As quantum theory developed, Erwin Schrödinger began to explore the strange results the theory seemed to predict. Oversimplifying, quantum theory proposed that a single atom could be in two places at once but that observing the atom at one point would cause it to exist at only that point.1 The atom, prior to observation, both existed and did not exist at a particular point.2 In a thought experiment meant to highlight the absurdity of such a result, Schrödinger asked his colleagues to imagine two closed boxes, each of which holds a single atom that is exhibiting this strange behavior. Other than the atom, one box is empty; inside the other is a cat and a Geiger counter that, upon measuring the presence of an atom, would pull the cork from a bottle of cyanide, spilling the poison and killing the cat. Schrödinger suggested that quantum theory’s prediction meant that it was possible to create a scenario in which the cat was simultaneously dead and alive.3 Absurd as this seems, a nearly two-decade-old federal circuit split places federal defendants in an equal state of indeterminacy.

The passage of the Comprehensive Crime Control Act of 19844 created the indeterminacy that this Comment addresses. This omnibus bill marked a major shift in how the federal judiciary dealt with criminal defendants in nearly every phase of the criminal justice process. Most notably, the Act fundamentally altered both the federal bail system and federal sentencing. At bail hearings, federal judges were now empowered not only to impose conditions that would assure a criminal defendant’s appearance at trial, but also to consider the risk a defendant might pose to the community if released.5 The Act also emphasized the need for certainty in sentencing by replacing discretionary federal parole boards with judge-ordered supervised release terms—set periods of time following prison terms during which a defendant is allowed to live in the community but required to adhere to certain conditions.6 Although the aims of both the sentencing and bail reforms are relatively clear, the interaction of the two systems has created substantial uncertainty among the circuit courts. In particular, the federal circuits are divided as to whether pretrial detention can toll a supervised release term.

18 USC § 3624(e), which governs the tolling of supervised release terms, states that such terms “do[ ] not run [that is, are tolled] 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.”7 The question is whether, when a defendant is ultimately convicted, the credit he receives to his prison term for any time spent in pretrial detention creates the necessary “connection.” If it does, it tolls a supervised release term, delaying the expiration of the term for an amount of time equal to the time the defendant spends in pretrial custody.

Consider the following example. Defendant X is convicted by Judge A of possession of a controlled substance and sentenced to a term of imprisonment to be followed by a two-year supervised release term. Sixty days prior to the expiration of his supervised release term, he is arrested and charged with larceny. Unable to secure pretrial release, he is detained while awaiting trial for a total of seventy days. Ultimately, he is convicted of larceny and sentenced to a term of imprisonment. If his supervised release term was tolled while in pretrial detention, he will still need to serve sixty days of that term when he is released after serving his prison term for larceny. If it wasn’t tolled, it expired prior to his larceny conviction, and he is no longer under court supervision for his possession conviction.

Defining the exact contours of a supervised release term has important consequences for criminal defendants. Federal law requires that every supervised release term carry the condition that the defendant refrain from committing another crime.8 Violation of this or any other condition of supervised release may result in revocation of the term and the imposition, in its stead, of a prison term equal to “all or part of the term of supervised release authorized by statute . . . without credit for time previously served.9 If a defendant had been serving a two-year supervised release term, then revocation—no matter when during that term it occurs—could result in a two-year prison sentence. What’s more, the federal sentencing guidelines advise judges that prison terms imposed upon revocation “shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence of imprisonment being served resulted from the conduct that is the basis of the revocation of probation or supervised release.”10 The power to revoke lies with the court that imposed the sentence, but it remains with that court only so long as the supervised release term is running.11 While the term runs, the court also has the power to extend the length of the term and may modify any of its conditions.12 The most important limit on the scope of a court’s near-plenary power in this area, then, is temporal. Determining whether pretrial detention tolls supervised release thus determines when a defendant is released from the power of the sentencing court.13

Consider again Defendant X from above. As a reminder, sixty days before the expiration of his two-year supervised release term imposed by Judge A for possession, X was arrested and charged with larceny.14 At his bail hearing, Judge B places him in pretrial detention, in which he remains for seventy days. At his larceny trial, X is convicted and sentenced to another year in prison. Because in almost all jurisdictions there is a statutory requirement that prison sentences receive credit for any time spent in pretrial detention,15 his new prison sentence will be credited with the seventy days he spent in jail awaiting trial. After learning of this new conviction, Judge A initiates revocation proceedings on the theory that X violated the conditions of his supervised release. X objects and claims that his supervised release expired as scheduled. Judge A disagrees. He believes that when X received a credit to his sentence for his pretrial detention, that detention became “connected” with his conviction and thus tolled his supervised release term. If X is correct, Judge A has no jurisdiction, and thus no power to impose any additional punishment. If Judge A is correct, however, he may revoke X’s supervised release term and require that X serve up to two additional years in prison. Although this hypothetical seems as though it would arise only infrequently in the real world, a Bureau of Justice Statistics study of recidivism rates among the supervised release population suggests otherwise. That study found that within a year, nearly 20 percent of offenders under supervision were arrested for a new crime.16 Within five years, 43 percent of the sample population was arrested on suspicion of a new crime.17 Clearly, a substantial number of the inmates awaiting trial in jails around the country may simultaneously be serving supervised release terms.

