Sunday, April 3, 2016

Challenging conditions of supervised release

It may seem like there are no more objections to be made to conditions of supervised release after the Tenth Circuit's opinions in Munoz and Llantada. In those cases, the Court rejected vagueness and other challenges to a host of standard (and a few special) conditions of release.

But all is not lost.

First there may yet be challenges to make to standard conditions of supervised release, but they must be made first in the district court to preserve them for appeal. If you want to challenge a condition, read Munoz and Llantada first, and be prepared to distinguish your claim from the claims rejected there.

Second, the Tenth Circuit read the challenged conditions in these cases "with the gloss of common sense" to uphold them, optimistically observing in Llantada: "We presume that in Llantada's future, probation officers and judges will heed our directive to apply the conditions of supervised release in a commonsense manner, rather than a technical one." This is language that counsel should invoke when arguing against the revocation of supervised release based on an unreasonable or overly technical reading of a condition.
Image result for no tattoos sign
Third, non-standard conditions are always subject to challenge for lack of sufficient findings. Just last month, the Eighth Circuit vacated a condition of supervised release prohibiting the defendant from getting any more tattoos. This tattoo taboo was not reasonably related to the offense (felon in possession of a firearm), the defendant's correctional needs, deterrence, or public safety, held the Court.

No comments:

Post a Comment