According to a January 2017 report by The Pew Charitable Trusts, the number of federal offenders serving a period of supervised release—post-prison community monitoring similar to state parole supervision—reached an all-time high of approximately 115,000 by end of 2015. By comparison, the number of such offenders was only 39,000 in 1995.


Supervised release, a component of the Sentencing Reform Act of 1984, went into effect in 1987, and four decades later, more than 8 out of every 10 offenders sentenced to a federal prison will receive, on average, a four-year period of supervised release following incarceration.


Supervised Release for Sex Offenders


There are two kinds of offenders on supervised release: sex offenders and all other offenders. There are a number of mandatory conditions for all offenders on supervised release as set forth in 18 U.S.C. § 3583(d) which are: 1) must not commit another offense while on parole; 2) refrain from unlawful use of controlled substances and submit to drug testing; 3) make restitution to the victim of the offense; and 4) submit to the collection of a DNA sample, among others.


In 2006, with the Adam Walsh Child Protection and Safety Act, Congress enacted a mandatory condition explicitly for all federal sex offenders: the requirement that they register under the Sex Offender Registration and Notification Act (SORNA) and abide by all the requirements of that Act.


Of all the federal sex offenders, those convicted of child pornography-related offenses, involving both production and non-production offenses, face some of the he most punitive mandatory and discretionary conditions of supervise release which can include but are not limited to:


  • Periodic psycho-sexual assessment
  • Subject to polygraph testing;
  • Outright bans or limitations on use of computers/Internet; and
  • Limitations on being around children, including their own, without supervision.


In imposing these conditions, the trial court need only show in the record that the conditions are “narrowly tailored” or “reasonably related” to effective supervision and rehabilitation of the offender in order to secure approval of them by the federal circuit courts of appeals.


Terms of Supervised Release


In 2003, Congress enacted the PROTECT Act significantly increased supervised release terms on all child pornography offenses requiring that these offenders serve a mandatory minimum term of 5 years up to a lifetime term of supervision. While the current U.S. Sentencing Guidelines effectively recommend a lifetime of supervision for all child pornography offenders, the Fifth and Third Circuit Courts of Appeal have held that a trial court commits reversible error if they “blindly and without careful consideration of the specific facts and circumstances of the case before it” consider these Guideline recommendations.


Mandatory Revocation, Minimum Term of Incarceration


Beyond governing the conditions of supervised release for sex offenders, Section 3583(k) provides that if a sex offender, including one convicted of child pornography, violates the conditions of his/her supervised release by committing another sex offense (including child pornography), revocation is mandatory and a minimum term of five years of imprisonment must be imposed. The statute’s use of the term “commit” does not mean the offender must be convicted of a new offense; only that the trial court determined by a preponderance of the evidence that a new offense was committed.


Tenth Circuit Rules §3583(k) Unconstitutional


Last month the Tenth Circuit Court of Appeals, in United States v. Haymond, struck down the mandatory minimum 5-year term for revocation in sex offender cases set forth in § 3583(k) as unconstitutional because it violates due process.


In January 2010, Andre Haymond was convicted of one count of possession and attempted possession of child pornography for which he was given a 38-month prison term to be followed by a 10-year term of supervised release. Haymond started serving his supervised release term in April 2013.


After more than two years of supervised release, Haymond’s probation officer moved to have the offender’s supervised release revoked because the probation officer discovered images of child pornography on offender’s computer following a routine search. The sentencing court found, by a preponderance of the evidence, that Haymond had violated the conditions of his supervised release by possessing 13 images of child pornography—an offense that triggered the mandatory 5-year minimum term of imprisonment.


Punishment for Crime Not Proven Beyond a Reasonable Doubt


The Tenth Circuit upheld Haymond’s revocation but reversed the 5-year minimum term, finding that “18 U.S.C. § 3583 is unconstitutional because it strips the sentencing judge of discretion to impose punishment within the statutorily prescribed range, and it imposes heightened punishment on sex offenders based, not on their original crimes of conviction, but on new conduct for which they have not been convicted by a jury beyond a reasonable doubt.”


This decision is welcomed by criminal defense attorneys who see their clients convicted of sex offenses treated far more harshly than other offenders, including those convicted of serious crimes of violence and drug offenses, simply because they are sex offenders. It is a fundamental principle of due process that no offender should be sentenced to a term of imprisonment absent a formal indictment and a determination of guilt made either by a jury beyond a reasonable doubt or by a guilty plea entered by the accused.