Amicus Curiae Brief — Isabel Rico, Petitioner v. United States

NO. 24-1056

In the

Supreme Court of the United States

________________

ISABEL RICO,

v.

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

________________

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

________________

BRIEF OF NATIONAL ASSOCIATION OF

FEDERAL DEFENDERS AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

________________

Paul Alessio Mezzina

Zoe M. Beiner

KING & SPALDING LLP

1700 Pennsylvania Ave. NW

Washington, DC 20006

Keith M. Donoghue

Jessica Stengel

Amicus Committee

NATIONAL ASSOCIATION

OF FEDERAL DEFENDERS

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

Counsel for Amicus Curiae

August 15, 2025

TABLE OF CONTENTS

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

STATEMENT OF INTEREST ................................... 1

SUMMARY OF THE ARGUMENT ........................... 2

ARGUMENT ............................................................... 3

I.

Congress created supervised release to

provide post-release supervision while

promoting uniformity and predictability in

sentencing ............................................................ 3

II. Experience shows that the legal definition of

absconding from supervision is unclear and

unpredictable ....................................................... 8

III. Judicially adopting fugitive tolling would

undermine Congress’s purpose in creating

supervised release ............................................. 13

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

ii

TABLE OF AUTHORITIES

Cases

Edwards v. Va. State Dep’t of Corr.,

462 F. Supp. 164 (W.D. Va. 1978) ........................... 9

Francois v. Florida,

695 So.2d 695 (Fla. 1997) ...................................... 13

Gozlon-Peretz v. United States,

498 U.S. 395 (1991) .................................................. 6

In re Townsend,

554 N.E.2d 1336 (Ohio 1990) ................................ 13

Johnson v. United States,

529 U.S. 694 (2000) .............................................. 3, 5

Johnson v. United States,

576 U.S. 591 (2015) ................................................ 13

Leszynski v. U.S. Parole Comm’n,

721 F. Supp. 1108 (W.D. Mo. 1989)....................... 11

Mistretta v. United States,

488 U.S. 361 (1989) .............................................. 4, 6

Mont v. United States,

587 U.S. 514 (2019) ................................................ 15

Morrissey v. Brewer,

408 U.S. 471 (1972) .................................................. 9

Nicholas v. United States,

527 F.2d 1160 (9th Cir. 1976)................................ 13

Papadakis v. Warden of Metro. Corr. Ctr.,

822 F.2d 240 (2d Cir. 1987) ................................... 12

Rodriguez v. United States,

480 U.S. 522 (1987) ................................................ 15

iii

Tapia v. United States,

564 U.S. 319 (2011) .............................................. 6, 7

Toomey v. Young,

449 F. Supp. 336 (D. Conn. 1978) ......................... 12

United States v. Barinas,

865 F.3d 99 (2d Cir. 2017) ....................................... 3

United States v. Booker,

543 U.S. 220 (2005) .................................................. 4

United States v. Buchanan,

638 F.3d 448 (4th Cir. 2011)................................ 3, 8

United States v. Cartagena-Lopez,

979 F.3d 356 (5th Cir. 2020).................................... 8

United States v. Gomez-Diaz,

415 F. App’x 890 (10th Cir. 2011) ......................... 10

United States v. Green,

429 F. Supp. 1036 (W.D. Tex. 1977)...................... 13

United States v. Haymond,

588 U.S. 634 (2019) .................................................. 6

United States v. Hernández-Ferrer,

599 F.3d 63 (1st Cir. 2010) .................................... 16

United States v. Ignacio Juarez,

601 F.3d 885 (9th Cir. 2010).................................. 10

United States v. Island,

916 F.3d 249 (3d Cir. 2019) ........... 2, 3, 8, 10, 14, 15

United States v. Johnson,

