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| Carrie Cohen |
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| Marjorie Berman |
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| Savanna Leak |
One promising alternative is court-involved supervised release programs, which involve support from the sentencing judge, prosecutors, defense counsel and probation officers during the supervised release period, successful completion of which can reduce the duration of supervised release and lead to better outcomes.
Supervised release has recently received greater attention as it is currently on the U.S. Supreme Court's docket. On Feb. 25, the Supreme Court heard oral arguments in Esteras v. United States.[1]
The issue before the court in the Esteras case is whether a court may consider factors related to punishment under Title 18 of the U.S. Code, Section 3553(a)(2)(A) — namely, "to reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense" — when revoking supervised release and imposing a prison sentence, even though the sentencing provision that governs supervised release, Title 18, Section 3583(e), does not reference those factors.[2]
Especially given the potential for harsher sentences following violations of supervised release if the Supreme Court holds that consideration of Section 3553(a)(2)(A) factors is proper, successful models of supervised release should be of particular interest to all parts of our criminal justice system.
One such model is a groundbreaking court-involved supervised release program created by the U.S. District Judge Richard M. Berman of the U.S. District Court for the Southern District of New York.
In June 2024, Judge Berman published a report examining data obtained from this program, which highlights the overwhelmingly positive effects of judicial involvement in post-incarceration supervision and reintegration, including lower rates of violations of supervised release and terms of imprisonment.[3] Judge Berman's report provides a blueprint for those interested in improving reintegration outcomes, and particularly for defense counsel who may seek to advocate at sentencing for such a program.
Unique Features of Judge Berman's Program
Since 2016, Judge Berman has been deeply involved in the supervision, and related data collection, of all individuals he sentenced to incarceration and supervised release (supervisees). A key part of the program is Judge Berman's proactive engagement with supervisees throughout their term of supervised release. Other key respects of court-involved supervision are as follows.
Regular Hearings
Active judicial participation in regular meetings with supervisees — referred to in the report as "hearings" because they are part of supervised release — is critical to the success of the program. The first hearing is, according to Judge Berman, of the utmost importance, and is preferably scheduled during the first 30 days following incarceration.
This initial hearing provides the opportunity to introduce the supervisee to the judge and supervision team, and to ensure that the supervisee has begun to fulfill any conditions of supervised release, including, for example, participation in mental health or drug programs. Importantly, the court may also set early goals and objectives regarding housing and employment.
According to the report, the number of hearings during the period of supervision is determined by the court and supervisee but is "likely to range from at least 6 to 10 hearings per supervisee per year." Each hearing provides an opportunity for the judge, supervisee and supervision team to engage in a meaningful dialogue and work together toward the "common goal of safe and successful reentry."
Judge Berman observed that the frequency of hearings depends on the challenges faced by the supervisee, including, for example, family, mental health and drug abuse issues, and physical health conditions. Holding regular hearings contrasts with the "norm" of conducting a hearing only when the supervisee has been arrested or has violated the terms of supervision.
Interestingly, Judge Berman found that virtual supervision is often "most efficient and effective," as supervisees can more easily attend to employment and family-related responsibilities without the necessity of traveling to court. Judge Berman observed that, even putting notable cost savings aside, virtual hearings seem to be "at least as genuine as in-person proceedings," and treatment providers — who play an essential role in supervision — often express a preference for virtual proceedings.
Holistic Approach
The active involvement of other members of the supervised release team is an important element of the program's success. The supervised release team includes not only the judge and supervisee, but also the probation officer, defense counsel, the assistant U.S. attorney who prosecuted the matter (or any reassigned assistant U.S. attorney), and treatment providers, including mental health and drug counselors. Judge Berman highlights reliance on talented probation officers and treatment providers, describing their participation as an "enormous asset."
Additionally, supervision sometimes requires collaboration with state courts, where, for example, a supervisee is charged with a state crime during supervised release. In such cases, it is necessary, as Judge Berman acknowledges, to "navigate the complexities" of obligations in both the state and federal systems.
