Fugitive tolling and federal supervised release

In Rico v. United States, the Supreme Court will consider whether the fugitive-tolling doctrine – the legal principle that a criminal defendant should not receive credit toward his sentence for time spent as a fugitive – applies when a defendant absconds from (that is, flees from or evades) supervised release, thereby preventing the term of supervision from expiring while the defendant is on the lam. Although fugitive status can be evocative in popular culture, as illustrated by the FBI’s ten most wanted list launched in March 1950, the circumstances of fugitives from supervised release tend to revolve around the sad, gritty facts of recidivism and, as illustrated by Isabel Rico’s case, drug addiction.   

Rico pleaded guilty to conspiring to distribute methamphetamine and heroin after she and a coconspirator made a sale to a confidential informant. Following her 84-month sentence, she began a four-year term of supervised release in January 2017. The terms of her supervised release prohibited her from using controlled substances, required her to participate in drug treatment and testing, mandated that she notify her probation officer at least 10 days before changing her residence, and prohibited her from committing another crime. 

Several months into her term of supervision, however, Rico used methamphetamine and failed to report for drug testing and treatment. In response, the district court revoked her supervision, ordered her to serve two months in prison, and imposed a new 42-month term of supervised release, which was set to expire in June 2021. 

During her second term of supervision, Rico again began using illegal drugs, moved without informing her probation officer, and absconded from supervision. While Rico was a fugitive, and before her term of supervision would have expired, the probation officer filed a petition alleging that she violated her terms of supervised release by using drugs and absconding. 

In January 2023, after four years and eight months of not being supervised by her probation officer, Rico appeared in federal court for her violations of supervised release. During her time outside of federal supervision, she had committed additional state crimes – evading a police officer, driving without a license, possessing drug paraphernalia, and possessing fentanyl for sale. These additional crimes were not identified in the petition that the probation officer filed when Rico absconded. At Rico’s new revocation hearing, the court imposed a 16-month prison sentence and a new two-year term of supervised release. 

How fugitive tolling would apply in Rico’s case

Because the probation officer filed a petition before June 2021 to revoke Rico’s supervised release, Rico acknowledges that, under 18 U.S.C. § 3583(i) (the “[d]elayed revocation” provision of the supervised release statute), the district court had the power to revoke her term of supervised release for her absconding and drug use and impose a term of imprisonment and a new term of supervision for those violations. The fugitive-tolling doctrine is not needed to justify those steps, and Rico does not argue otherwise. 

Fugitive tolling becomes relevant for revoking Rico’s term of supervision for the additional crimes she committed that were not identified in the probation officer’s petition. In other words, fugitive tolling would result in Rico’s term of supervision not expiring in June 2021 and would allow new violations to be alleged in a petition after that date. 

Rico does not question that fugitive tolling applies in other sentencing contexts, such as when a defendant escapes from prison, but she argues that it does not apply to supervised release. Both Rico and the federal government agree that, although supervised release is part of a defendant’s sentence, it serves a different role than the term of imprisonment. Rather, supervised release is designed to facilitate a defendant’s transition back to a law-abiding life through a package of services and prohibitions aimed at addressing major hurdles to leading a better life – treatment and testing for drug addiction, financial monitoring, assistance in gaining employment, and, of course, requirements to follow the probation officer’s instructions and not violate the law. 

This is far from a trivial concern: recidivism is a serious problem among federal defendants. According to a study by the U.S. Sentencing Commission, approximately half of federal defendants are rearrested, with a median time to rearrest of 19 months. When a defendant breaks the cycle of recidivism, both the defendant and society benefit enormously. Intensive forms of supervision for drug offenders – particularly those who demonstrate the crucial desire to try to beat an addiction – provide some of the most heartening outcomes in federal criminal prosecutions.

Despite agreeing that supervised release serves different purposes than the term of imprisonment, Rico and the government differ on whether fugitive tolling can apply when a defendant absconds from supervised release.

Rico’s arguments against applying fugitive tolling to supervised release

A central point that Rico makes is that she was barred from committing new crimes throughout her second term of supervised release – including after she absconded – until June 2021, when the 42-month term expired. She thus views her term of supervision as a clock with a set of prohibitions and treats the probation officer’s supervision and the drug treatment and monitoring as, effectively, nonessential to determining whether she was still subject to a term of supervised release after absconding. 

Rico highlights that the supervised release statutes do not include any express fugitive-tolling provision, and she rejects any suggestion that the supervised release statutes incorporate any common-law (that is, developed through decisions by courts, rather than through laws enacted by legislatures) fugitive-tolling doctrine for a number of reasons: a court may not extend a sentence based on the common law; the common law does not apply to supervised release; and Congress implicitly abrogated any such common-law doctrine through other express provisions in the statutes governing supervised release. 

Rico adds that any doubts about how to construe the supervised release statutes should be resolved in her favor under the rule of lenity. According to the rule of lenity, if a statute remains grievously ambiguous after a court has done its best to interpret the statute, the court will then adopt an interpretation that favors the defendant. 

The government’s arguments in favor of fugitive tolling for supervised release

The government’s view boils down to one straightforward proposition: a fugitive from supervision is not entitled to credit merely because her term has expired. While Rico treats supervised release as fundamentally a clock and a set of prohibitions, the government views the probation officer’s role in supervising a defendant as central to what constitutes supervised release. A defendant who thwarts supervision is not under “the supervision of [her] probation officer” in accordance with 18 U.S.C. § 3624(e), and is not “be[ing] supervised” for purposes of 18 U.S.C. § 3601. The government’s interpretation of the statutory language of the supervised release statutes also captures an obvious point: if absconding from supervision once a defendant violates a condition can both lighten the burdens of supervised release by deleting the probation officer’s role and can run out the clock on supervision, the incentives to abscond increase dramatically.

In the government’s view, the common-law fugitive-tolling doctrine both applies to supervised release and reinforces what the statutory language implies. Under common-law principles applied to prison sentences, the court has held that “[m]ere lapse of time without imprisonment or other restraint contemplated by law does not constitute service of sentence.” And a defendant cannot “take advantage of [her] own wrong,” as the government is arguing Rico is doing here. Put another way, the term of supervised release was intended, in part to help Rico break free of her drug addiction to reduce her recidivism; by absconding from her probation officer’s supervision, the regular drug testing, and the drug treatment, Rico defeated that part of her term of supervised release.  

The government is careful, however, to note that merely missing a meeting or violating a condition of supervised release does not itself make a defendant a fugitive. Rather, the defendant must have made it impossible for the probation officer to supervise her actions, while knowing her obligations to remain supervised.

The court’s decision in Rico’s case should not only clarify how supervised release operates when a defendant absconds, but should also more generally illuminate when Congress will be deemed to have incorporated a common-law rule into a statute.