§ 3583(e), 3553(a)(1).
102 18 U.S.C. §§ 3583(e), 3553(a)(2)(B).
103 18 U.S.C. §§ 3583(e), 3553(a)(2)(C).
104 18 U.S.C. §§ 3583(e), 3553(a)(2)(D).
105 18 U.S.C. §§ 3583(e), 3553(a)(4), 3553(a)(5).
106 18 U.S.C. §§ 3583(e), 3553(a)(6).
107 18 U.S.C. §§ 3583(e), 3553(a)(7).
108 18 U.S.C. §3583(e)(4). See also United States v. Kremer, 280 F.3d 219, 220 (2d Cir. 2002). However, the period in
home detention when added to time served incarcerated may not exceed the maximum term permitted as a consequence th
of revocation. United States v. Ferguson, 369 F.3d 847, 849-52 (5 Cir. 2004).
109 See United States v. Miller, 205 F.3d 1098, 1100-101 (9th Cir. 2000); United States v. Lussier, 104 F.3d 32, 36 (2d
Cir. 1997).
110 See United States v. Gross, 307 F.3d 1043, 1044 (9th Cir. 2002); United States v. Hatten, 167 F.3d 884, 886 (5th Cir.
1999); United States v. Lussier, 104 F.3d 32, 34-5 (2d Cir. 1997).
111 18 U.S.C. §3583(g). It is unclear how a defendant comes to fail a third drug test when failing the first test would
seem to evidence possession and consequently trigger mandatory revocation. This question has arisen in the case law,
and courts have held that courts may decline to assume drug possession on the basis of a failed drug test. See United th
States v. Hammonds, 370 F.3d 1032 (10 Cir. 2004) (We believe the mens rea requirement in subsection (g)(1),
requiring the government to prove by a preponderance of the evidence that the defendant knowingly and voluntarily
used the drug revealed by the drug test, sufficiently distinguishes it from subsection (g)(4) so that the latter provision th
may apply in circumstances where the former does not); United States v. Pierce, 132 F.3d 1207, 1208 (8 Cir. 1977)
(court has discretion to not find possession on the basis of a failed drug test).
112 18 U.S.C. §§ 3583(e), 3553(a). See also United States v. Marrow Bone, 378 F.3d 806, 808 (8th Cir. 2004).
113 See United States v. Williams, 443 F.3d 35, 47-48 (2d Cir. 2006).
114 U.S.S.G. §7B1.3(a)(1) (Upon a finding of a Grade A or B violation, the court shall revoke probation or supervised

may also revoke supervised release for breach of other conditions, such as the failure to notify the 115
probation officer of the defendant’s arrest.
The Federal Rules of Criminal Procedure govern revocation and modification hearings.116 For
both modification and revocation, a sentencing court must hold a hearing unless the defendant 117
waives the hearing requirement. For revocation, the rule also generally requires a prompt
hearing (unless waived) to determine whether probable cause exists to believe a violation of a 118
supervised release condition occurred. The fact that a revocation hearing is held without the 119
benefit of a jury does not make it constitutionally suspect.
Upon revocation of a term of supervised release, a defendant may be imprisoned for a term 120
ranging from one to five years depending upon the seriousness of the original crime, and upon 121
release may be subject to a new term of supervised release. Federal sentencing guidelines
recommend various terms of imprisonment to be imposed upon revocation of an original term of
supervised release, calibrated according to the seriousness of the original crime and a defendant’s 122
criminal record.
Anna C. Henning
Legislative Attorney, 7-4067

115 See, e.g., United States v. Moore, 443 F.3d 790, 794 (11th Cir. 2006).
116 Fed. Rule Crim. Pro. 32.1.
117 Id.
118 Id.
119 United States v. Carlton, 442 F.3d 802, 806-10 (2d Cir. 2006), citing in accord, United States v. Hinson, 429 F.3d
114, 118-19 (5th Cir. 2005); United States v. Work, 409 F.3d 484, 491-92 (1st Cir. 2005); United States v. Coleman, 404 th
F.3d 1103, 1104-105 (8 Cir. 2005).
120 18 U.S.C. §§ 3583(e)(3), 3559.
121 18 U.S.C. §3583(h). However, “the length of such a term of supervised release shall not exceed the term of
supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any
term of imprisonment that was imposed upon revocation of supervised release. Id.
122 U.S.S.G. §7B1.4.