Charging Congress with Change: Applying the Fugitive Tolling Doctrine to Supervised Release

In 1984, Congress passed the Sentencing Reform Act in an effort to bring consistency and certainty to federal sentencing. As part of the Sentencing Reform Act, Congress eliminated federal parole and replaced it with a new form of post-confinement monitoring: supervised release. While Congress created supervised release as a way to solve then- existing issues with federal parole and to help Congress achieve its overall goal in reforming federal sentencing, this new form of supervision did not accomplish everything that Congress hoped it would.

When Congress created supervised release, it did not address the fugitive tolling doctrine. Under the fugitive tolling doctrine, a term of supervised release tolls, or pauses, when defendants flee from supervision and become fugitives. After defendants are apprehended, they must serve the time that they were not under supervision. Congress’s decision not to address the doctrine has resulted in a circuit split over whether the fugitive tolling doctrine should apply to supervised release, creating the very inconsistencies in sentencing that Congress sought to avoid. While one circuit court of appeals has held that the doctrine does not apply to supervised release, five have held that the doctrine does apply to supervised release. Furthermore, the United States Supreme Court has declined to consider the issue.

This Comment discusses federal sentencing before and after the Sentencing Reform Act, including the creation of supervised release. Then, this Comment introduces the issues surrounding the fugitive tolling doctrine and the resulting circuit split. Ultimately, this Comment recommends that Congress should create a fugitive tolling provision for supervised release that would allow for consistency across all federal courts.