Amicus Curiae Brief — Edgardo Esteras, Petitioner v. United States

No. 23-7483

Supreme Court of the United States

_________

EDGARDO ESTERAS, TIMOTHY MICHAEL JAIMEZ FKA

TIMOTHY M. WATTERS, AND TORIANO A. LEAKS, JR.,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

________

On Writ of Certiorari to the United States Court of

Appeals for the Sixth Circuit

________

BRIEF OF CRIMINAL LAW SCHOLARS AS

AMICI CURIAE IN SUPPORT OF

PETITIONERS

________

JACOB SCHUMAN

Counsel of Record

TEMPLE UNIVERSITY

BEASLEY SCHOOL OF LAW

1719 North Broad Street

Philadelphia, PA 19122

(215) 204-5840

jacob.schuman@temple.edu

ED SPREHA

LAW OFFICES OF WAGNER

AND SPREHA

2401 North Front Street

Harrisburg, PA 17110

(717) 234-7051

edspreha@wagnersprehalaw.com

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI CURIAE ................................1

SUMMARY OF ARGUMENT .....................................3

ARGUMENT ...............................................................4

I.

Parole and probation both conferred a

benefit on the defendant by granting

conditional liberty in lieu of imprisonment..4

II. Supervised release imposes a penalty on the

defendant by adding conditional liberty to

follow imprisonment. ....................................7

III. Because of the structural difference between

parole, probation, and supervised release,

§ 3583(e)(3) instructs judges not to consider

retribution when revoking supervised

release. .........................................................12

CONCLUSION ..........................................................17

i

TABLE OF AUTHORITIES

Cases

Anderson v. Corall, 263 U.S. 193 (1923) ....................6

Barnhart v. Peabody Coal Co., 537 U.S. 149 (2003) 13

Burns v. United States, 287 U.S. 216 (1932) ........ 6, 15

Escoe v. Zerbst, 295 U.S. 490 (1935) ...........................6

Gagnon v. Scarpelli, 411 U.S. 778 (1973) ...................6

Johnson v. United States, 529 U.S. 694 (2000) ..........9

Morrissey v. Brewer, 408 U.S. 471 (1972) ..... 5, 6, 7, 14

Pa. Bd. of Probation and Parole v. Scott, 524 U.S.

357 (1998) .............................................................. 7, 15

Samson v. California, 547 U.S. 843 (2006) ................7

Tapia v. United States, 564 U.S. 319 (2011) .... 3, 9, 13

Ughbanks v. Armstrong, 208 U.S. 481 (1908) ...... 6, 15

United States v. Granderson, 511 U.S. 39 (1994) ...11,

16

United States v. Haymond, 588 U.S. 634 (2019) ...3, 4,

10, 14

United States v. Knights, 534 U.S. 112 (2001) ...........7

United States v. Murray, 275 U.S. 347 (1928) .......5, 6

United States v. Reyes, 283 F.3d 446 (2d. Cir. 2002)

.............................................................................. 11, 16

United States v. Thompson, 777 F.3d 368 (7th Cir.

2015) ..........................................................................10

United States v. Trotter, 321 F. Supp. 3d 337

(E.D.N.Y. 2018)..........................................................15

ii

Statutes

18 U.S.C. § 3553 .................................................. 13, 16

18 U.S.C. § 3583 .......................................... 3, 8, 12, 14

18 U.S.C. § 3624 ..........................................................8

18 U.S.C. § 3651 (1982) ...............................................5

18 U.S.C. § 3653 (1982) ...............................................5

18 U.S.C. § 4205 (1982) ...............................................5

18 U.S.C. § 4206 (1982) ...............................................5

18 U.S.C. § 4214 (1982) ...............................................5

18 U.S.C. §§ 3561-66 ...................................................8

Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100

Stat. 3207 ...................................................................10

Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690,

102 Stat. 4181 ............................................................13

Sentencing Reform Act of 1984, Pub. L. No. 98-473,

98 Stat. 1837 ............................................................8, 9

Other Authorities

131 CONG. REC. 14,177 (1985) ............................... 9, 14

Charles D. Weisselberg & Linda Evans, Saving the

People Congress Forgot: It Is Time to Abolish the U.S.

