It’s been 40 years since supervised release was first introduced into the federal court system by the 1984 Sentencing Reform Act. Supervised release, which replaced federal parole and probation, is a secondary sentence judges can impose that only comes into effect once people have already served their time in prison. The legality of the widespread use of supervised release, not to mention its overall constitutionality, is highly controversial. Jabari Zakiya joins Rattling the Bars to make the case for the abolition of supervised release.
Studio Production: David Hebden, Cameron Granadino
Post-Production: Cameron Granadino, Alina Nehlich
Transcript
The following is a rushed transcript and may contain errors. A proofread version will be made available as soon as possible.
Mansa Musa:
Jabari Zakiya is an expert on supervised release, a system that is being used by the prison industrial complex to keep people on the plantation. Is it unimaginable to think that a person receives a sentence, serves it out, only to be released on supervised release and serve more time than his or her original sentence? Jabari Zakiya brings this truth to reality. All right, as we unpack this, we need to first establish, not so much as the problem with supervised release, but what is supervised release?
Jabari Zakiya:
Well, supervised release was created in 1984 with the Sentencing Reform Act of 1994 in the middle of the Reagan year. And, two things came out of that act. The first thing was the creation of the Federal Sentencing Commission, and the other major thing was the abolishment of the use of parole and probation in the federal system, they replaced that with this thing called supervised release. So, supervised release is an extra sentence that gets put onto people’s prisons term and it only becomes effective after you have fully served your prison term. And then, when you get out, then they say you’re on this thing they call supervised release.
Mansa Musa:
All right, and supervised release came through the Reagan administration. And are we talking about specifically DC code offenders or are we talking about nationwide, anybody that’s under federal jurisdiction?
Jabari Zakiya:
Any federal conviction. Any federal sentence from a federal conviction. Since November 1st, 1997, that’s when supervised release became effective. That’s when federal courts start to oppose the sentences, that included supervised release. So yes, DC, anywhere across the country.
Mansa Musa:
Okay. So now, for the benefit of our audience, because we just don’t want to assume that everybody got an understanding of the sentencing mechanism in the prison industrial complex. So, walk our audience through the sentencing mechanism. So, once a person is convicted, walk them through it and to the whole process, you will use yourself as an example.
Jabari Zakiya:
Okay. So, currently, for federal convictions, once you get convicted of a federal crime, you have a sentencing hearing in front of a federal judge. At the sentencing hearing, the judge imposes the sentence, which concludes a prison term, could include a prison term, it could include other provisions. But usually, in the case that we’re talking about includes a prison term of so many years or months. And then, a term of supervised release that follows the prison term.
Now, supervised release is not mandatory for the widest sets of categories of crimes. Statutorily, supervised release only has to be imposed by statute on a certain category of crimes, such as terrorism, child molestation, etc. All other categories of crimes or all other categories of people that get convicted of crimes, it’s at the discretion of the court whether to impose or not a term of supervised release, but by practice they dole out supervised police like jelly beans.
Mansa Musa:
Okay.
Jabari Zakiya:
But most people don’t know that. Most criminal defense attorneys don’t act like they know that. And most public defenders don’t act like they know that, because they don’t challenge during the sentencing hearing, “Why are you giving this person a term of supervised release? What is the legal basis of it?” Why are you giving them a certain time period? What is the legal basis of why are you giving somebody a three-year term of supervised release?” Like in my case, I had a 16-months prison sentence and a 3-year term of supervised release. Well, why is the term of supervised release almost twice as long as the prison sentence? I didn’t know anything about that at the time. My public defender didn’t do anything to contest it. So, the system keeps rolling along by practice through inertia. Everybody just lets it go and very few people challenge it. The good thing is, people are starting to challenge.
Mansa Musa:
Okay, so let’s talk about this here. All right? I get convicted of a crime.
Jabari Zakiya:
Mm-hmm.
