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September 5, 2012

Third Circuit requires more rigorous approach to supervised release conditions

The Third Circuit handed down a notable opinion today in US v. Murray, No. 11-3196 (3d Cir. Sept. 5, 2012) (available here), which effectively reviews a good bit of doctrine and procedure concerning the imposition of supervised release conditions. Here is how the opinion gets started:

In 2004 in the District of New Jersey, Charles Murray pleaded guilty to traveling interstate to engage in illicit sexual conduct with a minor.  Later that same year, in a separate case in the Eastern District of Pennsylvania, he pleaded guilty to possession of child pornography.  For these offenses, he was sentenced to an aggregate term of 95 months' imprisonment, to be followed by concurrent three-year terms of supervised release. Both of Murray's sentencing judges imposed upon him various special conditions of supervised release that, for example, require him to register as a sex offender and to submit to unannounced searches of his computer.

After Murray was released from prison in July 2010, he moved to the Western District of Pennsylvania.  That District thus assumed jurisdiction over him for the remainder of his term of supervised release.  Though Murray had not violated his existing supervised release conditions, the Probation Office sought to modify them to bring them in line with the conditions of release that are typically used in the Western District.  Some of the Probation Office's proposed conditions were duplicative of those already mandated by the Eastern District of Pennsylvania and District of New Jersey, but others were new.  The District Court granted the Probation Office's request and imposed several new, more stringent conditions on Murray.  Murray now appeals.  For the reasons that follow, we will remand this case to the District Court.

This opinion struck me as blog-worthy because litigation over supervised release conditions for sex offenders is sure to keep increasing in the years ahead, and because the Third Circuit panel was forced to remand largely because the district court was so ready to impose additional onerous conditions on the defendant without even bothering to make the necessary findings.  For these reasons, I cannot help but wonder if this Murray ruling represents only the tip of a problematic supervised release iceberg.

September 5, 2012 at 03:55 PM | Permalink


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Doug, although I had served time in Federal prison only for white collar crimes, not for any sex or porn crimes, I experienced this problem in the Eastern District of Kentucky a few years ago. My Supervised Release ended on September 5, 2010, two years ago. Prior to going to prison, I practiced law in Atlanta for many years. My criminal convictions, however, were from the Southern District of West Virginia, where the client who got me into all that trouble lived. I was released into the Eastern District of Kentucky, where I grew up and where my family has lived for 155 years. My probation officer wanted me to waive my right to a hearing before the District Judge and consent to the modification of my terms of Supervised Release. Some proposed changes were to conform to standard conditions in the E.D.Ky. that were different than those from the S.D.W.Va. For example, my Order of Judgment and Commitment provided that I could acquire new credit cards as long as I was current on making my restitution payments (and I was current). The standard conditions in the E.D.Ky. provide that a Supervisee who is paying restitution may not obtain new credit of any kind without the permission of his Probation Officer. Others were additional terms. For example, they wanted to bar me from working as a paralegal for an attorney (the job I then held), because they were concerned that I might engage in the unauthorized practice of law (which I had not done). The Probation Officer and the U.S. Attorney's Office also wanted to bar me from entering the Federal Courthouse, where I frequently filed papers and reviewed files for the attorney I worked for. It seems that they (including the U.S. Marshals) are uncomfortable having felon Supervisees regularly coming and going from the Federal courthouse, although I have no record of violence in or out of prison. They were not happy that I insisted on representing myself pro se, and refused to hire counsel. Eventually, my probation officer referred me to an AUSA in Lexington, who had previous worked as a Probation Officer. He invited me to his office, where we discussed these issues for 2 hours. Afterwards, the AUSA's boss, who was head of the Criminal Section, learned that the AUSA had met with me pro se, in violation of DOJ policy. His boss almost fired him and took over my case, personally. His view was that the U.S. Attorney's Office does not "negotiate" terms of Supervised Release, it "imposes" them. When I would not agree to waive my right to a hearing and consent to the imposition of his proposed terms, he filed a Motion with the Court, which had me taken into custody and sent to FMC - Lexington for 4 1/2 months for a psychiatric exam! The forensic psychologist said that in 17 years of working for the Government, she had never seen a Supervisee taken into custody and sent to the BOP for a psych exam, without either new criminal charges pending or the Government seeking to revoke his term of Supervised Release. For 4 1/2 months, I was held in solitary confinement in The Hole, locked down 23 hours per day in an 8' x 12" cell. As a result of this event, I lost my job and fell behind in all of my financial obligations. My cell phone was disconnected and I defaulted on my credit card, as I could not even make the minimum monthly payment from prison. After the forensic psychologist rendered her report that I am sane and normal (albeit with a very high I.Q.), I negotiated lesser changes to my terms of Supervised Release before the Judge and was released from the Courtroom. When I met with my Probation Officer afterwards, he advised that he felt I had been treated very unfairly by the U.S. Attorney's Office, and that he has lobbied against what was done to me, but was over-ruled by the head of the Criminal Section. I wonder what Main Justice in Washington, D.C. would think of these tactics? Another issue I identified in the way the current scheme is operated is a separation of powers issue. Probation Officers work for the Court, in the Judicial Branch of Government, but they get their legal advice from the U.S. Attorney's Office, in the Executive Branch of Government. I see this as a serious problem, but it never seems to have been litigated. Doug, I think you have identified the tip of a huge iceberg.