Parole Commission and Consider All “Old Law”

Federal Prisoners for Release, 35 FED. SENT’G REP.

106 (2022) ....................................................................8

Christine S. Scott-Hayward, Shadow Sentencing:

The Imposition of Federal Supervised Release, 18

BERKELEY J. CRIM. L. 180 (2013) ..............................11

Departments of Commerce, Justice, and State, the

Judiciary, and Related Agencies Appropriations for

iii

1986: Hearings Before a Subcomm. of the H. Comm.

on Appropriations, 99th Cong. 64 (1985)............ 10, 14

Fiona Doherty, Indeterminate Sentencing Returns:

The Invention of Supervised Release, 88 N.Y.U. L.

REV. 958 (2013) .................................................... 10, 16

Jacob Schuman, Revocation and Retribution, 96

WASH. L. REV. 881 (2021) .......................... 3, 13, 15, 16

S. REP. NO. 98-225 (1983) .................................. 8, 9, 14

U.S. SENTENCING COMM’N, FEDERAL OFFENDERS

SENTENCED TO SUPERVISED RELEASE (July 2010) ....11

U.S.S.G. Ch. 7, Pt. A ......................................... 8, 9, 15

iv

INTEREST OF AMICI CURIAE1

Amici are legal scholars who teach and

research criminal law and procedure.2 They have no

personal interests in this case. Their sole interest is

in the fair and proper application of federal criminal

law. Their names are:

•

Valena Beety, Robert H. McKinney Professor of

Law at Indiana University Maurer School of Law.

•

Zamir Ben-Dan, Assistant Professor of Law at

Temple University Beasley School of Law.

•

Douglas Berman, Newton D. Baker-Baker &

Hostetler Chair in Law at the Ohio State

University Moritz College of Law.

•

Ingrid Eagly, Professor of Law at UCLA School of

Law.

•

Eric Fish, Acting Professor of Law at UC Davis

School of Law.

•

Cynthia Godsoe, Professor of Law at Brooklyn Law

School.

•

Sarah Gottlieb, Assistant Clinical Professor of Law

at Washington and Lee University School of Law.

1 No party authored this brief in whole or in part, and no one

other than amici and their counsel have paid for the

preparation or submission of this brief.

2 Amici submit this brief in their individual capacities only, not

on behalf of the institutions with which they are affiliated.

1

•

Alison Guernsey, Clinical Professor of Law at the

University of Iowa College of Law.

•

Alexis Hoag-Fordjour, Associate Professor of Law

at Brooklyn Law School.

•

Aliza Hochman Bloom, Assistant Professor of Law

at Northeastern University School of Law.

•

Alexandra Klein, Assistant Professor of Law at

Washington and Lee University School of Law.

•

Daniel

Medwed,

University

Distinguished

Professor of Law and Criminal Justice at

Northeastern University School of Law.

•

Jacob Schuman, Associate Professor of Law at

Temple University Beasley School of Law.

•

Christine Scott-Hayward, Professor of Law,

Criminology, and Criminal Justice at California

State University, Long Beach.

•

Charles D. Weisselberg, Yosef Osheawich

Professor of Law at UC Berkeley School of Law.

2

SUMMARY OF ARGUMENT

In this case, district judges revoked petitioners’

supervised release and sentenced them to

imprisonment to reflect the seriousness of their

violations, promote respect for the law, and provide

just punishment, also known as “retribution.” Tapia

v. United States, 564 U.S. 319, 326 (2011).

Retribution is a “backward-looking” theory of

punishment based on the defendant’s “moral

culpability.”

Jacob Schuman, Revocation and

Retribution, 96 WASH. L. REV. 881, 890 (2021)

(citations omitted). Petitioners contend that 18

U.S.C. § 3583(e)(3) forbids judges from considering

retribution when revoking supervised release. This

brief of criminal law scholars as amici curiae in

support of petitioners explains why § 3583(e)(3)

instructs judges not to revoke supervised release for

the purpose of retribution.

Section 3583(e)(3) authorizes judges to revoke

supervised release after considering all the purposes

of punishment except for retribution. Why does

§ 3583(e)(3) exclude retribution as a consideration?

