Skip to main content
PRINT EDITION

Revocation and Retribution

By October 1, 2021July 22nd, 2022No Comments

Abstract: Revocation of community supervision is a defining feature of American criminal law. Nearly 4.5 million people in the United States are on parole, probation, or supervised release, and 1/3 eventually have their supervision revoked, sending 350,000 to prison each year. Academics, activists, and attorneys warn that “mass supervision” has become a powerful engine of mass incarceration.

This is the first Article to study theories of punishment in revocation of community
supervision, focusing on the federal system of supervised release. Federal courts apply a primarily retributive theory of revocation, aiming to sanction defendants for their “breach of trust.” However, the structure, statute, and purpose of supervised release all reflect a utilitarian design justified solely by deterrence and incapacitation, not retribution.

A utilitarian approach to revocation would not just be a theoretical change, but also would have a real-world impact by shortening prison terms, mitigating racial bias, and ending consecutive sentencing. While scholars view courts as the government branch most protective of criminal defendants, the judiciary has played a key role in expanding the state’s power to punish through retributive revocation. Judges may feel a personal stake in sanctioning disrespect of their authority, yet they should revoke supervised release only to deter and incapacitate.

Download the Full Article

Other Articles from WLR Print Edition

October 1, 2022 in PRINT EDITION

Protection for Indian Sacred Sites

PROTECTION FOR INDIAN SACRED SITES The Honorable William A. Fletcher U.S. Court of Appeals for the Ninth Circuit 34TH ANNUAL INDIAN LAW SYMPOSIUM RESTATEMENT OF THE LAW OF AMERICAN INDIANS…
Read More
October 1, 2022 in PRINT EDITION

Reflections on the Restatement of the Law of American Indians

34TH ANNUAL INDIAN LAW SYMPOSIUM RESTATEMENT OF THE LAW OF AMERICAN INDIANS APRIL 21, 2022 INTRODUCTION I’ve been asked to talk about and give some reflections about the Restatement project.…
Read More
October 1, 2022 in PRINT EDITION

Off-Reservation Treaty Hunting Rights, the Restatement, and the Stevens Treaties

Abstract: The underdevelopment of the law of off-reservation treaty hunting and gathering poses challenges for treatises like the groundbreaking Restatement of the Law of American Indians (“Restatement”). With particular attention…
Read More