Mansa Musa:
I got 16. The maximum penalty for the crime is 24 months. That’s the maximum time I can get for the crime. I can only get 24 months for the crime. That’s it. So you can give me 24 months, you can give me one year sentence, and then you give me one year probation. But it can’t go beyond two years in my sentence. So now, under this guideline of supervised release, is that term of supervised release a part of the penalty? Would my sentence be 24 months plus three years supervised release? When I look at the statute, what’s the sentence for this crime I committed, would it say, “And supervised release”?
Jabari Zakiya:
And this is one of the greatest problems, the prison sentence is the punishment.
Mansa Musa:
Right.
Jabari Zakiya:
Okay, when you talked about the 24 months, that’s your prison sentence. Supervised release is this unconstitutional second sentence, because supervised release allows the government to put you back in prison without the benefit of having to convict you of any crimes. In fact, all the people who go back for revocations of condition supervised lease, those are for non-criminal activity. Those are for what is called administrative technical violations, such as dirty urines, such as being in the presence of other felons like your cousin, or your mother, or your brother
Mansa Musa:
Or nobody you might not even know committed a felony.
Jabari Zakiya:
Or for not getting a job within a certain period. Or for merely not calling back your probation officer or meeting with them at a certain time. These are technical violations. They are totally unconstitutional, because essentially, there’s no place in the constitution that allows the government to supervise people after they have completed their prison term. The prison term is their punishment under the fifth amendment.
Mansa Musa:
Okay, let’s go now. Now, we got to understand supervised release. Recently, as of May the 6th, the ACLU filed a suit against the government, claiming supervised release and parole status said people with disabilities are forfeited. And in this suit that they filed, the ACLU, the Public Defense Department, and a few other legal organizations filed, they were basically saying, under the supervised release, it doesn’t take into account a person’s disability or mental state, but more importantly, in the suit… And we look at the body of the suit, they’re suing parole and they suing the Office of Supervision, which is known as CSOSA, which is the mechanism or the institution that deal with supervision.
Jabari Zakiya:
In DC.
Mansa Musa:
In DC.
Jabari Zakiya:
Right. District of Columbia. Right.
Mansa Musa:
All right? But, in the suit it talks about the way they go about assessing once a person is put on supervised release, the way these entities that’s responsible for the supervision, the way they make a determination on how you’re going to be supervised, they use a metric.
Jabari Zakiya:
Right.
Mansa Musa:
And, in the metric, the metric in turn say, “Okay, this person should have drug tests. This person should meet twice a week with their PO. This person should have a job in 30 days. This person should have a place to stay or be in an identifiable shelter. Because all these things that I’m putting in this mechanism, if you don’t do these things, those are the things that’s going to lead to a technical violation.”
Jabari Zakiya:
Right.
Mansa Musa:
Right? How did that play out? Now, in this lawsuit, they’re saying that this mechanism doesn’t take into account circumstances. It’s arbitrary, capricious, and too general. And what they’re saying specifically as it relate to people with disabilities and mental health, is that the case across the board?
Jabari Zakiya:
Right. What they’re dealing with are obvious egregious collateral damage from the whole structure of supervised release.
Mansa Musa:
Come on.
Jabari Zakiya:
Right. So, when they abolished parole and probation in the federal system, they claim in the creation of supervised release that the purpose of supervised police was for rehabilitation. And, it was supposed to give people a way to transition back into coming out of prison into society. And that this was supposed to help people, which is the exact opposite of what its actuality is. The practice of it is, it’s just another means to control and punish people after they have already served their full prison sentence. So what the ACLU is finally doing, because in 2019 when we created the Coalition in Supervised Release, we actually met with the DC probation office… Excuse me, Public Defender’s Office and the Federal Public Defender’s Office who deals with the federal cases on the side. The DC deals with the DC cases.
So, what they’re doing is attacking the collateral mechanism. They’re not attacking the legality of the system. All right? What I’m saying is… An analogy would be, say you could either say slavery is bad and unconstitutional, or you could say certain conditions under slavery are bad. Or you shouldn’t be able to just rape people arbitrarily. You shouldn’t be able to cut people’s feet off. You shouldn’t be able to beat people. But, slavery is all right.