The answer is the “structural difference” between

parole, probation, and supervised release. United

States v. Haymond, 588 U.S. 634, 652 (2019) (plurality

op.). Parole and probation both conferred a benefit on

the defendant by granting conditional liberty in lieu

of imprisonment. Supervised release, by contrast,

imposes a penalty by adding a term of conditional

liberty to follow imprisonment. Therefore, violating a

condition of parole or probation was arguably a moral

wrong deserving of retribution. But violating a

condition of supervised release is not a moral wrong

and does not deserve retributive punishment.

3

ARGUMENT

The reason that § 3583(e)(3) prohibits judges

from considering retribution when revoking

supervised release is the “structural difference”

between parole, probation, and supervised release.

Haymond, 588 U.S. at 652. Parole and probation both

conferred a benefit, so violating their conditions was

arguably an immoral act deserving of retributive

punishment. By contrast, supervised release imposes

a penalty, and therefore violating its conditions only

merits punishment for purposes of deterrence,

incapacitation, and rehabilitation, not retribution.

I.

Parole and probation both conferred a

benefit on the defendant by granting

conditional

liberty

in

lieu

of

imprisonment.

Before 1984, the federal government used two

forms of community supervision: parole and

probation. Haymond, 588 U.S. at 651. Parole allowed

defendants to earn early release from prison, whereas

probation offered them the chance to avoid prison

entirely. Because both forms of supervision granted

the defendant conditional liberty in lieu of

imprisonment, this Court described them both as

conferring a benefit.3

3 In practice, the power disparity between the defendant and the

government may have made parole and probation more coercive

than compassionate. Nevertheless, the formal relationship

between each form of supervision and the defendant’s potential

term of imprisonment led this Court to characterize them as

benefits.

4

Parole allowed a defendant who had served

one-third of their prison term to request early release

on condition of their good behavior, to serve the rest of

their sentence under supervision in the community.

See 18 U.S.C. §§ 4205-06 (1982). If a defendant

violated a condition of parole, then an administrative

board could “revoke” their release and return them to

prison to serve the rest of their original sentence. Id.

§ 4214.

The “purpose” of parole was “to help

individuals reintegrate into society as constructive

individuals as soon as they are able, without being

confined for the full term of the sentence imposed.”

Morrissey v. Brewer, 408 U.S. 471, 477 (1972).

Probation allowed sentencing judges to

suspend a defendant’s prison term on condition of

their good behavior, to serve a term of supervision in

the community. See 18 U.S.C. § 3651 (1982). If a

defendant violated a condition of probation, then the

judge could “revoke” the suspension and impose their

original prison sentence. Id. § 3653. The “great

desideratum” of probation was “the giving to young

and new violators of law a chance to reform and to

escape the contaminating influence of association

with hardened or veteran criminals in the beginning

of the imprisonment.” United States v. Murray, 275

U.S. 347, 357 (1928).

Parole and probation were slightly different

from each other, because parole reduced the

defendant’s term of imprisonment, whereas probation

allowed the defendant to avoid prison entirely.

Nevertheless, both forms of supervision served as an

“amelioration” of punishment by granting the

defendant conditional liberty in lieu of imprisonment.

5

Murray, 275 U.S. at 357 (probation); Anderson v.

Corall, 263 U.S. 193, 196 (1923) (parole). As a result,

this Court described them both as a benefit to the

defendant.

In the early days of the supervision system, for

example, the Court held that prisoners had no right to

a hearing when seeking early release, because parole

was “a favor,” which “gives to a criminal … the

privilege to make application,” and was “a question of

state policy exclusively.” Ughbanks v. Armstrong, 208

U.S. 481, 487-88 (1908). Similarly, the Court held

that probation “provide[d] a period of grace” and was

“conferred as a privilege, and cannot be demanded as

a right. It is a matter of favor, not of contract.” Burns

v. United States, 287 U.S. 216, 220 (1932); see also

Escoe v. Zerbst, 295 U.S. 490, 492-93 (1935) (same).

In later cases, the Court cautioned that the

process due when revoking parole and probation did

not depend on their categorization as a “privilege”

versus a “right,” but still concluded that the

proceedings could be “informal” because of the benefit

that the government had conferred on the defendant.

Morrissey, 408 U.S. at 482; see also Gagnon v.

