A violation of supervised release means breaking one of the conditions in your judgment. What happens next depends on what the violation was, how the court learns about it, and what the judge decides. This page explains a federal supervised release violation step by step.
What counts as a violation?
Breaking any condition of supervised release is a violation. Violations fall into two broad groups:
- A new crime. Every person on supervised release has a mandatory condition not to commit another federal, state or local crime. A violation can be charged whether or not you are prosecuted for the conduct (USSG §7C1.1, Application Note 1).
- Breaking another rule. Missing a meeting with your officer, leaving your district without permission, or not reporting a move are examples. These are often called technical violations because the conduct is not a crime by itself.
What is a supervised release violation petition?
A violation petition is the written report that asks the court to act on an alleged violation. Probation officers ask the court to act by filing Probation Form 12C, titled Petition for Warrant or Summons for Offender Under Supervision. The form states the condition and the facts the officer says you broke. Under USSG §7C1.2, the probation officer must promptly report any alleged Grade A or B violation to the court. A probation officer must report a Grade C violation unless the officer finds that it is minor, not part of a continuing pattern, that not reporting it will not put a person or the public at undue risk, and that not reporting it fits any order the court has given about reporting violations.
The court may then issue a summons (an order to come to court) or a warrant (an order to arrest you). The Guidelines ask courts to consider a summons rather than a warrant where appropriate (USSG §7C1.3, Application Note 3).
At a revocation hearing, you are entitled to written notice of the alleged violation and disclosure of the evidence against you (Fed. R. Crim. P. 32.1(b)(2)). See what happens at a revocation hearing.
How are violations graded?
The Guidelines sort supervised release violations by grade in USSG §7C1.1:
- Grade A is the most serious grade. It covers a federal, state or local crime punishable by more than one year that is a "crime of violence" or a "controlled substance offense," as the Guidelines define those words, or that involves a weapon listed in 26 U.S.C. § 5845(a), such as a machine gun, a short-barreled gun, or a silencer. Any crime punishable by more than 20 years is also Grade A. A "controlled substance offense" means a drug-trafficking crime, such as selling a drug or possessing it with intent to sell. Simple possession, and a positive drug test, are not that term. A "crime of violence" means a felony that has as an element the use, attempted use, or threatened use of physical force against another person, or a listed crime such as murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, or extortion. The grade still follows what you actually did. Possessing a controlled substance can require revocation under § 3583(g) even when the grade is not Grade A.
- Grade B: any other crime punishable by more than one year in prison.
- Grade C: a crime punishable by one year or less, or breaking any other condition.
If there is more than one violation, the most serious grade controls. The grade is based on what you actually did, not on what you were charged with or convicted of. For a person with a felony conviction, having an ordinary firearm will generally be a Grade B violation, because federal law bars felons from possessing guns (USSG §7C1.1, Application Note 5).
The grade matters because it drives the recommended prison range. See the revocation table.
When is revocation mandatory?
18 U.S.C. § 3583(g) requires the court to revoke supervised release and impose prison time if you:
- possess a controlled substance in violation of your conditions;
- possess a firearm in violation of federal law, or otherwise violate a condition that bars you from having a firearm;
- refuse to comply with drug testing imposed as a condition; or
- as part of drug testing, test positive for illegal controlled substances more than 3 times over the course of 1 year. Illegal means illegal under federal law. Marijuana still counts.
There is a drug-treatment exception. Under § 3583(d), when someone fails a drug test, the court must consider whether available treatment programs, or the person's current or past participation in them, warrants an exception to mandatory revocation. The Guidelines say the same (USSG §7C1.5, Application Note 3).
What does revocation of supervised release mean?
Revocation means the judge ends your supervised release and orders you back to prison after finding a violation by a preponderance of the evidence (§ 3583(e)(3)). For the hearing steps, the proof standard, and what the judge may consider, see what happens at a revocation hearing. For the recommended ranges and the statutory prison caps, see the revocation table.
Can a violation be handled without prison?
Often the judge has a choice. Unless revocation is required by statute, the Guidelines tell the court to make an individualized assessment, taking the grade into account, before deciding whether to revoke (USSG §7C1.3(b)). They say revocation is "generally appropriate for a Grade A violation, often appropriate for a Grade B violation, and may be appropriate for a Grade C violation."
The court can respond in other ways (USSG §7C1.3, Application Note 2), such as:
- a warning, with supervision continuing as before;
- postponing the violation hearing to give you time to come into compliance;
- directing you to resources you need to comply;
- changing your conditions or extending the term.
The Sentencing Commission encourages courts, where possible, to use a wide range of these steps before revocation. None of them is promised in any case. The judge decides based on the facts.
Probation violations are covered in a separate part of the Guidelines, Part B. For probation as a sentence, see sentencing.net's page on federal probation.
If you or someone you love is facing a violation, see our supervised release violations page.
What should you do when you learn of an allegation?
Keep the petition, summons, hearing notice and any written messages. Write down the dates, and do not change or delete related records.
Follow the court's instructions and contact your current lawyer promptly. If you do not have a lawyer, Rule 32.1 says you must be told you can hire one, or ask for one if you cannot pay (Fed. R. Crim. P. 32.1).
Do not use a website form to explain what you are accused of doing. A family member can give the court and the hearing date without describing the facts. Sending an online request does not pause reporting duties or court deadlines.
Is one positive drug test safe?
No. The more-than-three-positive-tests rule is only one part of § 3583(g). Possession of a controlled substance and refusing a test are separate grounds for mandatory revocation.
A positive test can be offered as evidence of possession. In United States v. Crace, 207 F.3d 833 (6th Cir. 2000), a failed test plus the person's admission of use was treated as possession under that circuit's earlier rule that use is possession. That is one circuit's rule, not a nationwide one.
When someone fails a drug test, the court must consider whether treatment programs, or the person's current or past participation in them, warrant an exception to mandatory revocation (§ 3583(d)). That is a required consideration, not a promise of treatment instead of prison.
Under § 3583(d), a positive result is subject to a confirming test only if prison is possible and you deny the result or there is another reason to question it. A lawyer should look at the test, the allegation and the procedure.
Is defending the allegation different from arguing about the response?
Yes. A lawyer may need to check whether the conduct happened and whether it broke a valid condition. The lawyer may also check which grade applies, what evidence the court can use, and whether the law requires revocation.
If the court finds a violation, the next question is what response the law allows.
When the law allows an option short of prison, a concrete plan can help more than a general plea for mercy. Treatment, a reporting plan, housing, work and support from others may matter. No plan can make the judge choose an alternative.