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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.

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