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October 18, 2012

Intriguing Seventh Circuit discussion of onerous terms of supervised release

The Seventh Circuit today has issued in US v. Quinn, No. 12-2260 (7th Cir. Oct. 18, 2012) (available here), a very short and very interesting opinion discussing supervised release terms. Here is an excerpt:

Quinn asked the judge to choose a ten-year term of supervised release. He submitted a forensic psychologist’s evaluation, which concluded that he has a lowerthan- normal risk of recidivism.  He also submitted the testimony that two psychologists (Michael Seto and Richard Wollert) recently had presented to the Sentencing Commission regarding the recidivism rate for persons convicted of child-pornography offenses....  [But] the district judge did not discuss either the length of supervision or the terms that Quinn would be required to follow while under supervision.

The prosecutor has confessed error, and we agree with the prosecutor’s conclusion that a district judge must explain important decisions such as the one at issue here. On remand the judge should consider not only how Quinn’s arguments about recidivism affect the appropriate length of supervised release, but also the interaction between the length and the terms of supervised release.  The more onerous the terms, the shorter the period should be.  One term of Quinn’s supervised release prevents contact with most minors without advance approval.  Quinn has a young child, whom he has never been accused of abusing.  Putting the parent-child relationship under governmental supervision for long periods (under this judgment, until the son turns 18) requires strong justification.

Our research has turned up only a few decisions that discuss the relation between the terms and length of supervised release.  The third circuit has observed that the more onerous the term, the greater the justification required — and that a term can become onerous because of its duration as well as its content.... Rules that allow public officials to regulate family life likewise call for special justification, and lifetime regulatory power is hard to support when the defendant has not been convicted of crimes against his family or other relatives.  Other terms of Quinn’s supervised release also may require strong justification when extended for a lifetime.

Although district judges can reduce the length of supervised release, or modify its terms, at any time, 18 U.S.C. §3583(e) — an opportunity that may lead a judge to think that uncertainties at the time of sentencing should be resolved in favor of a long (but reducible) period — still this is a subject that requires an explicit decision by the judge after considering the defendant’s arguments.  The judge also should consider the possibility of setting sunset dates for some of the more onerous terms, so that Quinn can regain more control of his own activities without needing a public official’s advance approval, while enough supervision remains to allow intervention should Quinn relapse.

October 18, 2012 at 12:06 PM | Permalink

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Comments

LOL can we all say "No shit"

Posted by: rodsmith | Oct 18, 2012 2:52:28 PM

opinion: "Putting the parent-child relationship under governmental supervision for long periods (under this judgment, until the son turns 18) requires strong justification"

me: the fact that the defendant is an icky perv who was convicted of possession of child pornography is a strong justification.

Posted by: Erika | Oct 18, 2012 5:01:47 PM

only one around here who seems to need lifetime supervison for thier own protection is you erika.

Long time no see. Welcome back

Posted by: rodsmith | Oct 18, 2012 5:34:31 PM

This case is about risk. What is the probability that this person will commit another crime, and if so, what kind of crime? No one, including judges can answer this question today about how dangerous a given person will be ten years from now. Risk changes for the better or worse. The best that can be done is to predict what will happen for a relatively short time, say a year or two.

Risk determination is an executive function, not judicial. A decision about the amount of risk that is acceptable is a policy question. These determinations should be made by boards that have some training in that subject, including advanced statistics, and policy making authority. Judges should not be asked to fulfill this function. In fact they should recuse themselves from making sentencing decisions that require this expertise.

Posted by: Tom McGee | Oct 18, 2012 5:46:46 PM

Virginia: the fact that the defendant is an icky perv who was convicted of possession of child pornography is a strong justification

Possession alone is not evidence enough that he'd sexually abuse his child, Icky Virg.

"lifetime regulatory power is hard to support when the defendant has not been convicted of crimes against his family or other relatives"

Posted by: Huh? | Oct 18, 2012 9:54:25 PM

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