Mansa Musa:
Right, right, right.
Jabari Zakiya:
But just don’t make it so onerous that you make it so ugly and heinous that these things occur. That’s the approach they’re taking when anybody who has their rights restricted is unconstitutional, because you’ve already served your prison sentence. So, they’ve created this facade and the courts have gone along with it and most organizations go along because you have to attack the full fundamental principle of the idea that once you have served the prison system, that is your punishment. There is no other means for the government to have any supervisory or administrative authority over you, because you have served your prison sentence, you are a free person, you can do what you want. The government has no authority. The constitution doesn’t give the government any authority to supervise anybody. It only says they can punish people for a crime where they have been duly convicted.
Mansa Musa:
And okay, let’s examine the whole application of supervised release. All right, so you say it’s only certain crimes can be given a prison-
Jabari Zakiya:
Are mandated.
Mansa Musa:
… Yes, are mandated. And that’s in the law.
Jabari Zakiya:
That’s in law.
Mansa Musa:
But, outside that, it’s discretionary.
Jabari Zakiya:
It’s totally discretionary.
Mansa Musa:
All right. And, as it’s mandated, they passed a law to say it’s mandated?
Jabari Zakiya:
It’s by statute.
Mansa Musa:
Okay.
Jabari Zakiya:
The statute 18 U.S.C. 3583 lists the categories of offenses where the courts are mandated to impose a term of supervised release. Every other thing is discretionary.
Mansa Musa:
All right. So now, in terms of where the disconnect comes in, it comes in that when it’s being done arbitrary and capricious. Or, is it a disconnect in the sense that it should never be in existence?
Jabari Zakiya:
It should never be in existence.
Mansa Musa:
Why?
Jabari Zakiya:
Because the government has no constitutional authority to supervise. You’re an American citizen. You’re supposed to be American citizen. So, when you are convicted of a crime, the prison sentence is the one punishment under the fifth amendment that they can impose upon you. Period. You do your 5 years, 10 years, or whatever that prescribed sentence is for that particular offense, that’s it. You come out, “Okay, I’ve done my time. I’ve served my sentence. I’m now a full and functional citizen.” Presuming that you were a full and functional citizen in the beginning. But, that’s it. So when you had probation and parole, what happens is you get a 10-year sentence. You come up for parole after 30% of your sentence, or let’s just say, three years. Because there’s nothing in the constitution that says, “You have to go to prison.” It says, “Punishment.”
So, under the former system, before they created supervised release, you had a 10-year sentence. You come up for parole after three years, the government can decide how to punish you. They can say, “Well, we’ll keep you in prison.” Or, “We can allow you to serve the remaining 7 years of that 10-year sentence after you come up for parole in 3 years. You can serve that outside of prison. But you’re still under administrative control of the court, which is your parole officer. So if you violate whatever conditions that were part of your parole supervision administrative plan, then you can go back.” But you only have one sentence. And after that 10 years over, that’s it.
Mansa Musa:
So they send you back, say, you got 60 months, 5 years, you do 40 months, they let you go out on parole.
Jabari Zakiya:
Mm-hmm.
Mansa Musa:
All right. And you got two years left on your sentence, you violate, they send you back, you got a year left on your 60 months. At the end of the year-
Jabari Zakiya:
That’s it.
Mansa Musa:
… That’s it. Okay. But then, under supervised release-
Jabari Zakiya:
You served your whole sentence.
Mansa Musa:
… They gave you.
Jabari Zakiya:
They gave you five years, you served your whole sentence. Then, the day you walk out of prison, your term of supervised release starts.
Mansa Musa:
Oh, okay, I see the problem then. So now, you really… Then it gave you an extra sentence.
Jabari Zakiya:
They gave you an extra sentence. But this time, they can put you back in prison for a non-criminal offense.