529 U.S. 53 (2000) .................................................... 2

United States v. Luck,

664 F.2d 311 (D.C. Cir. 1981) .................................. 9

iv

United States v. Murguia-Oliveros,

421 F.3d 951 (9th Cir. 2005).............................. 3, 10

United States v. Paden,

558 F. Supp. 636 (D.D.C. 1983) ............................. 13

United States v. Swick,

137 F.4th 336 (5th Cir. 2025) ............................ 3, 11

United States v. Talley,

83 F.4th 1296 (11th Cir. 2023) .............................. 16

United States v. Thompson,

924 F.3d 122 (4th Cir. 2019)............................ 10, 15

United States v. Watson,

633 F.3d 929 (9th Cir. 2011).................................. 11

United States v. Workman,

617 F.2d 48 (4th Cir. 1980).................................... 12

Statutes

18 U.S.C. § 3006A ....................................................... 1

18 U.S.C. § 3582 ..................................................... 6, 7

18 U.S.C. § 3583 ............................................... 6, 7, 16

18 U.S.C. § 4205 (1982) .............................................. 4

18 U.S.C. § 4206 (1982) .............................................. 4

Parole Commission and Reorganization Act,

Pub. L. No. 94-233, 90 Stat. 219 (1976) ................ 11

Regulations

28 C.F.R. § 2.52(c)(1) (1982) ..................................... 11

v

Other Authorities

Adair, David N., Jr.

Looking at the Law,

51 FED. PROB. 75 (1987) ......................................... 12

Baber, Laura M. & James L. Johnson,

Early Termination of Supervision:

No Compromise to Community Safety,

77 FED. PROB. 17 (2013) ......................................... 14

Blasko, Brandy L. & Faye S. Taxman,

Are Supervision Practices Procedurally

Fair? Development and Predictive Utility

of a Procedural Justice Measure for Use

in Community Corrections Settings,

45 CRIM. JUST. & BEHAVIOR 402 (2018) ............. 7, 16

DaGrossa, Joseph A.

Improving Legitimacy in Community-Based

Corrections, 78 FED. PROB. 22 (2014) ...................... 8

DAVIS, KENNETH CULP

DISCRETIONARY JUSTICE:

A PRELIMINARY INQUIRY (1969) ............................... 5

FRANKEL, MARVIN E.

CRIMINAL SENTENCES:

LAW WITHOUT ORDER (1973).............................. 5, 16

O’Hear, Michael M.

The Original Intent

of Uniformity in Federal Sentencing,

74 U. CIN. L. REV. 749 (2006) .................................. 5

S. Rep. No. 98-225 (1983),

as reprinted in 1984 U.S.C.C.A.N. 3182 ......... 4, 5, 7

vi

Schuman, Jacob

Prosecutors in Robes,

77 STAN. L. REV. 629 (2025) ................................... 14

U.S. DEP’T OF JUST.,

RESOURCES AND DEMOGRAPHIC DATA FOR

INDIVIDUALS ON FEDERAL PROBATION OR

SUPERVISED RELEASE (2023) .................................. 14

Wright, Kevin A. & Faith E. Gifford,

Legal Cynicism, Antisocial Attitudes, and

Recidivism: Implications for a Procedurally

Just Community Corrections, 12 VICTIMS &

OFFENDERS 624 (2017) ............................................. 8

STATEMENT OF INTEREST1

The National Association of Federal Defenders

(NAFD) was founded in 1995 as a nationwide,

volunteer organization of attorneys who work for

federal public defender offices and community

defender organizations authorized under the Criminal

Justice Act, 18 U.S.C. § 3006A. A guiding principle of

NAFD is to promote the fair administration of justice

in federal courts by appearing as amicus curiae in

litigation relating to issues affecting indigent criminal

defendants. Every year, federal defenders represent

tens of thousands of indigent criminal defendants in

federal courts, including many defendants accused of

violating their supervised release. Accordingly, NAFD

members have particular expertise and interest in the

subject matter of this case.

1 Pursuant to Supreme Court Rule 37.6, amicus curiae states

that no counsel for any party authored this brief in whole or in

part and that no entity or person, aside from amicus curiae, its

members, and its counsel, made any monetary contribution

toward the preparation or submission of this brief.

