As we previously mentioned in Wednesday’s post, we were working on a sample motion to submit to the court to try and get your extra good time. Again, this is mainly for people whose scheduled release date is between now and January. Simply fill in the blanks and put the name of your warden as the respondent. If you don’t know your warden’s name, just put Warden, Institution Name.
Anyway, your family can download and print off a copy of a sample form motion and mail it to you. They can download it at:
Most defendants, upon realizing exactly what release is, have grumbled about the unfairness of being forced to do two (or, unfortunately, very often, more) sentences. “It’s not bad enough I get a harsh enough prison term. I have to do probation, too?” Until the past few years, release has gotten little attention from courts-mostly due to the inattention of lawyers eager to move on to another case in their never ending docket. While few will want to actually challenge its existence (it won’t help any modification request), it is still instructive to view its legal basis.
Congress replaced parole with supervised release in 1984, as part of a package of sentencing reform. Though it was originally supposed to be helpful and discretionary, (few defendants were actually supposed to get it), it was poorly defined, and Congress largely left it to the courts in figuring out how it would work. Then, to make matters worse, Congress amended the statute respectfully with conflicting goals and no coherent vision in how it would work together.
The problem with treating release as parole-other than the supposedly different goals of punishment vs. rehabilitation-is that the legal basis of parole invalidates release. Parole is lenience or a form of clemency. The individual has not served his full term-there is no early release to justify conditions. It certainly cannot justify the imposition of another term of release after violation, once the individual has served two prison sentences on the same offense.
Once the fundamental nature of release is confronted and its complete difference from parole, it is obvious that it is illegal. If it is not lenience, and it certainly is not helpful, then it is punishment. And the Fifth Amendment to the Constitution forbids more than one punishment for any offense. Since that is exactly what release does, it is unconstitutional.
For over three decades, Congress has flaunted this prohibition, and has stripped millions of prisoners of basic human necessities and Constitutionally protected liberty for terms of years, or even decades, after their lawful release. Sometimes this even occurs for life.
While courts have been reluctant to confront this, and their complicity in the matter, glimmers of sanity are starting to make their way through the otherwise impenetrable fog of the whole mess. The Second and Seventh Circuits have in the past few years, put substantive limits on what courts may do. The Supreme Court is hearing a case right now regarding limits on revocation (Haymond v United States, 17-1672).
The progress is slow, and halting. But just like this illegal facade was not erected overnight, so, too, it won’t be torn down overnight either. There is still reason to take heart.