Posted by: Jim Gormley | Sep 5, 2012 4:34:41 PM

well jim if i'd been you i'd have figured i had legal grounds to shoot that two-faced son of a bitch DA dead on the court hours launn with a big note around his neck.

and that would have been BEFORE he ILLEGALLY locked me up! For that i'd have gone after the judge and anyone else involved AND their families!

Would show them a real West Virginia BLOOD FEUD!

Posted by: rodsmith | Sep 5, 2012 6:00:03 PM

Mr. Gormley, I , too, spent time a LFMC and time in the hole there. Strange place. Supervised Release is a little understood continuation of incarceration (did three years of it) and should be litigated for clarity's sake. However, few will as they are too broke and too without "everything" to do so. The power as opposed to the authority of Probation Officers is unconscionable but few know of it and fewer still care. Glad to hear you are out, again, and , hopefully doing well.

Posted by: tim rudisill | Sep 6, 2012 2:23:25 PM

Tim Rudisill: Thanks for your kind comments. I believe that I have previously read the appellate opinion in your criminal case. My Supervised Release ended September 5, 2010, and I remain free in Lexington, trying to rebuild some semblance of a life. I agree with you that few except those directly involved in it (probation officers, prosecutors, criminal defense lawyers and supervisees) have any real understanding of what occurs during Supervised Release, and the raw power probation officers have over the lives of those they supervise. One of my pet peeves against it is that while Probation Officers have extraordinary legal powers, but they are not educated or trained as lawyers, so they frequently abuse their authority or misunderstand simple legal matters, such as divorce, child custody and visiatation. My probatin officers did not like the fact that I had been a practicing attorney for many years prior to going to prison, so I knew far more about the law than they did. My first problem occurred when a Supervisrory Probation Officer revoked my Travel Permit to Atlanta 3 days after my Probation Officer had issued it, because of concerns that I would try to contact my ex-wife and daughter while visiting there. Much to his surprise, I filed an Emergency Motion to Reinstate the Travel Permit with the U.S. District Judge in Huntington, West Virginia, who had tried my case. At that time, jurisdiction over my case had not yet been formally transferred to the E.D.Ky. One of the purposes of my trip to Atlanta was to meet with an attorney to discuss filing a Petition for Visitation with my young daughter,who I had not seen in 8 years. The Judge had his law clerk confirm my appointment with the attorney's office, and then he over-ruled the Supervisory Probation Officer in Lexington and ordered him to reinstate my Travel Permit to Atlanta. He later told me that in 18 years as a U.S. Probation Officer, he had never previously had that done to him by a pro se Supervisee. Another problem occurred when my Probaton Officer came to the law firm where I was working as a paralegal, to tell me that I could not contact my daughter because my parental rights had allegedly been terminated. I explained to her that she was wrong, that because my daughter was only 17 months old at the time of my divorce and I was then incarcerated at Petersburg, Virginia (900 miles from Atlanta), the divorce judge simply did not award me any visitation rights; she did not terminate my parental rights. I offered to show the Probation Officer a copy of the divorce decree, and let her read it herself. She refused to read it and stormed out of my office. Two days later, after having researched the matter, the Probation Officer telephoned my office to appologize for having "misunderstood". This issue (and many others) would not have occurred if probation officers were required to be law school graduates. Ultimately, after I had made a few trips to Atlanta (without incident), my probation officer asked for a condition of supervised release prohibiting me from making further trips to Atlanta until after my Supervised Release ended.

Posted by: Jim Gormley | Sep 7, 2012 1:21:15 PM

Thanks again and looking forward for your post on making more.

Posted by: online task list | Sep 11, 2012 9:55:28 AM

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