Scarpelli, 411 U.S. 778, 781-82 & n.4 (1973). The

Court explained that granting parole and probation

required the government to take “a risk that [the

defendant] will not be able to live in society without

committing additional antisocial acts,” while enabling

them “to do a wide range of things open to persons who

have never been convicted of any crime,” including “be

gainfully employed … be with family and friends and

… form the other enduring attachments of normal

life.” Morrissey, 408 U.S. at 482-83. The government

6

therefore had “an overwhelming interest in being able

to return the individual to imprisonment without the

burden of a new adversary criminal trial if in fact he

has failed to abide by the conditions.” Id. at 483.

Finally, the Court took a similar view in its

Fourth Amendment cases, holding that the

exclusionary rule did not apply to revocation of parole,

which “accord[ed] a limited degree of freedom in

return for the parolee’s assurance that he will comply

with the often strict terms and conditions of his

release.” Pa. Bd. of Probation and Parole v. Scott, 524

U.S. 357, 365 (1998). Applying the exclusionary rule

might actually work to defendants’ “disadvantage,”

the Court explained, because it “could reduce the

State’s incentive to extend parole in the first place.”

Id. at 367; see also Samson v. California, 547 U.S. 843,

850 (2006) (applying similar logic to uphold parole

condition authorizing suspicionless searches); United

States v. Knights, 534 U.S. 112, 118-19 (2001) (same,

for probation condition authorizing warrantless home

searches). Because parole and probation both allowed

the defendant to avoid prison by serving a term of

supervision in the community, the Court described

them both as a benefit.

II.

Supervised release imposes a penalty on

the defendant by adding conditional

liberty to follow imprisonment.

In 1984, Congress passed the Sentencing

Reform Act (SRA), which abolished parole and

replaced it with a new form of community supervision

7

called “supervised release.”4 Pub. L. No. 98-473, 98

Stat. 1837, 1999-2000 (codified as amended at 18

U.S.C. § 3583). Going forward, defendants would

have to serve their prison terms in full, with no

opportunity for early release, followed by separate

terms of supervised release imposed at sentencing.

Because supervised release adds conditional liberty to

follow imprisonment, rather than in lieu of

imprisonment, this Court described it as imposing a

penalty on the defendant, not a benefit.

Supervised release is a term of conditional

liberty under supervision in the community, imposed

by the judge at sentencing to follow the defendant’s

term of imprisonment. See 18 U.S.C. §§ 3624(a) &

3583(a). The “primary goal” of supervised release is

to “ease the defendant’s transition into the community

after the service of a long prison term … or to provide

rehabilitation [through] … supervision and training

programs after release,” and it “may not be imposed

for purposes of punishment,” which is “served to the

extent necessary by the term of imprisonment.” S.

REP. NO. 98-225, at 124-25 (1983).

The replacement of parole with supervised

release was “meant to make a significant break with

The SRA preserved probation as an option for sentencing

judges, but eliminated their authority to “suspend” prison terms

and instead “recognized probation as a sentence in itself.”

U.S.S.G. Ch. 7, Pt. A.2(a). The probation provisions are currently

codified at 18 U.S.C. §§ 3561-66. There are also a small number

of federal prisoners convicted of crimes committed before the

SRA took effect who are still eligible for parole. See Charles D.

Weisselberg & Linda Evans, Saving the People Congress Forgot:

It Is Time to Abolish the U.S. Parole Commission and Consider

All “Old Law” Federal Prisoners for Release, 35 FED. SENT’G REP.

106, 107-08 (2022).

4

8

prior practice.” Johnson v. United States, 529 U.S.

694, 724-25 (2000) (Scalia, J., dissenting). “Unlike

parole,” which “replace[d] a portion of the sentence of

imprisonment,” supervised release is imposed “in

addition to any term of imprisonment imposed by the

court.” U.S.S.G. Ch. 7, Pt. A.2(b). Lawmakers

replaced parole with supervised release for two

reasons. First, they had lost faith in the rehabilitative

theory of imprisonment, so no longer saw any reason

to release prisoners early. Tapia, 564 U.S. at 324-25.

Second, they sought to rationalize the supervision

system by “giving district courts the freedom to

provide postrelease supervision for those, and only

those, who needed it.” Johnson, 529 U.S. at 709.

