Federal Corner: Judge Posner’s Brilliant Analysis of Supervised Release - By F. R. Buck Files Jr.

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Thursday, February 12th, 2015

On January 13th, a panel of the United States Court of Appeals for the Seventh Circuit [Circuit Judges Posner, Kanne, and Rovner (Opinion by Judge Posner)] handed down its opinion in four cases that had been consolidated for oral argument, United States v. Thompson v. Ortiz v. Bates v. Blount, ___F.3d___, 2015 WL 151609 (7th Cir. 2015). In each of the cases, the judgment of the district court was reversed and the case was remanded for resentencing. Because of the limitation as to the length of this column, I will only focus on the first of these cases—United States v. Thompson.

Judge Posner’s general comments about supervised release are the best I have ever heard or seen on that topic. His opinion begins with these and contains, in part, the following:

[What Is Supervised Release]

Supervised release, in contrast to parole, consists of restrictions, imposed by the judge at sentencing, called conditions or terms of supervised release, that are to take effect when the defendant is released from prison and continue for a specified term of years (which can be life) . . . Supervised release is required by statute in fewer than half of cases subject to the sentencing guidelines . . . In the other cases the sentencing judge has discretion to order or not order it, see 18 U.S.C. §3583(a), but almost always the judge orders it in those cases too, United States Sentencing Commission, supra, at 69–70, often without explaining why [emphasis added].

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[Judges Seem Challenged to Order Only Terms That Are Appropriate]

Supervised release as it is designed and administered has turned out to be problematic in a number of respects . . . One is that the list of conditions required or suggested is very long. The supervised-release statute, 18 U.S.C. § 3563(b), imposes 9 “mandatory” conditions and 23 “discretionary conditions,” for a total of 32. The sentencing guidelines get into the act as well, see U.S.S.G. § 5B1.3, imposing 10 “mandatory” conditions, 14 “standard” conditions, and 13 “special” or “additional conditions”—a total of 37. The statutory and guideline conditions, where they overlap, are generally the same substantively, but their wording often differs . . . Understandably, given the number of conditions, many district judges simply list the conditions that they impose, devoting little or no time at sentencing to explaining them or justifying their imposition [emphasis added].

[A Practical Problem]

[D]efendants or their lawyers may also worry that a successful challenge to a condition or conditions of supervised release may induce the judge to impose a longer prison sentence, thinking that resistance to supervised release implies recidivist tendencies or intentions. And often a defendant is given no notice in advance of the sentencing hearing of the conditions of supervised release that the judge is thinking of imposing, which can make it difficult for his lawyer to prepare arguments in opposition.

[Conditions of Supervised Release Are Part of the Sentence]

Many district judges appear to have overlooked the fact that because the imposition of conditions of supervised release is part of the sentence, a sentencing judge is required by the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), to evaluate the propriety of any conditions of supervised release that the judge is thinking of imposing, by applying to the proposed conditions the sentencing considerations listed in 18 U.S.C. §3553(a). The considerations include (in subsections (1), (2), and (3) respectively) “the nature and circumstances of the offense and the history and characteristics of the defendant,” “the need for the sentence imposed,” and “the kinds of sentences available” [emphasis added].

        Any doubt that conditions of supervised release are a part of the sentence and subject therefore to the requirement that the judge before imposing sentence apply the sentencing factors in section 3553(a) is dispelled by 18 U.S.C. § 3583(c). It provides that “the court, in determining whether to include a term of supervised release, and, if a term of supervised release is to be included, in determining the length of the term and the conditions of supervised release, shall consider the factors set forth in [eight enumerated subsections of] section 3553(a).” And being part of the sentence, the imposition of conditions of supervised release is subject to the further requirements that “the court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence,”18 U.S.C. §3553(c), and “in determining the length of the term and the conditions of supervised release, shall consider the factors set forth in” eight enumerated subsections of section 3553(a).18 U.S.C. §3583(c) [emphasis added].

        Subsection (a) of section 3553 lists the sentencing factors that the judges are to consider in determining the sentence. From the omission of subsection 3553(a)(2)(A), the court in United States v. Murray, 692 F.3d 273, 280 (3d Cir.2012), inferred “that the primary purpose of supervised release is to facilitate the reentry of offenders into their communities, rather than to inflict punishment.” The omitted subsection (a)(2)(A) is “the need for the sentence imposed . . . to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.”

[Recommendations of the Probation Officer]

The sheer number of conditions may induce haste in a sentencing judge’s evaluation of the recommendations of the probation officer assigned to the case as to what conditions of supervised release to impose (if there are such recommendations—often there are not; there are not in any of the four cases before us) and is doubtless a factor in judges’ frequent omission to mention any of the sentencing factors in section 3553(a) or even any of the conditions recommended by the parties or the probation officer that the judge decides to include in the sentence.

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Still another problem is that probation officers, upon whom district judges rely heavily for recommendations concerning what conditions of supervised release to impose, spend disproportionate time on enforcement (that is, investigating violations of conditions of supervised release and recommending punishments for the violators) and have little time left over for suggesting appropriate conditions and helping the probationer to comply with them.

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[Some Conditions Are Vague]

And finally a number of the listed conditions, along with a number of conditions that judges invent, are, as we’re about to explain, hopelessly vague. See also our Siegel opinion, 753 F.3d at 712–16, for a fuller discussion of vagueness and ambiguity in conditions of supervised release [emphasis added].

[A Prelude to the Four Cases]

Given the problems we’ve enumerated, it is no surprise that the administration of supervised release by the district courts has not run smoothly. The types of oversights that we’ll be discussing—well illustrated by our four cases—are understandable, perhaps indeed inevitable, given the confusion that the applicable statutory and guidelines provisions have created.