2

SUMMARY OF THE ARGUMENT

Congress created supervised release to provide

former prisoners with post-release supervision while

achieving greater uniformity and certainty in

sentencing. Judicially adopting a fugitive-tolling

doctrine would undermine these goals by injecting an

unclear and unpredictable legal standard into the

heart of supervised release. Because courts have long

struggled to define what it means to abscond from

supervision, the “ease and clarity of the current

regime” would be “transform[ed]” into “an onerous

task for the courts, and a complicated regime for the

supervisee in attempting to determine … when his

term of supervised release ends.” United States v.

Island, 916 F.3d 249, 259 (3d Cir. 2019) (Rendell, J.,

dissenting).

A judicially adopted fugitive-tolling doctrine

would also undermine rehabilitation, the principal

purpose Congress intended supervised release to

serve. Empirical research suggests that consistency

and predictability in administering supervised release

helps win buy-in from supervisees, promoting their

successful reentry. However, defendants would likely

experience fugitive tolling as arbitrary and degrading,

which would be counterproductive in their “transition

to community life.” United States v. Johnson, 529 U.S.

53, 59 (2000).

Consistent with the purpose of

supervised release, this Court should avoid the

disparities and uncertainties that would come with a

judicially created fugitive-tolling doctrine and reverse

the judgment below.

3

ARGUMENT

The circuits that have adopted fugitive tolling

claim that it furthers the “purpose” of supervised

release by ensuring that defendants cannot avoid

supervision by absconding. United States v. MurguiaOliveros, 421 F.3d 951, 953 (9th Cir. 2005); see also

United States v. Swick, 137 F.4th 336, 344 (5th Cir.

2025); Island, 916 F.3d at 255; United States v.

Barinas, 865 F.3d 99, 107, 109-10 (2d Cir. 2017);

United States v. Buchanan, 638 F.3d 448, 455 (4th Cir.

2011).

That argument, however, misunderstands the

purpose of supervised release. Congress created

supervised release not only to provide defendants with

post-release supervision, but also to ensure that their

sentences would be uniform and predictable, thus

enhancing rehabilitation.

Given these goals,

lawmakers wisely omitted any provision for fugitive

tolling, which would vary the duration of a sentence

based on the discretion of judges and probation officers

applying an unclear and unpredictable legal standard.

Judicially adopting fugitive tolling would invite

disparity and uncertainty and therefore undermine

Congress’s purpose in creating supervised release.

I.

Congress created supervised release to

provide post-release supervision while

promoting uniformity and predictability in

sentencing.

Congress created supervised release in the

Sentencing Reform Act of 1984 (SRA). Johnson v.

United States, 529 U.S. 694, 696-97 (2000). The SRA’s

“most important” goal was to eliminate the

4

“unfettered discretion the law confer[red] on those

judges and parole authorities responsible for imposing

and implementing the sentence” in order to promote

“greater certainty and uniformity in sentencing.”

S. Rep. No. 98-225, at 38 (1983), as reprinted in 1984

U.S.C.C.A.N. 3182, 3221; see also United States v.

Booker, 543 U.S. 220, 267 (2005) (describing SRA’s

“basic objective of promoting uniformity in

sentencing”). One way the SRA achieved these goals

was by abolishing parole and replacing it with

supervised release. See S. Rep. No. 98-225, at 38.

Under the old parole system, a district judge

would sentence a convicted defendant to a term of

imprisonment, and after serving one-third of that

term, the defendant could ask to serve the rest of the

sentence under supervision in the community. See 18

U.S.C. § 4205 (1982), repealed by Comprehensive

Crime Control Act, Pub. L. No. 98-473, tit. II, 98 Stat.

1976 (1984). Whether a defendant would be granted

early release from prison depended on an assessment

of his rehabilitative prospects by the United States

Parole Commission. 18 U.S.C. § 4206 (1982), repealed

by Comprehensive Crime Control Act, Pub. L. No. 98473, tit. II, 98 Stat. 1976. Since the defendant’s term

of imprisonment was not fixed at the time of

imposition, this system was known as “indeterminate”

sentencing. Mistretta v. United States, 488 U.S. 361,

363 (1989).

