Indeterminate Sentencing Returns: The Invention of Supervised Release, 88 New York University Law Review 958 (2013)
The determinacy revolution in federal sentencing, which culminated in the passage
of the Sentencing Reform Act of 1984, has since been upended by a little-noticed
phenomenon: the evolution of federal supervised release. A “determinate” sentencing
regime requires that prison terms be of fixed and absolute duration at the
time of sentencing. Because of the manner in which supervised release now operates,
however, contemporary federal prison terms are neither fixed nor absolute.
Instead, the court has discretion to adjust the length of a prison term after sentencing
based on its evaluation of the post-judgment progress of the offender. This
power to amend the duration of the penalty is the classic marker of the “indeterminate”
In this Article, I show how federal supervised release has dismantled the ambitions
of the determinacy movement and made federal prison terms structurally indeterminate
in length. I conclude that the widespread use of supervised release has created
a muddled and unprincipled form of indeterminate sentencing: one that flouts the
insights and vision of the nineteenth-century indeterminacy movement as well as the
twentieth-century determinacy movement. Having dislocated once-celebrated theories
of sentencing, federal supervised release now controls the lives of more than
100,000 people without offering any alternative theoretical basis for doing so. This
Article draws on the lessons of a 200-year history to expose the current nature of
supervised release and to envision a more coherent role for its future.
Date of Authorship for this Version
Doherty, Fiona, "Indeterminate Sentencing Returns: The Invention of Supervised Release" (2013). Faculty Scholarship Series. Paper 4805.