Mansa Musa:
Right. Until your term of supervised release… Or they could keep nitpicking you, like in the case of the people they sued.
Jabari Zakiya:
Right.
Mansa Musa:
They send them back for a year, they’re going to let them go, they send them back for another year. They can keep doing that back and forth. But under the traditional system, they can send you back and say mandatory out, say just bring it to the door.
Jabari Zakiya:
And so, many people under the conditions of parole and probation, you can max out in prison if you choose.
Mansa Musa:
Right.
Jabari Zakiya:
And many people did, or chose to do that, especially if you have a shortened sentence, because they didn’t want to go through the hassle of being ping-ponged from halfway houses back, and da-da-da, and try to find a job and stuff, and then getting caught up. So many people would say, “No, I’m going to just max out.” So then, when they left, it’s like, “Goodbye. See you later. You don’t have no control over me at all.”
Mansa Musa:
Right.
Jabari Zakiya:
Under this system, you do your max time, they can ping-pong you back for, like I say, all these little trivial so-called administrative violations that are not crimes. And the whole point of this system, those white males in the middle of the Reagan administration with the complicity of the Democrats put this in place with that explicit purpose. Because, Reagan, he became president in 1981. We had gone through the Vietnam War. We had gone through the Vietnam protests, the student riots, the Civil Rights Commission. At the beginning of the Reagan administration, the federal prison population was somewhere around 20,000 people. 20,000 people total across the nation in the federal prison.
Mansa Musa:
Mm-hmm.
Jabari Zakiya:
After he left, that population rose from 20,000 up between 80 and a 100,000. So, one of the whole purposes of his administration was those rabid confederate white racists said, “You know what? We can’t allow these people to go out and protest these policies, to confront the government. And so, we’re going to need to put more of them in prison.” And of course, they did the mandatory minimums, they did the crack cocaine deference. All that was designed to put particularly black people, black males in prison, and to keep a revolving door to keep them in prison.
Mansa Musa:
Why you think so… Why? Okay. If supervised release is so draconian, and it applies nationwide, why you think you don’t have more kickback nationwide about it? Because according to your argument, one, it’s unconstitutional, it’s not mandated by lawyers discretionary under certain circumstances. But yet, it’s being practiced all across the board. Why you think we don’t have no more opposition to it in terms of trying to get it reversed?
Jabari Zakiya:
That’s a very good question. Part of it is just inertia. People just go along with the system. But, the arguments I’ve just told you, they are being made and they have always been made from day one. Unfortunately, the groups that should have been the natural people to argue these things from the beginning, like the NAACP, the Urban League, ACLU, they were asleep at the wheel. Even again, these laws were passed with the complicity of Democrats too.
Mansa Musa:
Right.
Jabari Zakiya:
It wasn’t just Republicans, and it wasn’t just Reagan. They existed under Clinton. Clinton made it worse.
Mansa Musa:
Mm-hmm.
Jabari Zakiya:
Obama didn’t do anything about it, right? So, it’s not just a one-party thing. It’s a total acceptance by both the Republican and Democratic Party that we need to put more particularly black men in prison and keep them there for as long as possible. And the courts have basically rubber-stamped it, because they haven’t really done the serious analysis that is now being forced upon them by the ACLU that should have been done in 1987 when these sentences started to be put down.
Mansa Musa:
This is what they say in the quote, ACLU, “There are just absolutely no policies or procedures to assess their accommodation needs or to provide the accommodations that people need just to have an equal shot at completing supervision and staying in their community.” Now here, you preference this with, they’re talking about people with disabilities.
Jabari Zakiya:
Right.
Mansa Musa:
But, could you apply that across the board, there is no provisions being provided for people in general?
Jabari Zakiya:
The government has no authority to supervise anybody.
Mansa Musa:
Right.
