Supervised release is a relatively new form of postincarceration monitoring. After a defendant has completed a prison term, the sentencing court may provide for his release, contingent on the defendant’s continued adherence to a series of conditions over a set period of time.1 These conditions vary widely. They may include simple conditions, such as reporting requirements, or more complex conditions, such as a requirement that the defendant “make reasonable efforts to obtain a GED or high school diploma” while on release.2 Congress created supervised release to replace federal parole, intending release to serve “rehabilitative ends, distinct from those served by incarceration,”3 without perpetuating the sentencing disparities experienced under the parole system.4 In 2010, a US Sentencing Commission report noted that almost one million individuals had received sentences that included a term of supervised release.5

It is quite common for releasees to miss scheduled meetings, disobey curfews, or otherwise violate their release conditions.6 When this happens, sentencing judges may redress defendants’ violations with a variety of sanctions. Judges may even revoke release and sentence the offender to a prison sentence lasting for the duration of the original release term.7 In addition, some releasees have also been charged with the independent crime of escape.8 Because escape is a felony punishable by up to five years in prison,9 plus up to three years of supervised release,10 an independent conviction for escape may significantly lengthen a defendant’s time under criminal-justice supervision.

It is unclear, however, whether and in what circumstances violating release conditions constitutes an “escape” under the federal statute. Unlike certain state statutes, which narrowly proscribe escape from correctional institutions or from the custody of specific state officers,11 the federal escape statute, 18 USC § 751(a), broadly prohibits escape from “any custody under or by virtue of any process issued under the laws of the United States.”12 The escape statute does not define “custody,” and no Supreme Court case has provided direct guidance. Because supervised release may take many different forms, ranging from physical confinement to minimal reporting requirements, it is unclear when, if ever, defendants on release are in federal custody under § 751(a) and are thus capable of committing escape.

The federal courts of appeals have traced the contours of this issue in a series of cases involving defendants required to reside in halfway houses as a condition of supervised release. The defendants leave the facility and are charged with escape. Circuits disagree as to whether such halfway house stays are custodial under § 751(a). In deciding these cases, many circuits define custody using expansive legal rules that are not tethered to the presence of physical or institutional restraints. These broad constructions of custody may have serious implications for other location-based forms of supervised release—for example, conditions requiring defendants to wear GPS devices, to adhere to curfews, or to remain within a judicial district unless granted permission to leave by their supervising officer.13 One important concern is that this expansive understanding of escape will increase the length and punitiveness of prison sentences, turning supervised release from a tool to facilitate reentry into a powerful new driver of incarceration.

This Comment begins in Part I by discussing salient aspects of the Sentencing Reform Act of 198414 (SRA) and Congress’s replacement of parole with supervised release. Part II.A explores the circuit split over whether defendants who are ordered to reside in halfway houses pursuant to supervised release conditions are in custody for purposes of § 751(a); Part II.B discusses key weaknesses inherent in the circuits’ approaches. Finally, Part III draws on the history of the federal escape statute as well as the structure and function of supervised release to propose a rule that supervised release violations are categorically noncustodial under § 751(a).

  • 1. See 18 USC § 3624(e):

    The term of supervised release commences on the day the person is released from imprisonment. . . . A term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days.

    Additionally, “a probation officer [ ] shall, during the term imposed, supervise the person released to the degree warranted by the conditions specified by the sentencing court.” 18 USC § 3624(e).

  • 2. United States v McKissic, 428 F3d 719, 721, 724 (7th Cir 2005).
  • 3. United States v Johnson, 529 US 53, 59 (2000).
  • 4. See S Rep No 98-225, 98th Cong, 1st Sess 39–41 (1983), reprinted in 1984 USCCAN 3182, 3222–24 (“Comprehensive Crime Control Act Report”).
  • 5. Federal Offenders Sentenced to Supervised Release *3 (United States Sentencing Commission, July 2010), archived at
  • 6. Id at *63. A study conducted by the United States Sentencing Commission found that “technical violations accounted for the majority (51.6 percent) of all [supervised release] violations from 2005 to 2008.” The study defined technical violations as “includ[ing] lesser infractions” such as failing to report to a supervising officer and nonpayment of fines. Id at *67–68.
  • 7. See 18 USC § 3583(e)(3).
  • 8. See Federal Offenders at *21 n 108, 68 (cited in note 5).
  • 9. 18 USC §§ 751(a), 3559(a)(4).
  • 10. See 18 USC §§ 3559(a)(4), 3583(b)(2).
  • 11. See, for example, Mass Ann Laws ch 268, § 16 (criminalizing escapes from “any jail or correctional institution,” “any courthouse,” “the custody of any officer [ ] while being conveyed to or from said institution,” and other forms of custody). In other instances, the scope of “custody” for escape purposes is defined through a narrowing judicial construction. See, for example, White v Commonwealth, 591 SE2d 662, 667 (Va 2004) (“[I]t is clear that for purposes of prohibiting an escape under Code § 18.2–479, the General Assembly must have intended that the term ‘custody’ would include a degree of physical control or restraint under circumstances other than those also necessary to constitute an actual custodial arrest.”); Davis v Commonwealth, 608 SE2d 482, 484 (Va App 2005) (applying the definition articulated in White and concluding that a defendant released on bond was not in custody within the meaning of the escape statute).
  • 12. 18 USC § 751(a).
  • 13. The Sentencing Guidelines recommend that judges impose this last restriction as a standard condition of supervised release. United States Sentencing Commission, Guidelines Manual § 5D1.3(c)(1) (Nov 1, 2015) (“USSG”).
  • 14. Pub L No 98-473, 98 Stat 1987, codified as amended at 18 USC § 3551 et seq and 28 USC § 991 et seq.