The “grave defect” of indeterminate sentencing

was that it made punishments inconsistent and

indefinite. S. Rep. No. 98-225, at 49. Because judges

and parole officials could adjust the length of a

defendant’s imprisonment based on their assessments

5

of his behavior, there were “substantial disparities” in

the system, and “no one [wa]s ever certain how much

time a particular offender w[ould] serve.” Id. at 48-49.

Commentators at the time condemned the “completely

unstructured discretionary power” of parole officials,

which left “[e]ven the most flagrant abuse of discretion

… likely to go uncorrected.” KENNETH CULP DAVIS,

DISCRETIONARY JUSTICE: A PRELIMINARY INQUIRY 12628 (1969).

Reformers like District Judge Marvin Frankel

argued that a defendant in the parole system likely

experienced “as cruel and degrading,” rather than

rehabilitative, “the command that he remain in

custody for some uncertain period, while his keepers

study him, grade him in secret, and decide if and when

he may be let go.” MARVIN E. FRANKEL, CRIMINAL

SENTENCES: LAW WITHOUT ORDER 96 (1973). In Judge

Frankel’s view, the disparity and unpredictability of

parole was “an affront to the dignity of defendants,”

which caused them to “experience unnecessary

anxiety and anger,” “impaired their ability to make

well-informed decisions about their conduct,” and

“fostered a sense of resentment … against the legal

system.” Michael M. O’Hear, The Original Intent of

Uniformity in Federal Sentencing, 74 U. CIN. L. REV.

749, 760 (2006) (quotation marks omitted). These

critiques “were consistently echoed by reformers

following in Frankel’s footsteps, right through … the

SRA.” Id. at 805; see also S. Rep. No. 98-225, at 37

(attesting to influence of Frankel on SRA).

By replacing parole with supervised release, the

SRA “meant to make a significant break with prior

practice.” Johnson, 529 U.S. at 724-25 (Scalia, J.,

6

dissenting); see also United States v. Haymond, 588

U.S. 634, 651 (2019) (plurality opinion) (describing

“[a]ll that changed” when Congress created supervised

release); Gozlon-Peretz v. United States, 498 U.S. 395,

407 (1991) (describing supervised release as “unique

method of post-confinement supervision invented by

the Congress for a series of sentencing reforms”).

Going forward, the defendant would serve the prison

term in full, followed by a separate term of supervised

release imposed by the judge at sentencing. See 18

U.S.C. §§ 3582 & 3583. Because the length of the

prison and supervision terms would now be fixed at

the time of imposition, this system was known as

“determinate” sentencing. Mistretta, 488 U.S. at 368.

The purpose of supervised release was to provide

former prisoners with post-release supervision while

also making their sentences more uniform and

predictable. See Tapia v. United States, 564 U.S. 319,

324-25 (2011) (SRA intended to reduce “disparities” in

sentences (quoting Mistretta, 488 U.S. at 366 (SRA

intended to reduce “uncertainty” about length of

sentence))). As Justice Alito explained, “the SRA

sought to retain the chief benefit of parole, i.e.,

providing a transition period of monitoring to ensure

that a prisoner who leaves prison has been sufficiently

reformed so that he is able to lead a law-abiding life,”

while “[a]t the same time … to promote truth in

sentencing and thus to eliminate a much-derided

feature of the old parole system.” Haymond, 588 U.S.

at 664 (Alito, J., dissenting).

