We've written before on challenges to conditions of supervised release. It's been a busy few months on this front. A few of the highlights:
United States v. Gnirke (9th Circuit): In a sexual abuse case, a successful challenge to a ban on the possession of depictions of "sexually explicit conduct," as defined at 18 U.S.C. 2256. The problem with this definition is that the statute, aimed at child pornography, includes "simulated sex." Obviously, a ban on "simulated sex," when adults are the simulators, is a huge problem. Think of a movie off the top of your head. It probably has a sex scene in it. We've seen this condition recently. This case offers a good explanation as to why it is problematic. The condition also prohibited the defendant from entering places containing such depictions. Again, problematic (as the Court notes, if defined by 2256, Walmart is off limits). So the Court corrected the mistake on its own, essentially rewriting the condition to prohibit "pornography." A concurrence takes issue with this rewriting, rather than remanding to the district court to fix the problem, and we agree. Appellate courts cannot impose sentences. Special conditions are part of a sentence. Thus, it is improper for an appellate court to impose a special condition of supervised release. Oh well. At least the Ninth's formulation does not infringe as heavily on First Amendment rights.
United States v. Cary (7th Circuit): In a SORNA case, and under plain error review, the Seventh addresses a number of special conditions. We note the following rules: (1) any condition found in the written judgment, but not announced orally at sentencing, must be vacated; (2) district courts must give reasons for the imposition of any special conditions of supervised release; (3) any filtering software condition must give notice of the types of material to be filtered; and (4) any payment conditions must include an ability to pay provision.
United States v. Fernandez (5th Circuit): In a SORNA case, the Fifth vacates a condition requiring filtering software because the defendant had no history of committing crimes on the Internet.
United States v. Matta (2d Circuit): In a significant decision (we think), the Second held that the district court improperly delegated its authority to probation when it allowed probation to determine whether the defendant would be required to participate in an inpatient or outpatient drug treatment program. Read this decision.
United States v. Hill (4th Circuit): This case is not about the imposition of a condition, but rather what happens when the Court does not impose one. The condition at issue: the one authorizing warrantless searches. That condition was absent, so the warrantless search was held unconstitutional. See, there is a reason why we challenge these conditions. Go here to read more.
United States v. Thompson (7th Circuit): We save the best for last. This case tackles standard conditions, not special conditions, and vacates a number of them as unconstitutionally vague. This is a must read, authored by Judge Posner, who has led the charge in bringing some sense to this area of the law. The beginning of the decision talks about supervised release in general, and how it is different than both parole and probation because it is in addition to imprisonment, not in lieu of it. This is a point the lower courts often overlook, but one we should highlight for them.
Final thoughts: We've noticed tension when we raise these types of issues at a sentencing hearing. So, if you are asking for a downward variance, and have no interest in diverting attention from that argument, consider that conditions can be modified at any time via 18 U.S.C. 3583(e)(2). This point also means that it is unnecessary to challenge conditions on appeal under plain error review. We need to stop doing this. And finally, if your client is to be supervised out of district, and you challenge a condition (or two), note this fact. It is important because it undermines any blind-faith reliance the judge might have with respect to his/her probation officers (as an aside, why not combine his and her and create a new word -- like "hir" or "hes" -- and eliminate the gender debate once and for all).