As an example of state-federal cooperation, Judge Berman cites a case study in which a supervisee committed a state crime during his period of supervised release, and the state court agreed to vacate a felony plea and accept a misdemeanor plea upon the supervisee's successful completion of an inpatient treatment program.
Emphasis on Reintegration
Another key feature of Judge Berman's approach is emphasizing to the supervisee that "supervised release is not intended to be about punishment," and, instead, is designed to help the supervisee reintegrate into the community.
Additionally, according to Judge Berman, the supervisee is incentivized by the court's authority, after a minimum of one year of supervision, to shorten the length of supervision, "if and when the Court finds that early termination is warranted." Early termination is an "important incentive for supervisees" for successful reentry that also saves taxpayer money. In fact, the report estimated that early terminations among the study population saved the judiciary more than $300,000.
Relatedly, when a supervisee incurs a violation of supervised release, it is necessary to, according to the report, "seek to address the underlying cause" by, for example, modifying supervision conditions to include drug treatment or mental health counseling.
Inclusivity
Finally, every supervisee on Judge Berman's criminal docket participates in court-involved supervision. This is a "signature premise" of the program.
Promising, Data-Based Results
The results of Judge Berman's study are valuable as they highlight the effectiveness of active court involvement in supervised release. In Judge Berman's words, the data, along with his personal experiences with supervisees, "support the conclusion that court involved supervision significantly improves outcomes for supervisees reentering the community" and "enhances the safety of the community."
Compelling statistics from the study include, for example:
- 86.6% of the study population successfully completed supervision. This statistic includes 48.5% of supervisees who completed supervision upon expiration of the term of supervision, as well as 38.1% of supervisees who completed supervision through early termination. This figure of nearly 87% contrasts with, as studied by the Administrative Office of the U.S. Courts, the nationwide 64% of supervisees who completed supervision, including 48.2% who completed supervision upon expiration of the term of supervision, plus 15.8% who completed supervision through early termination.[4]
- Only 24.6% of the study population was charged with one or more violations of terms of supervision. Of the violations, 77.5% were Grade C violations (the least serious grade); 13.6% were Grade B violations; and 8.9% were Grade A violations (the most serious grade). Comparatively, the Administrative Office of the U.S. Courts has found that, nationwide, 60.4% of supervisees were charged with one or more violations, of which 54.9% were Grade C, 31.5% were Grade B, and 13.6% were Grade A.[5]
- Only 13.8% of the study population returned to state or federal prison. Judge Berman's report states: "Nationwide, by contrast, 31.6% of supervisees returned to prison, according to the U.S. Department of Justice, Bureau of Justice Statistics."[6] According to Judge Berman's report, return to prison is one of the most important and reliable metrics relating to recidivism.
- 82.2% of the study population participated in mental health and substance abuse treatment. Providing access to mental health counseling and/or drug treatment for supervisees is, as Judge Berman found, "one of the most critical objectives of court-involved supervision."
- 78.6% of the study population found employment. This result is higher than the nationwide employment rate, which is 75.8%, as well as the Southern District of New York employment rate at 73%, and the Eastern District of New York employment rate at 72.6%.[7] Employment for these purposes is defined as "any work at all for pay or profit," including "all part-time and temporary work, as well as regular full-time year-round employment."
In sum, an examination of the data, coupled with Judge Berman's experience with the supervisees, supports his unequivocal conclusion that the "proactive involvement of the sentencing judge in supervision is indispensable and appreciably improves community reentry following incarceration."
Case Study
Examining the Esteras case highlights how participation in a court-involved supervision program, such as Judge Berman's program, may help avoid additional periods of incarceration and promote successful reintegration.