Originally, the SRA did not provide any

mechanism for judges to revoke supervised release,

instead instructing that they should treat violations

as “contempt of court.” 98 Stat. at 2000. The Senate

Report explained that “supervised release [wa]s not

subject to revocation for a violation” because

lawmakers “d[id] not believe that a minor violation of

a condition of supervised release should result in

resentencing of the defendant and because [they]

believed that a more serious violation should be dealt

with as a new offense.” S. REP. NO. 98-225, at 125.

Before long, however, the Administrative Office

of U.S. Courts and U.S. Parole Commission started

lobbying Congress to create a more “streamlined

procedure for enforcing the conditions of supervised

release,” 131 CONG. REC. 14,177 (1985), complaining

that contempt proceedings were “cumbersome,”

“inefficien[t],” and made responding to violations

much “more difficult and time consuming,”

Departments of Commerce, Justice, and State, the

9

Judiciary, and Related Agencies Appropriations for

1986: Hearings Before a Subcomm. of the H. Comm.

on Appropriations, 99th Cong. 64, 66 (1985)

(statement of Benjamin F. Baer, Chairman, U.S.

Parole Comm’n). Congress granted their wish in the

Anti-Drug-Abuse Act of 1986 (ADAA), which

authorized judges to “revoke” supervision and impose

a prison sentence if a defendant violated a condition

of supervised release. Pub. L. No. 99-570, 100 Stat.

3207, 3207-7 (codified as amended at 18 U.S.C.

§ 3583(e)(3)). Effectively, the ADAA “grafted the

revocation mechanism for probation onto supervised

release.” Fiona Doherty, Indeterminate Sentencing

Returns: The Invention of Supervised Release, 88

N.Y.U. L. REV. 958, 1002 (2013).

Because supervised release adds a term of

conditional liberty to follow imprisonment, rather

than in lieu of imprisonment, this Court has described

it not as conferring a benefit on the defendant, but

instead as imposing a penalty. For example, a

plurality of the Court found that the jury right applied

to revocation of supervised release due to its

“structural difference” from parole: “[U]nlike parole,”

which “suspend[ed] part … of a defendant’s prescribed

prison term and afford[ed] him a period of conditional

liberty as an ‘act of grace,’” supervised release “wasn’t

introduced to replace a portion of the defendant’s

prison term, only to encourage rehabilitation after the

completion of his prison term.” Haymond, 588 U.S. at

643, 652 (citation omitted); see also United States v.

Thompson, 777 F.3d 368, 372 (7th Cir. 2015) (Posner,

J.) (“Supervised release does not shorten prison time;

instead it imposes restrictions on the prisoner to take

effect upon his release from prison. Parole mitigates

punishment; supervised release augments it.”).

10

The Court also identified the same structural

difference between probation and supervised release,

holding that the statute governing revocation of

probation should not be construed in pari materia

with the statute governing revocation of supervised

release because “[s]upervised release, in contrast to

probation, is not a punishment in lieu of

incarceration,” but rather “follow[s] up prison terms.”

United States v. Granderson, 511 U.S. 39, 50 (1994).

Therefore, the Court concluded, they are “sentences of

unlike character.” Id. at 51; see also United States v.

Reyes, 283 F.3d 446, 461 (2d. Cir. 2002) (Cabranes, J.)

(“supervised release … in contrast to probation, is

‘meted out in addition to, not in lieu of,

incarceration.’”) (citation omitted).

One might wonder whether, in practice,

supervised release could confer a benefit on the

defendant, if the sentencing judge imposed it in

conjunction with a shorter prison term. However,

neither the governing statute nor the Sentencing

Guidelines instructs judges to make this trade-off,

and there is no reason to think it is typical. To the

contrary, the empirical evidence shows that judges

almost always impose the term of supervised release

recommended by the Sentencing Guidelines, see U.S.

SENTENCING

COMM’N,

FEDERAL

OFFENDERS

SENTENCED TO SUPERVISED RELEASE 57 (July 2010),

and that it is “neither discussed by judges at the

sentencing hearing, nor mentioned by the parties in

sentencing submissions,” Christine S. Scott-Hayward,

Shadow Sentencing: The Imposition of Federal

Supervised Release, 18 BERKELEY J. CRIM. L. 180, 206

(2013).

