Concerns with supervised release conditions

In United States v. Siegel, the 7th Circuit concluded that there were “serious problems with how some district judges were handling discretionary conditions of supervised release at sentencing,” 753 F.3d 705, 708 (7th Cir. 2014). Since this opinion was issued, the 7th Circuit has issued a series of additional opinions, shedding more light on the goals, scope and limitations of conditional release. Clearly, this is an issue that has come into sharp focus in the 7th Circuit. Criminal defense lawyers practicing in the 7th Circuit need to have a working understanding with Siegel and its progeny.

The Siegel opinion identified several distinct areas of concerns with the process of implementing conditions of supervised release:

1. Many of the conditions are vague, leaving probation officers with largely unfettered discretion.

2. The conditions do not necessarily do an adequate job of actually reducing recidivism.

3. Probation officers with heavy caseloads are forced to focus more on enforcement of conditions, as opposed to meaningful supervision of probationers.

4. It is sometimes difficult for judges to understand the rationale of probation’s recommendations without additional social science training.

5. Defense counsel may not even learn of probation’s recommendations for supervised release for the first time until the sentencing hearing.

In addition, the court noted that there is often a substantial period of time between a sentencing hearing and the point in time when a defendant actually begins his or her period of supervised release due to intervening incarceration, Id at 708. As a consequence, “(c)onditions that may seem sensible at sentencing may not be sensible many years later, when the defendant is finally released from prison,” Id.

The court stopped short of mandating that sentencing judges implement certain procedures to avoid these concerns. It did, however, provide a list of “best practices” for judges to follow in order to more accurately assess and impose meaningful supervised release conditions. Specifically, the Siegel opinion recommended that the District Court:

1. Require probation to inform defense counsel at least two weeks before the sentencing of its supervised release recommendations.

2. Conduct a separate analysis under 18 U.S.C. 3553(a) of whether suggested release conditions are appropriate.

3. Analyze whether each condition is truly applicable to the specific facts of the case and characteristics of the defendant being sentenced.

4. Ensure that each condition is clearly worded, noting that usually neither the probation officer nor the defendant is an attorney.

5. Suggested that, on the “eve of his release from prison,” the defendant be required to attend a hearing in front of the sentencing judge in order to be reminded of the conditions of his or her release. If the situation with the defendant has changed during the execution of his or her sentence, the District Court should consider modifying any conditions to reflect the same.

Following the Siegel decision, the 7th Circuit provided further clarification on the need to provide defense counsel with notice of the issues in advance of, and an opportunity to fully address them at, the sentencing hearing. See United States v. Thompson et al, 777 F.3d 368 (7th Cir. 2015); United States v. Downs, 784 F.3d 1180 (7th Cir. 2015); United States v. Kappes, 782 F.3d 828 (7th Cir. 2015); United States v. Phillips et al., 2015 WL 3937527 (June 26, 2015).

For example, in United States v. Thompson, 777 F.3d 368, 376 (7th Cir. 2015), the court stressed that the sentencing court has a duty to explain all parts of a defendant’s sentence under 18 U.S.C. §3553(a), and this duty extends to conditions of supervised release. The Thompson court also provided that a sentencing judge should: “… inform the parties of the conditions and the possible reasons for imposing them, so that they can develop arguments, pro or con, to present at the sentencing hearing,” Id. at 377. Another possibility would be for the judge to explain the conditions he or she was considering and inquire about whether there was any objection to them, providing additional time, including an adjournment if necessary, Id. Although this type of procedure is not mandatory, the Thompson decision stressed that whatever procedure a District Court implements, it implicates Rule 32(i)(1)(C) of the Federal Rule of Criminal Procedure, which requires the court to allow the parties to comment on “matters relating to an appropriate sentence,” Id. at 378.

In essence, a District Court must take the initiative to allow for full litigation of any substantive condition of a defendant’s sentence, including conditions of supervised release. While the 7th Circuit relayed “best practices” for a District Court to follow, the lessons for attorneys from this line of cases are that the 7th Circuit is ready and willing to review the appropriateness of these conditions when implemented, and that defense counsel needs to pay particular attention to them when addressing the overall appropriateness of a defendant’s sentence.•

• James J. Bell and K. Michael Gaerte are attorneys with Bingham Greenebaum Doll LLP. They assist lawyers and judges with professional liability and legal ethics issues. They also practice in criminal defense and are regular speakers on criminal defense and ethics topics. They can be reached at [email protected] or [email protected]. The opinions expressed are those of the authors.