Promoting predictability and uniformity, in turn,

would help to encourage rehabilitation. Although the

authors of the SRA rejected the notion that

7

“confinement itself—its inherent solitude and

routine—will lead to rehabilitation,” Tapia, 564 U.S.

at 332, they still had faith that post-release

supervision could provide former prisoners with

treatment and support that would facilitate their

“transition into the community.” S. Rep. No. 98-225,

at 124; see 18 U.S.C. §§ 3582(a) & 3583(c). By

replacing parole with supervised release, they sought

to enhance “rehabilitation efforts” by allowing officials

to “develop realistic work programs and goals within

a set term.” S. Rep. No. 98-225, at 57. They predicted

that “[p]risoners’ morale will probably improve when

the uncertainties about release dates are removed”

and that public respect for the law would likewise

grow when the sentence was not “subject to constant

adjustment.” Id. at 56.

Recent empirical research confirms that

consistency and

clarity in sentencing aid

rehabilitation.

Studies show that improving

perceptions of procedural fairness among supervisees,

particularly as to whether they are treated “like others

on supervision” and provided with “clear guidelines,”

leads to lower rates of recidivism. Brandy L. Blasko &

Faye S. Taxman, Are Supervision Practices

Procedurally Fair? Development and Predictive Utility

of a Procedural Justice Measure for Use in Community

Corrections Settings, 45 CRIM. JUST. & BEHAVIOR 402,

409-15 (2018). Because “offenders are more likely to

abide by conditions if they view them as just and

reasonable,” experienced probation officers have

recommended “clearly outlin[ing] to offenders the

terms of supervision, reasons for the conditions, and

potential penalties for infractions.”

Joseph A.

DaGrossa, Improving Legitimacy in Community-

8

Based Corrections, 78 FED. PROB. 22, 24-25 (2014); see

also Kevin A. Wright & Faith E. Gifford, Legal

Cynicism, Antisocial Attitudes, and Recidivism:

Implications for a Procedurally Just Community

Corrections, 12 VICTIMS & OFFENDERS 624, 633-34

(2017) (recommending “a fair, respectful, and

transparent approach regarding expectations of

offenders”). Promoting uniformity and certainty thus

also promotes rehabilitation, by giving individuals

more certain expectations and ensuring fairer

treatment.

II. Experience shows that the legal definition of

absconding from supervision is unclear and

unpredictable.

Given Congress’s purpose in creating supervised

release, it wisely omitted any provision for fugitive

tolling. Evidence from past and present shows that

attempts to define what it means for a defendant to

abscond from supervision have frequently divided the

lower courts, resulting in an unclear and

unpredictable legal standard.

The circuits that have adopted fugitive tolling of

supervised release often draw an analogy to the rule

that prisoners do not receive credit toward their

sentences for any period during which they have

escaped from prison. See United States v. CartagenaLopez, 979 F.3d 356, 360, 362 (5th Cir. 2020), vacated

as moot, 2020 WL 13837259 (5th Cir. Nov. 19, 2020)

(per curiam); Island, 916 F.3d at 254; Buchanan, 638

F.3d at 452-54. Just so, they argue, supervisees

should not receive credit toward their sentences

during time they abscond from supervision.

9

That analogy does not hold, however, because

absconding from supervision is much harder to define

than escaping from prison. It is obvious when a

prisoner escapes from prison—at the moment they

leave the state’s physical custody. See United States

v. Luck, 664 F.2d 311, 312 (D.C. Cir. 1981) (per

curiam). And it is equally clear when that escape

ends—once they return to custody. See Edwards v.

Va. State Dep’t of Corr., 462 F. Supp. 164, 165 (W.D.

Va. 1978).

Community supervision, by contrast, “is very

different from … confinement in a prison.” Morrissey

v. Brewer, 408 U.S. 471, 482 (1972). Unlike prisoners,

supervisees are not in the state’s physical custody.

They “can be gainfully employed and [are] free to be

with family and friends and to form the other enduring

attachments of normal life.” Id. As a result, it is far

less certain when a defendant absconds from

supervision than it is when they escape from prison.

For example, does a supervisee abscond whenever he

fails to attend a required meeting with his probation

officer? What if he misses a random drug test ordered

with minimal notice? Or submits late paperwork

notifying his officer of a new residence? If not, then

what level of violation is required to abscond, and

why? Must the supervisee intend to elude the officer?