[Thompson: A Lifetime of Supervised Release]

We begin with United States v. Thompson. Thompson was 23 years old when he began an online relationship with a girl of 14. They exchanged nude pictures of themselves. When she was 16 and he 25 she decided to run away from home. Thompson picked her up and drove her across state lines, and they had sex in a state in which the age of consent was 16 and their sexual activity therefore legal. Convicted in federal district court of possession of child pornography, and of traveling in interstate commerce for the purpose of engaging in sexual conduct, in violation of federal laws that fix the age of consent as 18 rather than, as in many states, 16, see, e.g., 18 U.S.C. § 2423(a), Thompson was sentenced to 210 months in prison. He does not challenge the prison sentence, but only conditions of supervised release.

        [W]hat is beyond odd—what is unauthorized—is that the judge imposed a lifetime of supervised release without any articulated justification. The need for an express justification was acute because, as the judge remarked, as a convicted sex offender Thompson will be subject after he is released from prison to a lifetime of mandatory state and local sex-offender reporting quite apart from supervised release. And sensible or not, the lifetime term is vitiated by the fact that in imposing it the judge was laboring under the misapprehension that, in his words, “a term of supervised release can be reduced but can’t be extended.” That’s wrong; it can be extended. 18 U.S.C. §§ 3583(e)(1)-(2); Fed.R.Crim.P. 32.1(c) [emphasis added].

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[Thompson: Prohibited Contact with Person Under 18]

A more serious error was a condition of supervised release that Thompson not have “any contact with persons under the age of 18 unless in the presence of a responsible adult who is aware of the nature of the defendant’s background and instant offense and who had been approved by the probation officer.” This can’t have been meant literally, since understood literally it would include males under 18 as well as females, though there is no suggestion that Thompson is bisexual. Furthermore, even if males are excluded from the no-contact rule, “contact,” being undefined, could be understood to mean being served by a waitress, paying a cashier, sitting next to a girl (a stranger) at a baseball game, replying to a girl asking directions, or being shown a friend’s baby girl—or his own baby, for that matter.

        We have warned against imposing a restrictive condition that is not reasonably related to the defendant’s “offense, history and characteristics. . . . Moreover, given the potentially severe restrictions on [the defendant’s] day-to-day life that this condition imposes, the district court’s lack of explanation of why it thinks this condition involves no greater deprivation of liberty than necessary to achieve the penological goals stated in 18 U.S.C. §3553(a) is troubling. . . . Because the district court has not provided any explanation of how this condition is reasonably related to [the defendant’s] offense and background or to the goals of punishment, involving no greater deprivation of liberty than is reasonably necessary to achieve these goals, we vacate the condition.” United States v. Goodwin, 717 F.3d 511, 523–24 (7th Cir.2013) [emphasis added].

[Thompson: The 24 Non-Mandatory Conditions]

The judge in Thompson’s case imposed a total of 24 non-mandatory conditions of supervised release. Because all those conditions were part of the sentence, the judge was, as we noted earlier in this opinion (as well as in Goodwin and Siegel) not permitted to impose them without determining their conformity to the sentencing factors in 18 U.S.C. § 3553(a). There is no indication that he did so. He just checked boxes in a list of conditions.

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[Thompson: Prohibitions on Alcohol and Felons]

Among the vague conditions is that “defendant shall refrain from excessive use of alcohol,” where “excessive use” is not defined, though it could readily be defined, as we explained in United States v. Siegel, supra, 753 F.3d at 715–16. Fatally vague is a condition forbidding the defendant to “associate with any person convicted of a felony, unless granted permission to do so by the probation officer.” How would the defendant know whether someone he was associating with had ever been convicted of a felony? There is no stated requirement that he know; the condition appears to impose strict liability. If so, to protect himself he would have to submit the name of any person he met to his probation officer to determine whether the name appeared in any database of felons. Maybe liability for violating the condition isn’t strict; so might it be enough that a reasonable person would know that a person whom the defendant was associating with was a felon, even if the defendant didn’t know? And what exactly is “association”? Is a single meeting enough, or is the word intended to denote friendship, acquaintanceship, or frequent meetings? What if a dependent whom Thompson will be required to support when he is released from prison is convicted of a felony? Must he stop associating with that person as well? Would it not be more sensible to scrap the quoted condition and instead forbid the defendant “to meet, communicate, or otherwise interact with a person whom he knows to be engaged, or planning to be engaged, in criminal activity”?

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[District Judges Could Make Life Easier for the Parties]

A judge cannot properly decide what sentence to impose without consideration of the sentencing factors in 18 U.S.C. § 3553(a). If upon consideration of these factors he decides that he’s leaning toward imposing particular conditions, he should inform the parties of the conditions and the possible reasons for imposing them, so that they can develop arguments pro or con to present at the sentencing hearing . . . An alternative would be for the judge to explain at the sentencing hearing what conditions he was inclined to impose and why, and ask the defendant’s lawyer whether he objects to any of them; if the lawyer had a reasonable need for more time to decide whether he has grounds for objection, the judge could adjourn the hearing.

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Either of our suggested approaches would be a “best practice,” which is different from a required practice; for except with regard to conditions of supervised release not listed in the statute or the guidelines . . .

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We need to note an exception to our “best practice” suggestion, however. Some conditions of supervised release are administrative requirements applicable whenever a term of supervised release is imposed, regardless of the substantive conditions that are also imposed . . . It is not correct, however, as has been suggested, that all the standard conditions are “basic administrative requirement[s] essential to the functioning of the supervised release system.”

My Thoughts

  • Judge Posner is one of the great jurists of our time. He speaks and writes with wonderful clarity. Over the years, I have enjoyed reading many of his opinions and writing about some of them.
  • For anyone who represents clients in the federal courts, Judge Posner’s opinion is absolutely a must read.