Tuesday, October 29, 2013

Professor Tom on Challenging Supervised Release Conditions

Now and then, we will provide for you the erudite, well-crafted, and long-winded musings of Professor Tom. For the inaugural edition, Tom delves into challenges to supervised release conditions.

Discretionary conditions of SR must meet three statutory requirements: (1) that they be “reasonably related to” the § 3553(a) sentencing factors, with the exception of “just punishment” (§ 3553(a)(2)(A))’ that they “involve[] no greater deprivation of liberty than is reasonably necessary” for the relevant sentencing purposes; and (3) that they be consistent with relevant USSC policy statements. 18 U.S.C. § 3583(d)(1)-(3). Recent appellate cases suggest that some discretionary conditions of SR may be vulnerable to challenge.

Sex offender conditions in non-sex cases. In the context of sentencing for a non-sex offense (robbing a post office), the Tenth Circuit has held that the defendant’s two prior sex offense convictions, a 33 year old sexual battery and a 17 year old aggravated battery originally charged as a sex offense, did not justify the imposition of sex offender treatment conditions. United States v. Dougan, 684 F.3d 1030 (10th Cir. 2012). The conditions at issue included not only prohibition of contact with minors, prohibition of pornography, and sex offender “mental health” conditions, but also possibly being subjected to polygraphy and penile plethysmography (PPG). The Tenth Circuit held that the priors were too remote to be meet the statutory requirements for the imposition of conditions of supervised release set forth in 18 U.S.C. § 3583(d). The Circuit also rebuffed the government’s argument that because the defendant had spent about 10 of the last 17 years since his last offense in prison, the prior offense was not too remote. Also, the Circuit found that the defendant’s intervening failures to register, while relevant, did not sufficiently change the equation. The Circuit did note that the neither the prior convictions nor the defendant’s subsequent behavior involved sex offenses involving minors.

Penile plethysmography (PPG). In a published case, the Second Circuit recently reversed the imposition of this condition on an offender convicted of a SORNA violation, holding that

"the plethysmographic condition does not bear adequate relation to the statutory goals of sentencing to outweigh the harm it inflicts, that it involves a greater deprivation of liberty than is reasonably necessary to serve any of those statutory goals, and that it may not, consistent with substantive due process, be imposed on McLaurin."

United States v. McLaurin, 2013 WL 5477619 (2nd Cir. Oct. 3, 2103). The opinion leaves little room for this bizarre procedure to be used in the Second Circuit, and it will certainly be helpful in challenging this SR condition elsewhere. Along the same lines is a Ninth Circuit case finding that the condition lacked adequate individualized justification. See United States v. Weber, 451 F.3d 552 (2006). Both opinions are noteworthy for several judges’ searing criticism of PPG as “Orwellian” and a tool of mind control.

Guideline term of SR in SORNA cases. The Seventh Circuit recently held – under the stringent plain error standard – that the guideline provision permitting SR of up to life, USSG §5D1.2(b)(2), does not apply to defendants convicted of violating SORNA. United States v. Goodwin, 717 F.3d 511 (10th Cir. 2013). Section 5D1.2(b)(2) permits the imposition of a term of SR of up to life for an “sex offense.” “Sex offense” is defined in relevant part as “an offense, perpetrated against a minor, under ... chapter 109B of such title.” The only offense listed in chapter 109B of Title 18 is the failure to register under SORNA, 18 U.S.C. § 2250. The Seventh Circuit found that failure to register is not an offense “perpetrated against a minor,” so the advisory guideline does not permit lifetime SR.  The Goodwin court noted, however, that 18 U.S.C. § 3583(k) does permit SR up to life, and that statute also sets a minimum term of SR of 5 years. Because this statutory minimum term if longer than the default range otherwise applicable to Class C felonies such as the failure to register, the statutory minimum becomes the guideline “range,” actually a single point.

Search conditions. USPO is increasingly seeking a special condition of SR along these lines:

The defendant shall submit his/her person, house, residence, vehicle(s), papers, business or place of employment and any property under the defendant’s control to a search, conducted by the United States Probation Officer at a reasonable time and in a reasonable manner, based upon reasonable suspicion of contraband or evidence of a violation of a condition of release. Failure to submit to a search may be grounds for revocation. The defendant shall warn any other residents that the premises may be subject to searches pursuant to this condition.

This language is similar to the search condition authorized as a condition of SR for felons required to register under SORNA. See 18 U.S.C. § 3583(d). As noted above, § 3583(d)(3) requires that any discretionary condition of SR be “consistent with any pertinent policy statements issued by” the Commission. Conditions of SR appear in USSG §5D1.3, and the search condition appears only in a policy statement authorizing such a condition for offenders sentenced for sex offenses. See USSG §5D1.3(d)(7). It might be fruitful to challenge a search condition in a non-sex case as violating the statutory requirement that it be consistent with the applicable policy statement.

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