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R~fesearch Service
Can Retribution Justify the Revocation of
Supervised Release? Courts Disagree.
March 13, 2023
What are the legitimate reasons that a government may subject an individual to criminal punishment?
Western penological theory and American legal history generally identify four principled bases for
criminal punishment: retribution, deterrence, incapacitation, and rehabilitation. The Sentencing Reform
Act (SRA) requires federal courts to impose an initial sentence that reflects these purposes of punishment.
The SRA also authorizes federal courts to sentence defendants to supervised release, encompassing a set
of conditions that the defendant must comply with upon release from prison for a period of time (or, for
some offenses, for up to life). A defendant's compliance with these conditions is supervised or
monitored by a federal probation officer. If a defendant violates a condition, the court may revoke the
supervised release and send the defendant back to prison, among other things. The SRA lists deterrence,
incapacitation, and rehabilitation among the factors that a judge must consider in making these revocation
determinations. The SRA does not, however, expressly include retribution as one such factor.
The federal appeals courts disagree as to whether, and to what extent, retribution may justify the
revocation of supervised release in light of this statutory omission. On one side of the divide, the U.S.
Courts of Appeals for the First, Second, Third, Sixth, and Seventh Circuits have held that federal courts
may consider retribution in making revocation decisions. On the other side, the Fourth, Fifth, and Ninth
Circuits have concluded that courts either may not consider retribution in these decisions at all or may
consider it only to a limited degree.
This Sidebar summarizes the four purposes of punishment, including retribution; offers an overview of
supervised release; and summarizes the aforementioned split. The Sidebar concludes with congressional
considerations.
The Purposes of Punishment
[T]he goals of penal sanctions that have been recognized as legitimate, according to the Supreme Court,
are retribution, deterrence, incapacitation, and rehabilitation. In general, retribution is the principle that
an individual should be punished because they deserve punishment. This theory of punishment is most
associated with philosopher Immanuel Kant, who wrote that punishment must in all cases be imposed
only because the individual on whom it is inflicted has committed a [cjrime. Retributive theory has
Congressional Research Service
https://crsreports.congress.gov
LSB10929
CRS Legal Sidebar
Prepared for Members and
Committees of Congress](ViewImageLocal?handle=hein.crs/govekwd0001&div=1&collection=&method=preview&ext=.png&size=3)
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