Moreover, mandatory-minimum prison

sentences often make it impossible for judges to

11

reduce imprisonment in favor of supervised release.

In both theory and practice, therefore, supervised

release imposes a penalty, not a benefit.

III.

Because of the structural difference

between

parole,

probation,

and

supervised release, § 3583(e)(3) instructs

judges not to consider retribution when

revoking supervised release.

The structural difference between parole,

probation, and supervised release explains why

§ 3583(e)(3) excludes retribution as a factor for judges

to consider when revoking supervised release.

Because parole and probation both conferred a

benefit, violating their conditions was arguably a

moral wrong deserving of retributive punishment. By

contrast, because supervised release imposes a

penalty, violating its conditions only merits

punishment

for

purposes

of

deterrence,

incapacitation, and rehabilitation, not retribution.

Section 3583(e)(3) authorizes judges to revoke

supervised release “after considering the factors set

forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C),

(a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).” This list of

cross-references to 18 U.S.C. § 3553(a) includes eight

considerations: (1) deterrence, (2) incapacitation,

(3) rehabilitation, (4) the characteristics of the offense

and the offender, (5) the Sentencing Guidelines’

recommended

sentence,

(6)

the

Sentencing

Guidelines’ policy statements, (7) the need to avoid

unwarranted sentencing disparities, and (8) the need

to provide restitution to any victims. The only

§ 3553(a) factors omitted are retribution and the

12

kinds of sentences available.

§§ 3553(a)(2)(A) & 3553(a)(3).

See 18 U.S.C.

The best interpretation of § 3583(e)(3) is that a

judge “may not take account” of retribution or the

kinds of sentences available when revoking

supervised release.

Tapia, 564 U.S. at 326

(interpreting identically worded 18 U.S.C. § 3583(c)).

According to the interpretative canon of expressio

unius est exclusion alterius, a statute that lists some

items of an “associated group or series” but omits

others “justif[ies] the inference that [the] items not

mentioned were excluded by deliberate choice.”

Barnhart v. Peabody Coal Co., 537 U.S. 149, 168

(2003) (citation omitted). Section 3583(e)(3)’s partial

list of § 3553(a) factors is “a classic example of where

the expressio unius canon should apply.” Schuman,

supra, at 912.

Indeed, the original version of

§ 3583(e)(3) did not include incapacitation as a factor,

but Congress later amended the provision to add it,

suggesting careful legislative attention to the contents

of the list. See Anti-Drug Abuse Act of 1988, Pub. L.

No. 100-690, 102 Stat. 4181, 4419 (codified at 18

U.S.C. § 3583(e)(3)).

Although § 3583(e)(3) prohibits judges from

considering retribution or the kinds of sentences

available when revoking supervised release, it does

not explain why. The reason for excluding the kinds

of sentences available is obvious: every subsection of

§ 3583(e) authorizes judges to take a different action,

such as terminating, modifying, or revoking

supervised release. For each of these actions, there

are no other kinds of sentences available, and

therefore no point in considering them. See Schuman,

supra, at 913.

13

But why does § 3583(e)(3) exclude retribution?

Retributivism is a “backward-looking” theory of

sentencing that justifies punishment as a good-initself, based on the defendant’s “moral culpability.”

Schuman, supra, at 890 (citations omitted).

It

contrasts to utilitarianism, which is a “forwardlooking” theory of sentencing that justifies

punishment as a means to “achiev[e] good outcomes,”

such as deterrence, incapacitation, and rehabilitation.

Id. at 891. Why would lawmakers want to forbid

judges from revoking supervised release based on the

defendant’s moral culpability?

The legislative history for § 3583(e)(3) does not

directly address this question. The discussions about

how judges should respond to supervised-release

violations in the Senate Report and the statements of

the Administrative Office of U.S. Courts and U.S.

Parole Commission all focused on utilitarian concerns

like efficiency, public safety, and rehabilitation. See

131 CONG. REC. 14,177; 99th Cong. at 66; S. REP. NO.

98-225, at 124-25. They suggest that lawmakers were

not motivated by retribution, but do not say explicitly

why they excluded it as a consideration.

