The Trap Chronicles, Vol. 2: A Call to Reconsider “Risk” in Federal Supervised Release

Lahny Silva

Part I of this Article delivers a rather extensive historical overview of correctional supervision in the United States. This Part reviews significant federal legislation and jurisprudence as well as important theoretical and research developments that shaped our system of supervision today. Chronicling the history will demonstrate the way the theoretical and political pendulums shifted from redemptive and rehabilitative ideals to control and risk paradigms and again back to notions of “second chances” and rehabilitation. Although this Article focuses on federal supervised release, an examination of the origins of probation is necessary for a proper understanding of the congressional intent underlying supervised release. The same theories, models, and practices that influenced the evolution of probation in America also prompted the development of supervised release during the War on Drugs. Showing supervision’s historically unclear mandate and its haphazard establishment as a criminal justice intervention will highlight the chaotic landscape of supervision today.

Part II examines two models of supervision that inform federal supervision policy: The Risk-Need-Responsivity (“RNR”) model and the Social Learning Technique model (“SLT”). The RNR model, implemented during the War on Drugs, is the current federal approach to supervision. It heavily shaped wartime supervision practices and continues to influence current American criminal justice policy. With its focus on criminal risk and public safety, RNR stresses the need for controls with an emphasis on monitoring. In the last decade, these principles and practices have come under fire for their inconsistency with evidence-based best practices. On a more political level, the control rhetoric of the War on Drugs is inconsistent with current notions of “second chances” and redemption. The SLT model is also presented in this Part, for two reasons. First, SLT influenced the development of the RNR approach, and its tenets are still seen in current federal supervision policy and practices. Though to a lesser extent, SLT contemplates criminal risk and, like RNR, SLT concentrates on criminogenic needs. Second, more recent SLT work is producing promising developments and should be considered by those crafting contemporary supervision policy.

Part III offers an alternative framework in which to think about federal supervised release: desistance theory. Instead of policies emphasizing control and risk, desistance focuses on long-term reintegration plans and interventions. With its focus on individual agency and internal capacity building, this Article urges decision-makers to seriously consider this frame when re-imagining a new theoretical paradigm. This Part also provides a different model, the Good Lives Model (“GLM”), as a new way to approach federal supervision. Very different from the RNR and SLT models, GLM concentrates on developing individual capacities and creating prosocial relational and community supports to facilitate longer term individual change. Such an approach underlines principles consistent with best practices that produce better outcomes.

Part IV provides an objective catalogue of evidence-based practices for the purpose of highlighting contemporary data and its inconsistency with outcomes produced by the current wartime approach. Without promoting a particular model, this Part aims to provide decision-makers with a summary of the data on best practices in the context of supervision. These practices produce the best outcomes and should be considered regardless of the frame and model adopted.

The final Part concludes with a summary of the Article and recommendations for next steps. Recognizing that America is in the midst of a criminal justice overhaul, the Article concludes with a call for action on this topic.