Monday, October 27, 2014

The New Frontier: Special Conditions of Supervised Release

Congress created supervised release, and with it special conditions of supervised release, in the Sentencing Reform Act of 1984. That was quite some time ago. Through the years, criminal defense attorneys have challenged certain conditions, and courts have (sometimes) struck them down. But not frequently. Until now. Well, at least in the Seventh Circuit. On May 8, 2013, the Seventh Circuit issued this opinion, and the rest is history. Within the next year, this, this, and this happened. Then, on May 29, 2014, there was this gamechanger (via Judge Posner). Since then, there has been this, this, this, this, and this. And now this
If you follow the hyperlinks, you will find 11 published decisions vacating special conditions of supervised release (most, if not all, litigated by the Federal Defender's Office in the Central District of Illinois). In an 18-month span. Truly extraordinary.
Now, that last decision (U.S. v. Hinds) came down today. The decision vacated a suspicionless search condition and a payment condition. Good results. But good decision? I say no, and here is why:
On the search condition, the Court refused to rule out "unannounced and random searches where appropriate." The problem with this: the statutes -- 18 U.S.C. 3583(d) and 18 U.S.C. 3563(23)-- do not allow it. In plain terms, search conditions: (1) must include a reasonable suspicion requirement; and (2) may only be imposed in cases involving a defendant who has to register as a sex offender. Without both preconditions, a court has no authority to impose a search condition.
On the payment condition, the Court held that 18 U.S.C. 3672 authorizes courts to order defendants to pay for treatment programs as a condition of supervised release. The first part of that sentence is correct; the last, and italicized portion, is not. Section 3672 has nothing to do with supervised release. Nothing. At all. The words "supervised release" are not found in that provision, nor is there a cross-reference to 18 U.S.C. 3583 (the statute that actually involves supervised release). Moreover, section 3672 allows reimbursement to the Director of the Administrative Office of the Courts, not to service providers. Yet, defendants, in practice, are expected to pay for their treatment (not reimburse a third party who pays for the treatment). Stated differently, payment conditions do not require a defendant to reimburse the Director, as 3672 contemplates, but rather to pay service providers for the actual service provided. The Court's perfunctory analysis on this issue is disingenuous. At a minimum, if 3672 is the basis for a payment condition, then the condition itself should mirror the statute. And finally, to think that Congress would authorize payment conditions as conditions of supervised release assumes that Congress has resuscitated debtors' prisons (because jail is the natural consequence of a violation of a condition of supervised release). Dickensian society is dead. The Seventh Circuit should know that. There are modern ways to enforce money judgments; imprisonment is not one of them.   
     
        

1 comment:

  1. With you on the search condition, though the panel in Farmer was very skeptical as to the 3583(d) argument that it could never be imposed. Not sure the Seventh Circuit is ever going to get that categorical.

    On the payment conditions, here's a question: instead of having supervised release revoked, could a defendant be held in contempt of court for failing to pay for treatment?

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