Criminal defense attorneys faced with a guilty verdict, or a conviction after a plea bargain, often begin to prepare their case for sentencing. This often means preparing client histories and factors that argue for lightest sentence possible. However, far too often, these good intentioned lawyers fail to consider the terms and conditions of supervised release which will haunt the defendant long after he is released for prison.


Most federal sentences include some term of supervised release.
In 1984, Congress enacted the Sentencing Reform Act (SRA) which eliminated parole from the federal sentencing scheme. Parole was then replaced with supervised release.


Supervised release is very similar to probation. Probation is normally served as an alternative to incarceration. Supervised release, however, is served after confinement in prison. Both offenders have their supervision monitored by a probation officer and both are required to comply when terms and conditions imposed by the sentencing court.


In some types of cases, federal law mandates that the sentencing court impose particular conditions of supervised release, however, the judge also enjoy the discretion to attach other, unique conditions in almost any type of case.
General conditions are a prerequisite of any supervised release. Some of these conditions are spelled out in Section 3583(d) while others are expressed in Guideline 5D1.3(c) (7) of the U.S. Sentencing Guidelines.


Subsection (a) of the Guideline has 8 mandatory conditions, all of which are mandated by federal laws; Subsection (c) has what is called 15 “standard conditions” of supervised release are expansions of those required by statute; Subsection (d) has 7 “special conditions” that can be ordered by the court, ranging from participation in substance abuse and mental health programs to pay all debt obligations; and Subsection (e) allows the court to impose 6 additional “special conditions” that range from home detention to community service.


But it is Subsection (b) of the “conditions” of supervise release that is the devil in the details. This subsection allows courts to impose “other conditions” beyond those recognized by either statute or the Guidelines so long as the conditions “(1) are reasonably related to (A) the nature and circumstances of the offense and the history and characteristics of the defendant; (B) the need for the sentence imposed to afford adequate deterrence; (c) the need to protect the public from further crimes of the defendant; and (D) the need to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; and (2) involved no greater deprivation of liberty than is reasonably necessary for the purposes set forth [in the mandatory guidelines] and are consistent with any pertinent policy statements issued by the Sentencing Commission.”


To say that this broad discretion allowed to judges has created substantial problems in the federal sentencing scheme would be a classic understatement. The problems have become so endemic in the sentencing scheme that the Seventh Circuit Court of Appeals last year found the need to intervene and provide specific guidance to sentencing judges under its jurisdiction about the kinds of conditions that can be imposed on supervised release. In a consolidated pair of cases, United States v. Siegel and United States v. Norfleet (May 29, 2014), the appeals court offered this opening explanation about why it elected to intervene:


“ … there are serious problems with how some district judges are handling discretionary conditions of supervised release at sentencing. Two of the problems are relatively minor, and we mention them quickly to get them out of the way. One is the number—thirty—and the other the variety of the listed discretionary conditions. The sheer number may induce haste in the judge’s evaluation of the probation service’s recommendations and is doubtless a factor in the frequent failure of judges to apply the sentencing factors in section 3553(a) to all the recommended conditions included in the sentence.
“Because conditions of supervised release, though imposed at sentencing, do not become operational until the defendant is released, the judge has to guess what conditions are likely to make sense when the defendant is released. The longer the sentence, the less likely the guess is to prove accurate. Conditions that may seem sensible at sentencing may not be sensible many years later, when the defendant is finally released from prison. And while it’s true that conditions of supervised release can be modified at any time, 18 U.S.C. § 3583(e)(2), modification is a bother for the judge, especially when, as must be common in cases involving very long sentences, modification becomes the responsibility of the sentencing judge’s successor because the sentencing judge has retired in the meantime.
“A more serious problem with the current system is that … a number of the listed conditions, along with a number of conditions that judges modify or invent, are vague.
“Another serious problem is the difficulty of predicting recidivism. Reducing recidivism is the main purpose of supervised release, though some of the conditions of supervised release are intended to help the released prisoner adjust to life on the outside even if there is no worry that without them he would be likely to commit crimes; it may be apparent that by the time he’s released from prison he will be too old or infirm to resume a life of crime.
“There is an extensive social scientific literature on the causes and cures of recidivism .. But there are limitations to the studies as guides to sentencing. There is the difficulty of determining the number of crimes committed by a person after his release from prison—the number that is the real measure of recidivism—as distinct from the number of his arrests or convictions, which may be much smaller. And statistical studies are unlikely to enable a confident prediction that a particular inmate will or will not commit crimes after he is released. Moreover, while there is evidence that supervised release and other programs of community supervision do reduce recidivism, perhaps substantially, … there is controversy over the efficacy of some typical conditions of supervised release.”
In the Siegel/Norfleet cases, the appeals court after an exhaustive analysis found that the “numerous conditions of supervised release” after release from incarceration of the two defendants were improper because the conditions were “inappropriate for the specific defendants on their respective offenses of child sexual abuse and drug distribution”—conditions that were “inadequately defined” or “were imposed without the sentencing judge’s having justified them by reference to the statutory sentencing factors.”
To make it clear that this pair of cases was not an anomaly, the appeals court this year has already reversed and remanded two more cases for improper supervised release conditions. On January 13, in United States v. Thompson—a case whose supervised release conditions tracked those imposed in the Siegel case—the court reiterated its concern regarding “vague conditions” and the manner in which they are imposed. Thompson was followed by United States v. Sewell (March 13) in which the court, on its own through a “plain error” review, vacated the conditions of supervised release as being too broad.
In both Thompson and Sewell, the sentencing courts imposed conditions that each defendant “answer truthfully all inquiries by the probation officer” and “to permit the probation officer to visit [them] at any time at home or elsewhere.” The appeals court specifically found that these conditions, as well as other conditions imposed in the two cases, were “too broad in the absence of any effort by the district court to explain why they are needed.”
To illustrate just how ill-conceived some supervised release conditions can be, the appeals court pointed out how the sentencing judge in the Sewell case imposed the condition that the defendant “shall participate in a general equivalency degree, GED preparation course and obtain his GED at the discretion of the probation officer.” The condition was imposed notwithstanding that the defendant informed the court he already had a GED.
At least in the Seventh Circuit, “the general rule with regard to conditions of supervised release now requires that they are to fit the peculiar circumstances of the defendant being sentenced. They must also be defined in a way that puts defendants on notice of proscribed behavior.”
Hopefully, other federal circuits will follow the lead of the Seventh Circuit and restore some rationality to conditions of supervised release.