The title of this post is the headline of this important recent commentary authored by Jacob Schuman over at The Crime Report. I recommend the full piece, and here are excerpts (with links from the original):
Several times a year, the United States Sentencing Commission (USSC) publishes research reports on the federal criminal justice system. These reports are part of the Commission’s statutory mandate and provide vital information and analysis to attorneys, scholars and the public. Over the past 10 years alone, the Supreme Court has cited Commission reports in more than half-a-dozen cases.
Unfortunately, the Commission’s July 2020 report on Federal Probation and Supervised Release Violations contains a major mistake that greatly overstates the dangerousness of federal probationers. To correct that mistake, I used the Commission’s data to re-run the analysis and found that probationers were more successful than previously reported.
The Commission claimed that approximately one-in-five defendants violated their supervision every year; yet the rate for federal probationers was just one-in-20. Similarly, the Commission found that nearly half of supervision violators engaged in new felony conduct, but the figure for probation violations was only one-third.
Acknowledging the success of federal probationers is especially important, given current efforts to reduce incarceration and stem COVID-19 transmission by allowing defendants to serve terms of supervision in the community. If judges are led to believe that probationers are more likely to commit violations, then they may be less willing to impose supervision as an alternative to imprisonment. The Commission’s error thus not only threatens to taint its own research, but also to mislead the courts to the detriment of criminal defendants and the public.
The Commission deserves credit for publishing the Violations report, which marks the “first time” the agency collected and analyzed data on revocation hearings. The report includes a publicly accessible database of 108,115 hearings in federal district courts between 2013-2017. In analyzing this database, the Commission combined defendants sentenced to probation with those sentenced to supervised release, describing them together as “offenders sentenced to supervision.” That was a significant blunder….
Because probation is limited to low-level defendants, whereas supervised release can be imposed in all cases, probationers are likely to have been convicted of less serious crimes and to have shorter criminal records than people on supervised release. And since criminal history is a strong predictor of recidivism, it stands to reason that this difference may also affect the violation rates of each group of offenders….
The Violations report is roughly accurate when it comes to violations of supervised release, which dominate the database. In 2019, there were 112,500 people on supervised release, compared to just 14,500 on probation. Similarly, the Commission found that 95 percent of violations were by people on supervised release, compared to just 5 percent on probation. The Commission failed to recognize, however, that because the data is overwhelmingly violations of supervised release, its analysis would reflect the behavior of those defendants, while obscuring the outcomes for federal probationers….
I draw three conclusions from these results. First, judges should not let the findings in the Violations report deter them from imposing probation instead of imprisonment on worthy candidates. While the report suggests a ~20 percent annual violation rate, of which approximately half were new felonies, the data for federal probationers is more promising. Federal probationers were 95 percent likely to comply with the terms of their supervision, and when they did misbehave, two-thirds of the time it was for a misdemeanor or technical violation. The report largely reflects the outcomes for supervised-release violators, and is not accurate as to federal probationers.
Second, Congress should consider expanding probation eligibility. While the low violation rates for federal probationers in part reflect the limited availability of the sentence, their success also suggests that probation might be expanded without serious risk to the public. Federal judges have proven their ability to select the strongest candidates for supervision over incarceration, and Congress should give them the discretion to do so in more cases. Revocation always remains a deterrent to violations – in fact, probationers received harsher sentences than reported by the Commission, perhaps to compensate for the leniency they were originally granted.
Finally, the Sentencing Commission should avoid repeating the same mistake in future research. Probation and supervised release are not just conceptually distinct sentences, but also as a result of their legal differences apply to different populations in ways that impact empirical analysis. If the Commission does not separate these populations when it studies federal sentencing data, then the much larger number of defendants on supervised release will overwhelm and conceal the outcomes for defendants on probation.
While I commend the Commission for casting light into this murky corner of the federal criminal justice system, it is important to correct the record on behalf of federal probationers and ensure their success does not remain a secret.