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December 21, 2009

A novel (and constitutionally questionable?) dating restriction as a probation condition

This local story from Wisconsin, which is headlined "Appleton teen convicted of fleeing Wisconsin with his girlfriend not allowed to date girls for three years," reports on a novel condition of probation imposed in a local court.  Here are the particulars:

Appleton teen convicted of fleeing the state with his girlfriend in a stolen car with a stolen gun will not be allowed to date any girls for the next three years.

Jordan Christensen, 19, was placed on three years probation Friday by Outagamie County Judge John Des Jardins, who ordered, as a condition of probation, “no dating of the opposite sex without permission of your probation agent.”

Christensen was sentenced on charges of theft of a firearm, auto theft and bail jumping for the May 26 series of incidents that triggered an Amber Alert.

Des Jardins also sentenced Christensen to a year in jail, however, with six months credit he will be out in six months after which his probation agent will have to rule on the suitability of any possible girlfriends.  He is also prohibited from making contact with his former girlfriend.  “He just creates more trouble for himself,” said Des Jardins who also banned Christensen from making use of any social networking sites on the Internet during his period of probation.

Christensen’s bail jumping charge stemmed from an attempt to renew contact with the girl through her social networking page when he was out on bond.  On May 26, Christensen stole a gun from his foster parents’ residence, stole their car and fled the state with his 16-year-old girlfriend, claiming through a blog posting that they intended to get married.

Under the circumstances, the judge's imposition of this novel condition of probation seems to make some sense.  But it also would likely be pretty hard to enforce (what qualifies as "dating" these days) and perhaps raises some constitutional questions.  But the story sure makes for good blog fodder (and perhaps good comments) during an otherwise slow holiday week.

December 21, 2009 at 03:50 PM | Permalink

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Comments

Jerry once said that Kramer falls "ass-backwards" into money and "has sex without dating..."

To the defendant, this is potentially a blessing in disguise.

Posted by: Stanley Feldman | Dec 21, 2009 4:17:52 PM

Doug: You have raised an issue that I have taken an interest in as a result of novel conditions imposed on me, as a former attorney, in my own case.One condition is that I may not contact the U.S. Attorney's Office except upon leave of the Court! This condition is quite peculiar, since I am serving my Supervised Release in a District different than the one where I was tried and convicted. I am debating whether it is even worth litigating the issue, but I doubt that it satisfies the requirements of 18 U.S.C. 3583(d) or 3553(a)(1) and(a)(2)(B)&(C). Those sections of Title 18 provide that such conditions may "involve no greater deprivation if liberty than is reasonably necessary to achieve the identified purposes of supervised release."

In the last two years, there have been two opinions where Federal Circuit Courts have struck down conditions of Supervised Release (albeit under Federal, not state law, as in the case you describe above).
In United States v. Woods, 547 F.3d 515 (5th Cir.2008), the Court vacated the District Judge's condition of Supervised Release that the female defendant (convicted of distributing crack cocaine) could not during the 3 year term of supervision reside with anyone to whom she was not ceremonially married or related by blood. The Court found this condition overly broad and involving a greater deprivation of the defendant's liberty than was reasonably necessary to achieve the legitimate purposes of supervision.

In United States v. Riley, 576 F.3d 1046 (9th Cir.2009), the Circuit Court vacated a condition of Supervised Release imposed by the District Court that the defendant (convicted of possession of child pornography) could not use a computer to access any material relating to minors. Defendant earned his living as a computer analyst/technical engineer. The Government conceded on appeal that the condition was overly broad, because it did not limit the information defedant could access to child pornography.

These cases are in my view part of an emerging trend to reign in the Government, Probation Officers and the District Judges, which have not been paying attention to the statutory and Constitutional limitations on their ability to impose conditions on defendants during Supervised Release. Most defendants lack sufficient education about the law to contest improper conditions, and few attorneys have been willing to fight for their clients over conditions of Supervised Release. At sentencing, the attorneys are more focused on the amount of time the defendant will spend behind bars and/or restitution issues. Defense counsel pay little attention to the proposed Special Conditions of Supervised Release the defendant must follow upon his or her release from prison.

Posted by: Jim gormley | Dec 21, 2009 4:34:44 PM

So, basically the court has forced a 19 year old to only do one night stands. I'm sure he'll really be feeling the pain.

Posted by: Res ipsa | Dec 21, 2009 5:01:46 PM

"as a former attorney, in my own case" For some reason, I stopped reading there.

But, what I wonder is what constitutes a "date." Is hanging out a date? Or sex without pretending to be interested in her "career" a date?

Posted by: S.cotus | Dec 21, 2009 6:06:36 PM

article: "his probation agent will have to rule on the suitability of any possible girlfriends"

me: I'm not sure exactly where "meeting with his probation agent" ranks on the list of "least romantic dates" but it is definitely on there.

Posted by: virginia | Dec 21, 2009 6:23:51 PM

Though this sounds like a "problem-solving" court dispute.

Luckily, he has an absolute defense in claiming that it was "just sex."

Posted by: S.cotus | Dec 21, 2009 8:02:19 PM

No dating with the opposite sex. The judge is pushing the guy into same sex dating. Quite an agenda.
FWhat is wrong with: no driving a nonn farm vehicle?

When the probation is up, I am betting that the couple gets married. It would be fiting if they stole the judge's car and eloped to Reno.

Too bad scrotus stopped reading. The cases cied by Gormely are interesting.

Posted by: mpb | Dec 22, 2009 4:57:05 AM

This condition is not at all uncommon in Ohio, especially with sex offenders. In fact, the offender may have to seek permission from the parole officer to have sex. So, no one night stands either.

Posted by: PD | Dec 22, 2009 7:51:24 AM

The PA Board of Probation and Parole has a "domestic violence disclosure" for domestic violence parolees and probationers (Appendix F): you need to notify your PO of "intimate partner relationships". The PO then calls you girlfriend and tells them what you've been convicted of.

Granted, "notify" your PO is much different from "ask permission from your PO."

Posted by: Crakow | Dec 22, 2009 12:22:13 PM

crakow: "The PO then calls you girlfriend and tells them what you've been convicted of."

me: why not just have a searchable on-line registry of domestic abusers?

Posted by: virginia | Dec 23, 2009 10:56:28 AM

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