Does fugitivity from supervision begin immediately, or

does the court have to issue a violation warrant first?

And when does such fugitivity end? Is it enough for

the defendant to have been detained by state or local

authorities, unbeknownst to the federal probation

office? None of these questions have clear or easy

answers.

10

The difficulty of making these determinations is

evident in the multiple splits among those circuit

courts that have adopted fugitive tolling of supervised

release. For example, the Ninth Circuit has held that

a defendant triggers fugitive tolling “merely by failing

to comply with the terms of his supervised release,”

even if they have not “fled” or “hidden from the

jurisdiction of the court.” Murguia-Oliveros, 421 F.3d

at 953-54. By contrast, the Fourth Circuit has

concluded that a “defendant does not become a fugitive

for tolling … simply because he violates a condition,”

but only when he engages in a “sustained and knowing

course of conduct, which ‘precludes the sentencing

court from exercising [the] supervision.’” United

States v. Thompson, 924 F.3d 122, 129 (4th Cir. 2019)

(quoting Buchanan, 638 F.3d at 458).

In another split, the Ninth Circuit has held that

“fugitive tolling begins with fugitive status and not

when the government is able to secure a warrant.”

United States v. Ignacio Juarez, 601 F.3d 885, 888 (9th

Cir. 2010) (per curiam). By contrast, other circuits

have suggested that fugitive tolling begins only once a

violation warrant issues. See Island, 916 F.3d at 256;

United States v. Gomez-Diaz, 415 F. App’x 890, 894

(10th Cir. 2011) (unpublished). Indeed, in the most

recent case joining the 5-2 split on the question

presented, the probation office itself disagreed with

the district judge’s view that fugitive tolling began

with the defendant’s failure to report, instead

recommending the defendant be discharged from

supervision where the original term had expired

11

before issuance of a warrant. See Swick, 137 F.4th at

339.2

Earlier attempts to define what it means to

abscond from supervision met with similar confusion.

For example, in 1976, Congress enacted a statute

expressly authorizing the Parole Commission to toll

parole whenever the parolee was “found to have

intentionally refused or failed to respond to any

reasonable request, order, summons, or warrant of the

Commission or any member or agent thereof.” Parole

Commission and Reorganization Act, Pub. L. No. 94233, § 2, 90 Stat. 219, 226 (1976), codified at 18 U.S.C.

§ 4210(c), repealed by Comprehensive Crime Control

Act, Pub. L. No. 98-473, tit. II, 98 Stat. 1976; see also

28 C.F.R. § 2.52(c)(1) (1982) (implementing statute).

Despite the statute’s seeming precision, courts still

reached conflicting conclusions about when a parolee

had absconded. Some held that a parolee’s sentence

should be tolled whenever they failed to report “as

required by the general conditions of parole.”

Leszynski v. U.S. Parole Comm’n, 721 F. Supp. 1108,

1110-11 (W.D. Mo. 1989).3 Others found that “simple

failure to report [to a probation officer] does not

2 Courts have also had to confront the question of when fugitive

tolling of supervised release ends—once the defendant is back in

state or federal custody, once the federal government has

constructive knowledge of his location, or once he is officially

under the control of federal authorities. See United States v.

Watson, 633 F.3d 929, 932 (9th Cir. 2011).

3 By contrast, parolees argued that the tolling provision “d[id]

not apply to violations of general conditions of parole and [wa]s

to be considered only if an individual refuses to obey an order

made directly to him.” Leszynski, 721 F. Supp. at 1110.

12

automatically suspend parole credit,” even if that

failure was a “violation of general parole terms.”

Papadakis v. Warden of Metro. Corr. Ctr., 822 F.2d

240, 243-44 (2d Cir. 1987) (emphasis added); see also

Toomey v. Young, 449 F. Supp. 336, 340 (D. Conn.

1978) (same, for parolee’s failure to file required

supervision reports), aff’d without opinion, 589 F.2d

123 (2d Cir. 1979) (per curiam).

