Court leans against applying fugitive tolling in federal supervised release

The Supreme Court heard argument on Monday in Rico v. United States about whether defendants who flee from their probation officers’ supervision during their term of supervised release (the conditions one must follow after being released from incarceration) can claim that the term of supervision continued and then expired when they were a fugitive. If the term of supervision can expire while a defendant is a fugitive, and a doctrine called fugitive tolling does not apply to prevent that expiration, then a court would lack the power to issue any warrant or summons for new violations of the conditions of supervision after the term’s expiration. When the new violations are themselves new crimes, and not a more technical violation like failing to submit to a drug test, the defendant can be prosecuted separately for those new crimes. But without fugitive tolling, the district court would lack the authority to revoke supervised release for crimes discovered after the term of supervision ended. 

If this isn’t confusing enough, in Rico’s case, fugitive tolling was not needed to enable the district judge to revoke her supervised release and instead simply affected what punishment she should receive. That added complexity ultimately highlighted a diminished practical significance of the court’s ruling, as reflected in the justices’ questions. 

Fugitive tolling is shaped by one central statutory provision, 18 U.S.C. § 3583(i). Section 3583(i), titled “Delayed Revocation,” says that, if a court issues a warrant or summons for violations of supervised release before the term of supervision expires, then the court will continue to have the power to revoke the defendant’s term of supervision and impose both a prison term and a further period of supervised release for those violations. Consequently, under Section 3583(i), if a defendant becomes a fugitive while on supervised release, and the probation officer files a petition to revoke supervised release before the term ends, fugitive tolling is unnecessary to revoke the defendant’s term of supervision. Section 3583(i) gives the court authority to revoke supervision because the defendant became a fugitive, and a court would not have to rely on any further conduct by the defendant, such as the commission of a new crime, to revoke supervised release. And when the court turns to the appropriate sentence for the revocation, it could simply take into account all of the defendant’s conduct, including new crimes committed after the expiration of the term of supervised release. 

That practical reality led to a question from Justice Samuel Alito early in the oral argument that underscored just how little is at stake in typical cases about whether fugitive tolling applies to a term of supervised release. Alito asked Rico’s counsel, Adam Unikowsky, whether “what she did after the expiration” of her term of supervised release in committing new crimes was “any less relevant” to the sentencing determination “than what she did before the expiration of” her term of supervision. Alito indicated that all of the defendant’s conduct seemed relevant to choosing a sentence, and if that is correct, then in Rico’s case, the sole difference that fugitive tolling would make is in determining her sentencing guidelines range. Unikowsky agreed. 

To understand Alito’s point about the sentencing guidelines range, which advises judges on how much punishment a defendant should receive, it is helpful to know how it is determined for a violation of supervised release. Under those guidelines, fleeing from supervision counts as a Grade C violation, the least serious grade of supervised release violation and results, for Rico, in an advisory guideline range of 8 to 14 months of imprisonment given her criminal history. But if the fugitive tolling doctrine allows a court to treat her crimes while a fugitive as also counting as violations of supervised release, in addition to her absconding, then Rico would have Grade A violations. The guidelines treat the additional crimes as more serious, resulting in an advisory guideline range of 33 to 36 months of imprisonment. 

The court in Rico’s case ended up imposing a sentence of 16 months, slightly above the Grade C range and well below the Grade A range. Consequently, although it is obvious that the court understood it was not obliged to impose a sentence within the sentencing guidelines range, Rico’s argument is that without fugitive tolling, her guidelines range would have been lower, and that might have affected what sentence the judge thought was appropriate. 

At the oral argument both Unikowsky and the lawyer for the government, Joshua Handell, pointed out that there are other, unusual scenarios, not presented by Rico’s case, where the lack of a fugitive tolling doctrine could affect more than just the advisory guidelines range. If no warrant or summons were issued before the defendant’s term of supervision expired, the availability of fugitive tolling for the term of supervised release in that scenario would make the difference on whether the court could revoke the term of supervision at all. Section 3583(i)’s requirements would not be satisfied, since the term of supervision would have expired. 

But Justice Neil Gorsuch highlighted that these other scenarios are unusual and typically involve a defendant who flees near the end of a term of supervision, without detection, before the term of supervision expires. The stakes from these unusual scenarios appeared small.

Raising an issue distinct from when crimes by a fugitive count as violations of supervised release, Justice Ketanji Brown Jackson noted that a defendant who flees from supervision cannot be said to have received “credit” for the time spent as a fugitive. Under Section 3583(h), when a court revokes supervision, the court may impose a term of imprisonment as well as a new term of supervised release to follow, with the caveat that the new term of supervision must be reduced by the length of the term of imprisonment that the court imposed. That caveat, while preventing supervision from effectively lasting forever for repeat offenders of the terms of supervised release, does not meaningfully translate into a “credit” for being a fugitive.

In an argument where practical considerations loomed large, the justices also engaged with the parties’ technical arguments about the application of the fugitive-tolling doctrine. For example, the government invoked what Unikowsky acknowledged was an “intuitive” argument that a defendant who is a fugitive is not serving “supervised” release and should not be allowed to treat the clock of “supervision” as running. But perhaps in part because of the muted practical consequences of rejecting that point, it appears that the justices may find countervailing considerations more persuasive, such as Unikowsky’s argument that the government’s theory requires accepting both that the term of supervision is tolled while the defendant is a fugitive and at the same time that crimes the defendant commits as a fugitive violate the term of supervised release.