In the Esteras case, the Supreme Court granted certiorari to address a circuit split on whether courts should be permitted to consider punishment-related Section 3553(a)(2)(A) factors such as just punishment in sentencing an individual for violating their terms of supervised release. In each of the three petitioners' cases, the court had considered on those factors.
However, Section 3583(e), which addresses when a court may extend or revoke supervised release and impose a prison sentence, does not include reference to Section 3553(a)(2)(A) factors. Instead, it references consideration of other Section 3553(a) factors that are more focused on reintegration and safety of the community — e.g., "protect[ing] the public from further crimes of the defendant" and "provid[ing] the defendant with needed educational or vocational training, medical care, or other correctional treatment."
A Supreme Court ruling that courts may consider punishment-related Section 3553(a) factors in sentencing an individual for violating the terms of their supervised release would signal an increased focus on punishment, as opposed to rehabilitation for violations of supervised release and the potential for harsher sentences following such violations. Accordingly, the Esteras case highlights the importance of avoiding violations of supervised release in the first place and successful reintegration of society.
Judge Berman's study demonstrates that participation in court-involved supervised release programs can achieve those goals, leading to lower rates of violations of supervised release, as well as less serious violations when they do occur. Accordingly, it may be advisable for defense counsel to consider requesting court-involved supervised programs for their clients.
The study also demonstrates that a holistic approach to supervised release, incorporating treatment providers and other professionals who can address challenges of reintegration in the process, is beneficial to supervisees.
One of the petitioners in Esteras v. U.S., Edgardo Esteras, for example, had multiple violations of supervised release, including domestic violence. The court found that Esteras had violated his supervised release and imposed a sentence of 24 months imprisonment and three years of supervised release with conditions including anger management classes.[8] A court-involved supervised release program could have connected Esteras with mental health counselors and anger management programs prior to, and hopefully thus prevented a violation, thereby potentially resulting in successful completion of supervised release and reintegration.
Key Takeaways
In sum, Judge Berman's report provides a guide for judges who may want to consider adopting similar court-involved supervision programs. The report may also provide defense counsel with ways to advocate for their clients at sentencing, including by suggesting court-involved supervised release, particularly where the client might have had substance abuse or mental health challenges that contributed to the crimes of conviction.
In addition, probation officers may want to consider the findings of the report and, in particular, how they can work with the court to help structure supervised release in way that might result in a more productive and successful term of supervised release.
Carrie Cohen is a partner, and global co-chair of the investigations and white collar defense practice group, and the state and local government enforcement team, at Morrison Foerster LLP. She previously served in the New York State Attorney General's Office as chief of the Public Integrity Bureau, and as an assistant attorney general in the Civil Rights Bureau,
Marjorie Berman is a member and founding partner at Krantz & Berman LLP.
Savanna Leak is an associate at Morrison Foerster.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Edgardo ESTERAS, Petitioner, v. UNITED STATES, Respondent., 2025 WL 621393 (U.S.), 3 (U.S.Oral.Arg., 2025); Esteras v. United States
, 145 S. Ct. 413, 414, 220 L. Ed. 2d 169 (2024).[2] Id.
[3] See Judge Richard M. Berman, Court Involved Supervised Release (Judges Need to Walk the Walk) (June 10, 2024), available at: https://nys-fjc.ca2.uscourts.gov/reports/2024/Court-Involved-Supervised-Release-Report-6-10-2024.pdf ("Judge Berman Report").
[4] See Judge Berman Report at 2, 16; see also AO Tables, Post-Conviction Supervision Cases Closed With and Without Revocation, by Type (available at https://www.uscourts.gov/data-table-numbers/e-7a).
[5] See AO, Just the Facts: Revocations for Failure to Comply with Supervision Conditions and Sentencing Outcomes (June 14, 2022).
[6] Bureau of Justice Statistics, Building Second Chances: Tools for Local Reentry Coalitions, at 14 (Apr. 1, 2022).
[7] This data was provided by the U.S. Probation Office. See Judge Berman Report at 23.
[8] Id.