Why Supervised Release Should Be Abolished An element of federal sentencing was raised to a rare level of public awareness, and

scrutiny, with the commutation of the prison term portion of the sentence given to Scooter Libby. Suddenly, this normally ignored (and usually misstated by the press) element of federal sentencing is causing the Court and government unease and confusion, in understanding how, if, and when it applies. Under current federal sentencing procedures, people are subject to, and usually given, 3 separate elements of punishment as part of their “sentence” for each count they are convicted of (violating “double jeopardy”), namely a prison sentence, a monetary fine, and something called supervised release. While Bush commuted Libby's prison term, and Libby then (allegedly) paid the imposed $250,000 fine, the remaining “supervised release” element of his sentence has become a quandary for the sentencing court, and U.S. Attorney, to assess, and agree on how to handle. “Supervised release” was created from the Sentencing Reform Act (SRA) of 1984, which created the federal Sentencing Guidelines, and ended the federal system of parole and created this new “thing” called supervised release. It was enacted in 1987, and then became part of federal sentences imposed by federal judges. But supervised release is patently unconstitutional; specifically it violates the Fifth Amendment's “double jeopardy” clause (nor shall any person be subject for the same offense to be twice put in jeopardy of life and limb) and “due process” clause (nor be deprived of life, liberty, or property without due process of law). Under the U.S. Constitution, all people (not just citizens) are protected from being subject (by the Government) to multiple punishments for the same offense, as established by the aforementioned “double jeopardy” clause. Before the SRA, a person sentenced to federal prison, after serving a specified length of the prison term, was eligible for parole/probation. The grant of parole was a “privilege”, allowing a prisoner to serve the remainder of their prison term outside of prison under the “supervision” of a parole officer. If the parole officer asserted to the sentencing judge the person violated conditions of parole, the judge could choose (or not) to order the person back to prison to serve out the remainder (or part) of the original prison sentence, or until eligible for parole again. However, upon completion of the full imposed prison term, whether served in prison and/or under probation, the person would then be released from custody, and be free, no longer subject to government control, supervision, or other oversight. Supervised release, as the name explicitly implies, creates an (unconstitutional) system which allows the government to continue to “supervise” (control) people AFTER they have completed their full prison sentences. It also allows for the reimprisonment of people, in many cases for periods longer than their original prison terms (and the government claims even indefinitely), for actions that aren't even crimes (drinking alcohol, associating with certain people, not working, etc). People who have short sentences (12-18 months) are routinely given terms of

supervised release twice their prison terms (3 years). This means people can be put back in prison for a longer time (without being convicted of another crime) for an alleged violation of “supervised release” than their original criminal conviction. To be clear, supervised release, ONLY takes affect, AFTER a person has served their full federal prison term AND then released from prison. Again, this is different from parole/probation (which is still the system used by the states), which only exposes people to a one time period of the loss of “liberty.” With the creation of supervised release, people are now exposed to a second term of restrictions on their “liberty” and placed in jeopardy of being imprisoned again, based on only one conviction of a crime, in clear violation of the “double jeopardy” clause. Also, the administration of supervised release violates the due process clause, because people can be re-imprisoned for non-criminal conduct other people can freely engage in. Under supervised release, people are routinely restricted from engaging in non-criminal activities, like drinking alcohol. If found to have violated this otherwise completely legal activity, they could be put back in prison to serve a new prison term. Even now, if the same person illegally consumed alcohol while serving the original federal prison term, the term could not be increased (though potentially not decreased via 'good time'). Additionally under the former federal parole system, a violation of parole could also not increase the prison term, it could just make the person serve more of the term inside of prison, than outside. Also, now some courts have interpreted that supervised release can be reimposed on people who were put in prison for violations of their original supervised release, creating a revolving door of continuous control by the courts. And more insidious, the government asserts it can indefinitely keep people in prison after their prisons terms have expired, if they don't first agree to adhere to terms of supervised release. But Libby's commutation has unintentionally exposed another legal flaw in the structure of “supervised release” (though most media still erroneously refer to it as parole or probation). Since supervised release ONLY takes affect AFTER a full prison term is (first) completed, does supervised release have any legal meaning, and can it be imposed or enforced, on a person who hasn't (first) completed a federal prison sentence? That is the question Libby's sentencing Judge Reggie Walton posed to the government. So, it looks like Scooter Libby is completely free now, outside the control of the Court and additional “supervision.” Of course, Libby is an aberration of the system, never an intended victim. It was not intended to generally apply to people of his race, gender, and class. Supervised release emanated from the racist/fascist mindset of a determined band of primarily southern congressmen, facing the social emergence and power of Blacks, Gays, and Women from the struggles of the 60's and 70's, taking years in the making, to use the criminalization apparatus of government to control people in a manner the Constitution explicitly denies. The Constitution gives the Government NO POWER to “supervise” people. Our Government is not supposed

to be the Masters of We The People, rather, it's supposed to be Our Servant. It can punish people for violating (valid) laws ONCE, but not concoct repetitive denials of people's “liberty.” And “liberty” is the most important freedom we have, for without it we can exercise no others. So supervised release has served its intended purpose to keep as many people as possible in prison, and under the control of government for as long as possible, most of whom are Black, Brown, and poor. At any one time, reports state anywhere from 20-35% of people are in federal prison because of violations of supervised release, overcrowding the prisons for non-criminal acts after release from prison (who were mostly there initially for non-violent offenses in the first place), people who otherwise would have been free prior to the SRA. And since 1980, when about 20,000 people were federally imprisoned, now there are about 120,000, and minimally 5-6 times more under supervised release outside of prison (most for a minimum of 3 years). But for the supporters of these documented oppressive sentencing policies, which have nothing to do with crime abatement, or the interests of justice, even these policies are not harsh enough. In fact they are moving to, in a de facto manner, create a societal structure as close to de jure slavery (and fascism) as they can get away with. And mostly, everyone else is sitting on the sidelines letting it happen, oblivious to the devious details of how it's being done. Supervised release should be abolished and replaced with an enlightened and humane system of parole/probation. Instead of trying to increase the (world's highest) number of people in prison and under supervision/control by the Government, we must work to make the protections of the Constitution real, and promote the idea that “liberty” is something that is an inalienable Right All People possess, and not to be abused and denied by a small group of people who currently control the apparatus of Government. Supervised release must end as an element of federal sentencing, and people who truly believe in Freedom and Justice should become involved in eliminating this unconstitutional element of federal sentencing.

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