Jabari Zakiya:
If they wanted to provide a system for harmonious and stress-free reintegration back into the community, they could do that. They could absolutely do that. But it wouldn’t have nothing to do with punishing people and sending them back to prison. It would just be a transitional period that has nothing to do with re-incarceration. They could do that, but they don’t want to do that. They have to create a means to put people back in prison. They’d rather put people back in prison, than actually help people transition. Because then, that whole mindset, that group of these rabid, right-wing racist white men don’t want black people, don’t want brown people being able to walk the streets, and be full citizens, and compete ideologically, financially, and every other way with their whole whiteness dominating. That’s this whole thing with these white people now. They are scared out of their wits that they are a declining minority in this brownification of the United States. And they want full and complete control of everything. And they know they don’t have the numbers. Their numbers are dwindling.
And so, these mechanisms are being put up. That’s why all across the country, in Florida and all these people, they want to say, “You can’t read these books.” They want to call anything black people do, black extreme organizations, which has no constitutional meaning whatsoever, et cetera, et cetera. This is an ongoing war. Most black people don’t understand that this is a war. This is an overt war that these white males are continuing, because they, never in their mind, thought they lost the civil war. Right.
Mansa Musa:
All right. So, as we look at the supervised release, right? Going forward… So, what were some of the work that y’all did and how far did y’all get in terms of trying to get at this mandate?
Jabari Zakiya:
Okay. One thing that most people don’t know and your attorneys won’t tell you, the judge won’t tell you, is that, there is a part of the statute on the supervised lease, after a year on supervised lease, you can petition your sentencing court, your sentencing judge to terminate the remaining part of your supervised release. So, one of the things we did, I used that provision and I helped get one person’s three-year term of supervised release terminated after 18 months. This is in the statute. This is a right that everybody on supervised release has. You can just file a motion after a year and say, “Please terminate the rest of my term of supervised release.” Usually, the probation officer won’t tell you, your offense attorney won’t. This should be just structurally streamlined. It’s like, “Okay, you’re…” Like with the probation part. After a year, you should go back and automatically go back in front of the judge and say, “I want to terminate the rest of the…”
Mansa Musa:
Right.
Jabari Zakiya:
But they don’t do it that way. They don’t even tell you that you have a statutory right to request this.
Mansa Musa:
And if people wanted to try to get it reversed or try to get in the advocacy space of getting it removed altogether, what is your recommendation?
Jabari Zakiya:
Well-
Mansa Musa:
If there was something that was feasible.
Jabari Zakiya:
… Well, there’s two ways attack this systematically. You can attack it through the courts, which is what the ACLU. But ultimately, you have to attack it through legislation, because the appellate courts and the Supreme Court have shown no inkling of abolishing the whole system. Even though, as you noted, you can cite all these collateral unconstitutional consequences of its mechanical imposition. There’s no way to impose the system constitutionally.
Mansa Musa:
Right.
Jabari Zakiya:
There’s no way to do it. So, they don’t even try.
Mansa Musa:
Right, right.
Jabari Zakiya:
So it’s like slavery. Either you abolish it or you keep it going.
Mansa Musa:
Mm-hmm.
Jabari Zakiya:
Right? So, you got more cases from the Supreme Court upholding slavery, than you do abolishing it, right?
Mansa Musa:
Right.
Jabari Zakiya:
At some point, you just have to build enough momentum where enough people finally say, “It’s wrong.”
Mansa Musa:
Right. All right, so now, as we get ready to close, let’s look at the impact this has on families.
Jabari Zakiya:
Right. Well, like you say, a common condition of supervised release is you can’t interact with other felons. So if everybody in your family was convicted on a case… So if you go to a summer barbecue and your brother’s there or your cousin in there and they were convicted on the same count or whatever, you could be in technically a violation of your supervised release.
Mansa Musa:
And in terms of from your own personal experience and your knowledge, how often do they revalidate people, like just nonsensical stuff?
Jabari Zakiya:
Actually, they have studies by the Sentencing Commission that actually documents this. But what we know absolutely that in the current federal prison population, somewhere around 30 to 35% of the people in federal prison are there for revocations of supervised lease, not for convictions of new crimes.