The best explanation for why § 3583(e)(3)

forbids judges from revoking supervised release for

retribution is the “structural difference” between

parole, probation, and supervised release. Haymond,

588 U.S. at 652. Parole and probation both conferred

a benefit by allowing the defendant to serve a term of

conditional liberty in the community rather than a

term of imprisonment. Because the government had

taken a “risk,” Morrissey, 408 U.S. at 483, by granting

the defendant “a limited degree of freedom in return

14

for [his] assurance that he will comply with the …

conditions of his release,” Scott, 524 U.S. at 365, it was

arguably immoral for the defendant to violate those

conditions. In other words, violating a condition of

parole or probation was a betrayal of the “favor” and

“privilege” bestowed by the government. Burns, 287

U.S. at 220; Ughbanks, 208 U.S. at 487. That betrayal

could be considered a “moral wrong” deserving of

retributive punishment. Schuman, supra, at 907.

Supervised release, by contrast, does not confer

a benefit on the defendant, but instead imposes a

penalty by adding a term of conditional liberty to

follow imprisonment. The government takes no risk

by imposing supervised release and grants no freedom

in return for the defendant’s assurance that they will

comply with the conditions.

To the contrary,

supervised release reduces the government’s risk by

subjecting the defendant to an additional term of

supervision after they complete their prison sentence.

Indeed, using the word “revoke” in relation to

supervised release is actually a “misnomer” – the

government has granted the defendant nothing, so

there is nothing for it to revoke. United States v.

Trotter, 321 F. Supp. 3d 337, 346 (E.D.N.Y. 2018)

(Weinstein, J.). Defendants who violate a condition of

supervised release therefore betray no favor or

privilege bestowed by the government.5 Violations of

Although the Sentencing Guidelines describe violations of

probation and supervised release as a “breach of trust,” they use

that phrase solely to explain the distinction between sentencing

violators for “failing to abide by the conditions of the courtordered supervision” versus “the particular conduct triggering

the revocation as if that conduct were being sentenced as new

federal criminal conduct.” U.S.S.G. Ch. 7, Pt. A.3(b). The

5

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supervised release may be “misguided and even

harmful,” and they may merit punishment for

purposes

of

deterrence,

incapacitation,

or

rehabilitation. Schuman, supra, at 907. But they do

not constitute moral wrongs deserving of retribution.

See id. at 907-08.

The text of the governing statutes reflects this

logic. Although the ADAA “grafted the revocation

mechanism for probation onto supervised release,”

Doherty, supra, at 1002, lawmakers still carefully

distinguished between the factors judges should

consider when revoking probation versus revoking

supervised release.

The provision authorizing

revocation of probation says that judges should

“consider[] the factors set forth in section 3553(a) to

the extent that they are applicable,” which would

include retribution. 18 U.S.C. § 3565(a). By contrast,

§ 3583(e)(3) authorizes judges to revoke supervised

release after considering all the purposes of

sentencing except for retribution.

The best

explanation for the differences between these

provisions is that probation confers a benefit, whereas

supervised release applies a penalty. See Granderson,

511 U.S. at 50-51; Reyes, 283 F.3d at 461. Therefore,

violations of probation arguably deserve retributive

punishment, whereas violations of supervised release

Guidelines adopted the former approach for practical reasons,

“[g]iven the relatively narrow ranges of incarceration available

in many cases, combined with the potential difficulty in

obtaining information necessary to determine specific offense

characteristics.” Id. They also acknowledge “considerable

debate as to whether the sanction imposed upon revocation of

probation should be different from that imposed upon revocation

of supervised release.” Id. Ch. 7, Pt. A.4; see also Schuman,

supra, at 909-11.

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do not. Because of the structural difference between

parole, probation, and supervised release, § 3583(e)(3)

forbids judges from revoking supervised release for

retribution.

CONCLUSION

below.

This Court should reverse the judgments

Respectfully submitted,

JACOB SCHUMAN

Counsel of Record

TEMPLE UNIVERSITY

BEASLEY SCHOOL OF LAW

1719 North Broad Street

Philadelphia, PA 19122

(215) 204-5840

jacob.schuman@temple.edu

EDWARD SPREHA

LAW OFFICES OF WAGNER

AND SPREHA

2401 North Front Street

Harrisburg, PA 17110

(717) 234-7051

edspreha@wagnersprehala

w.com

December 16, 2024

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