Finally, the few courts that have adopted fugitive

tolling of probation have also struggled to define the

concept of fugitivity, resulting in “considerable

litigation.” United States v. Workman, 617 F.2d 48, 51

(4th Cir. 1980).4 Disagreements include whether

issuance of a warrant for an alleged violation

automatically tolls the period of supervision, compare

Nicholas v. United States, 527 F.2d 1160, 1161-62 (9th

Even the federal officials charged with managing the system

have expressed uncertainty about the rule. See David N. Adair,

Jr., Looking at the Law, 51 FED. PROB. 75, 76 (1987):

4

The December 1979 Federal Probation “Looking at the

Law” column … concluded that the probation period is

tolled from the act which initiates the revocation

proceeding (the issuance of the probation violation

warrant) until the revocation process is completed,

including any appeal. Although language in a number

of appellate decisions supports that determination, a

close examination of the decisions leads to the

conclusion that the mere issuance of an arrest warrant

may not be sufficient to toll the probation period.

There is, in fact, a line of cases in which the probation

period was held to be tolled, but either there was no

warrant, or the court did not deem the issuance of the

warrant to be determinative of whether or not the

period was tolled.

13

Cir. 1976) (yes), with United States v. Paden, 558 F.

Supp. 636, 640-41 (D.D.C. 1983) (no), and whether

violating a condition can toll a term of supervision

even in the absence of a warrant, compare United

States v. Green, 429 F. Supp. 1036, 1038 (W.D. Tex.

1977) (yes), with Paden, 558 F. Supp. at 640 n.2 (no).

States with the doctrine have experienced similar

problems. Compare In re Townsend, 554 N.E.2d 1336,

1337 (Ohio 1990) (per curiam) (failing to report

triggers fugitive tolling of probation), with Francois v.

Florida, 695 So.2d 695, 697 (Fla. 1997) (failing to

report does not trigger fugitive tolling of probation).

Because it is not clear how to define what it means to

abscond from supervision, the fugitive-tolling doctrine

implicates an uncertain and unpredictable legal

standard.5

III. Judicially adopting fugitive tolling would

undermine Congress’s purpose in creating

supervised release.

Given the deep and recurring disagreements

about what it means to abscond from supervision,

judicially adopting the fugitive tolling doctrine would

render the duration of supervised release subject to

change depending on the views of each defendant’s

supervising judge and probation officer. The result

would be “a complicated regime for the supervisee in

attempting to determine the applicable period of

tolling, and thus, when his term of supervised release

5 Indeed, the definition of abscondment is so unclear that it

arguably violates due process, being “so standardless that it

invites arbitrary enforcement.” Johnson v. United States, 576

U.S. 591, 595 (2015).

14

ends.”

Island, 916 F.3d at 259 (Rendell, J.,

dissenting). That is exactly what Congress sought to

avoid when it enacted the SRA.

Even if some authoritative definition of

absconding from supervision were to develop over

time, problems with disparity and uncertainty would

remain. For example, if issuance of a violation

warrant were required to toll supervised release, it

would simply generate more disparities as a function

of different judges’ and probation officers’ relative

dispatch in taking that action. Empirical research

reveals significant geographic and demographic

disparities in the administration of supervised

release, including rates of revocation and early

termination, and the same problems would be sure to

arise with fugitive tolling. See, e.g., Jacob Schuman,

Prosecutors in Robes, 77 STAN. L. REV. 629, 676-80

(2025) (inter-district disparities in revocation-perconviction rates ranging from 10.93% to 103.91%);

U.S. DEP’T OF JUST., RESOURCES AND DEMOGRAPHIC

DATA FOR INDIVIDUALS ON FEDERAL PROBATION OR

SUPERVISED RELEASE 15-18 (2023) (race disparities in

revocation rates ranging from 16.6% to 59.4%); Laura

M. Baber & James L. Johnson, Early Termination of

Supervision: No Compromise to Community Safety, 77

FED. PROB. 17, 17 (2013) (inter-district disparities in

early-termination rates ranging from 0% to 46%).