Mansa Musa:
And so, that means 30% of the population that they send back. And, from your knowledge, is this a continuum? Do they keep this number fluid? I’m going to make sure I got this ability to keep this population back to a number by 30%. In addition to people being on parole, I know they subject to violate, I got probation, they subject… But now, I got a sure thing in supervised release because I can knit-pick, from your knowledge, is this something that you see as a common practice?
Jabari Zakiya:
It’s a common practice. You can get the numbers from the actual Bureau of Prisons, because they list that. The sentencing commission comes out with their yearly reports. So yes, this number is known. That’s why I can say it’s between 30 and 35%. And, they can tell you what are the types of offenses people are getting revoked from, right? So, what I’m saying is that everybody who goes to prison has a number. Everybody who goes to prison has a term of imprisonment.
Mansa Musa:
Mm-hmm.
Jabari Zakiya:
So, all that information is empirical. It’s not random.
Mansa Musa:
Right.
Jabari Zakiya:
You could go by every person they put and you can compile, “Why you’re here? How long you here?” Etc. Etc. So, what they don’t want to do though is show you that the whole purpose of the system is not rehabilitation. Because, see here’s the constitutional argument. If they claim a prison sentence is your punishment, then how can putting you back in prison for revocation of a technical violation be rehabilitative when it’s the same actual remedy for two supposedly different things, right?
Mansa Musa:
Mm-hmm.
Jabari Zakiya:
So how can prison be a punishment under one condition and a rehabilitation under another condition? It doesn’t make any sense.
Mansa Musa:
No, it doesn’t.
Jabari Zakiya:
And that’s the whole thing. People have to be engaged in extreme acts of cognitive dissonance to justify how doing the same thing… Putting people in prison has two totally separate and opposite purposes.
Mansa Musa:
All right. As we close out, what do you want people to know and what are you advising them in terms of trying to get this?
Jabari Zakiya:
Okay, here’s functioning what people need to know. People who are about to go have a federal trial, and 85% of the people are more in the federal system plea bargain, they don’t even go to trial. So you just copped to a plea. Again, first you need to know that supervised release is discretionary. And you need to first know, “Is the offense that I am convicted of or pleading to, does that have a mandatory term of supervised release?”
Mansa Musa:
Right.
Jabari Zakiya:
If the answer is no, then when you go to sentencing, you need to make your attorney contest the requirement or any discretion to impose a term of supervised release, because they’re supposed to explain why under their discretion they think you deserve a certain-
Mansa Musa:
Okay.
Jabari Zakiya:
… And what the length in that term is. So, you need to contest that at sentencing, because if you don’t contest in that sentencing, you can’t use it as an appeal. Right? And so, systematically, all these people need to understand, contest your whole sentence, contest it, contest it, contest it. Also, you need to know again, after a year on supervision, you can petition to have the rest of it terminated. So, these are the mechanical things people need to understand, because if people just started exercising your statutory rights, you could really make a dent in the re-incarceration of people.
Mansa Musa:
Okay, thank you, Jabari.
Jabari Zakiya:
Okay.
Mansa Musa:
There you have it. The Real News, Rattling The Bars. Jabari is rattling bars about supervised release. It’s unconstitutional, it’s draconian, it extends a person stay in prison. It supposed to go from punishment to rehabilitation, but only thing it’s doing is rehabilitation according to the definition to restore you back to your rights. So basically, what it’s doing is putting you back in prison. That’s what it’s restoring you to, put you back in prison. We ask that you continue to support The Real News and Rattling The Bars.
We ask that you look at this information that we just brought you about supervised release. If you have a family member, or some of you know it’s on supervised release, or getting ready to get convicted of a sentence, or getting ready to plead, then take Jabari’s advice. Have them look into whether or not their sentence or the crime they committed, mandate supervised release and if it don’t, have them contest it. Have them be aware that if they do get supervised release, after a year, they can appeal to have it revoked, or they can have their probation terminated. There you have it, The Real News. And guess what? We are The Real News.
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