Since 1999, six separate circuits have considered this question. While each circuit proclaims the statutory language provides an unambiguous answer, no consensus has developed. Four circuits believe, like Judge A above, that the “connection with a conviction” requisite to toll supervised release exists when a defendant receives a sentence credit for time spent in pretrial detention, thereby connecting the conviction and the period of pretrial detention.18 In these circuits, defendants who are serving supervised release terms while they sit in pretrial detention are in Schrödinger’s cell. As they await the disposition of their second trial, they cannot know whether their pretrial detention will ultimately be connected to a possible conviction, tolling supervised release. Until they receive judicial “observation” in the form of a verdict, they remain both under and not under court supervision. Two other circuits have held that pretrial detention is incapable of ever tolling supervised release. One circuit contends that the statute unambiguously requires tolling only for periods of detention that follow convictions.19 The other circuit reasons that the statute unambiguously precludes the kind of backward-looking analysis in which the majority position engages.20 Their reasoning, however, offers insufficient rebuttal to the majority position.

This Comment resolves the confusion by focusing on the purposes of the statutes in question. A proper resolution of this issue demands an understanding of not only the tolling provision, but also the other statutes with which it interacts. Part I of this Comment investigates the text and the legislative history of each of those statutes. Part II canvasses the cases that have confronted this question and analyzes the various positions of the circuits. Finally, Part III proposes a purpose-driven resolution to the interpretive problem the tolling provision has posed for courts. Contrary to every court to have considered the issue, this Comment accepts that the statutory text is ambiguous at best. Thorough analysis of the legislative history, combined with consideration of the quasi-constitutional ramifications of the majority position, indicates that pretrial detention should not toll supervised release.

  • 1. See Bruce Rosenblum and Fred Kuttner, Quantum Enigma: Physics Encounters Consciousness 97 (Oxford 2d ed 2011).
  • 2. For an experimental illustration of this “quantum enigma,” see id at 87–97.
  • 3. Id at 146–48.
  • 4. Pub L No 98-473, 98 Stat 1976.
  • 5. See Comprehensive Crime Control Act § 203, 98 Stat at 1976–80, 18 USC § 3142(c), (e)–(f).
  • 6. Comprehensive Crime Control Act § 212, 98 Stat at 1999–2000, 18 USC § 3583.
  • 7. 18 USC § 3624(e) (emphasis added).
  • 8. 18 USC § 3583(d).
  • 9. 18 USC § 3583(e)(3).
  • 10. USSG § 7B1.3(f). While the Sentencing Guidelines no longer carry the force of law after the 2005 case United States v Booker, 543 US 220, 245 (2005), it appears this is an oft-followed policy. See, for example, United States v Jaimes-Benitez, 644 Fed Appx 299, 300 (5th Cir 2016); United States v Smith, 571 Fed Appx 938, 939–40 (11th Cir 2014); United States v Day, 2012 WL 6019113, *4 & n 1 (WD Ark).
  • 11. See 18 USC § 3583(e)(3).
  • 12. 18 USC § 3583(e)(2).
  • 13. The statutes governing probation contain an identical tolling provision. See 18 USC § 3564(b). Because no court has analyzed this question as it relates to probation, this Comment focuses on supervised release. Nevertheless, the analysis is identical in both scenarios, and the dual purpose to which this statutory language is put only heightens the importance of finding a resolution.
  • 14. According to the terms of § 3624(e), it does not matter whether this crime is federal, state, or local.
  • 15. If the second crime is a federal crime, the sentence credit would be required by 18 USC § 3585(b) (“A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention . . . as a result of the offense for which the sentence was imposed.”). Almost every state has a similar required credit. See Arthur W. Campbell, Law of Sentencing § 9:28 at 444–45 & nn 2–3 (West 3d ed 2004).
  • 16. See Joshua A. Markman, et al, Recidivism of Offenders Placed on Federal Community Supervision in 2005: Patterns from 2005 to 2010 *3 (Bureau of Justice Statistics, June 2016), archived at
  • 17. See id.
  • 18. See Part II.C. See also United States v Goins, 516 F3d 416, 422–23 (6th Cir 2008); United States v Molina-Gazca, 571 F3d 470, 473–74 (5th Cir 2009); United States v Johnson, 581 F3d 1310, 1311–12 (11th 2009); United States v Ide, 624 F3d 666, 669–70 (4th Cir 2010).
  • 19. See Part II.B. See also United States v Morales-Alejo, 193 F3d 1102, 1105 (9th Cir 1999) (“A plain reading of [the tolling provision] suggests that there must be an imprisonment resulting from or otherwise triggered by a criminal conviction.”).
  • 20. See Part II.D. See also United States v Marsh, 829 F3d 705, 709 (DC Cir 2016) (reasoning that the statute’s use of the present-tense expression “is imprisoned in connection with a conviction” renders it inapplicable to pretrial detention preceding a conviction).