Conversely, if no violation warrant were

necessary to toll supervised release, then the situation

would become even more chaotic. Under that regime,

“every minor supervised release violation” could

“become a basis for fugitive tolling,” even just “missing

15

a meeting with a probation officer.” Thompson, 924

F.3d at 129. As Judge Rendell warned:

[T]he clock m[ight] stop and start again when,

for example, a supervisee fails to immediately

notify his supervisor of a change in address,

but does so a week later, fails to show up for

a drug test, but calls his supervisor two hours

after the missed appointment, and misses a

required Alcoholics Anonymous meeting, but

shows up to the meeting the following week.

Island, 916 F.3d at 259 (Rendell, J., dissenting). Even

if a more serious violation were required to toll

supervision, defendants still would have no idea

whether they were subject to tolling until the

government invoked it during a revocation proceeding,

making the end of their terms unpredictable and

unclear. The result would be “an onerous task for the

courts, and a complicated regime for the supervisee.”

Id.

To be sure, one of Congress’s goals in creating

supervised release was to provide former prisoners

with post-release monitoring and support. See Mont

v. United States, 587 U.S. 514, 523 (2019). But “no

legislation pursues its purposes at all costs,” and “the

very essence of legislative choice” is to balance “what

competing values will or will not be sacrificed to the

achievement of a particular objective.” Rodriguez v.

United States, 480 U.S. 522, 525-26 (1987) (per

curiam). It would “frustrate[] rather than effectuate[]

legislative intent simplistically to assume that

whatever furthers the statute’s primary objective

must be the law.” Id. (emphasis omitted).

16

Here, Congress has already provided a clean and

easy way for judges to sanction defendants who

abscond from supervised release by authorizing

delayed revocation hearings so long as a violator

warrant or summons issues before the scheduled end

of the term. 18 U.SS.C. § 3583(i). The availability of

this provision means that courts “d[o] not need to

resort to the fugitive tolling doctrine” in order to

punish absconders. United States v. Talley, 83 F.4th

1296, 1303 (11th Cir. 2023); see also United States v.

Hernández-Ferrer, 599 F.3d 63, 69 (1st Cir. 2010)

(same).

Contrary to the claims of the circuits that have

adopted fugitive tolling, the purpose of supervised

release was both to provide former prisoners with

post-release supervision and to promote predictability

and uniformity in federal sentencing. A judicially

created fugitive tolling doctrine that stops and starts

and stops the term of supervision, obscuring when the

sentence ends and vesting district courts and

probation officers with extraordinary discretion to

adjust the length of the term, would be unlikely to

further these goals. Rather, the defendant would

likely experience “as cruel and degrading the

command that he remain [on supervision] for some

uncertain period, while his keepers study him, grade

him in secret, and decide if and when he may be let

go.” FRANKEL, LAW WITHOUT ORDER, supra, at 96. The

empirical evidence suggests that by diminishing the

consistency and transparency of the system, fugitive

tolling would also hamper its ability to achieve

rehabilitation. See Blasko & Taxman, 45 CRIM. JUST.

& BEHAVIOR at 409-15. Judicially adopting a fugitive-

17

tolling doctrine would therefore undermine Congress’s

purpose in creating supervised release.

CONCLUSION

The Court should reject the judicially created

fugitive-tolling doctrine and reverse the judgment

below.

Respectfully submitted,

Paul Alessio Mezzina

Jacob Schuman

Zoe M. Beiner

Counsel of Record

KING & SPALDING LLP

TEMPLE UNIVERSITY

1700 Pennsylvania Ave. NW BEASLEY SCHOOL OF LAW

Washington, DC 20006

1719 North Broad Street

Philadelphia, PA 19122

Keith M. Donoghue

(215) 204-5840

Jessica Stengel

jacob.schuman@temple.edu

Amicus Committee

NATIONAL ASSOCIATION OF

FEDERAL DEFENDERS

Counsel for Amicus Curiae

August 15, 2025