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July 8, 2009

Are quirky supervised release conditions getting out of hand?

A little unpublished per curiam opinion from the Eighth Circuit today in US v. Lacey, No. 07-2436 (8th Cir. July 8, 2009) (available here), prompts the question in the title of this post.   In Lacey, the defendant  "pleaded guilty to possession of child pornography ... and the district court sentenced him within the unobjected-to Guidelines range to 115 months in prison and 15 years of supervised release."  As the brief opinion reveals, this sentence included a "special supervised-release condition banning [Lacey] from gambling or entering any casino upon being released." 

The opinion does not explain how or why this quirky condition was added to the defendant's term of supervised release.  The Laceyopinion merely states that though "this condition may have been overbroad or unrelated to Lacey’s circumstances, we find its imposition did not amount to plain error requiring reversal."  Also, the opinion adds this cite: "United States v. Silvious, 512 F.3d 364, 371 (7th Cir. 2008) (recognizing as overbroad and arbitrary certain special conditions of supervised release, including ban on gambling where there was no evidence that defendant had gambling problem, but finding no plain error because there was no showing that conditions affected defendant’s substantial rights, and conditions were readily modifiable at defendant’s request)."

The Lacey case leads me to these (and other) questions:

This inquiring blogger not only wants to know about this case, but also whether quirky supervised release conditions present a federal sentencing issue worthy of greater attention and concern.

July 8, 2009 at 05:56 PM | Permalink


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pleaded guilty to possession of child pornography

Ironically, you have to be 18 or 21 to be on the floor of casinos.

Posted by: . | Jul 8, 2009 6:33:38 PM

As a sentencing guru, can you enlighten us as to whether quirky sentencing was the original target of the word "unusual" in the 1688 Bill of Rights, subsequently copied into the Eighth Amendment?

Posted by: Kent Scheidegger | Jul 8, 2009 7:07:04 PM

As you likely know, Kent, the backstory of the Eighth Amendment is shrouded in lots of mystery and uncertainty. That said, and with a commitment to textualism more than originalism, I do think these gambling restrictions seem pretty darn unusual. I am not so sure they are also cruel, however. Indeed, it may well be beneficent to prevent someone from being able to gamble (though if the prohibition extends to preventing involvement in fantasy baseball, I think cruelty could be asserted).

Posted by: Doug B. | Jul 8, 2009 8:18:36 PM

The problem with these silly restrictions is that they breed disrespect for the law. No one in their right mind would, years later, reincarcerate someone for playing poker.

Posted by: federalist | Jul 8, 2009 9:44:22 PM

Would being prohibited from participating in a karaoke contest count as an unusual punishment? One of our judges made that one of the conditions for a delayed mittimus.

Posted by: John Neff | Jul 8, 2009 10:12:11 PM

I personally have one of the most unusual conditions of Supervised Release thatyou may ever hear of. My supervision was transferred to the Eastern District of Kentucky from the Southern District of West Virginia, where I was tried and convicted in 1999. The new Judge and AUSA added new terms to those imposed at sentencing, including that I cannot contact the U.S. Attorney's Office for the Eastern District of Kentucky, except on leave of the Court!

Posted by: Jim Gormley | Jul 9, 2009 12:03:22 AM

Asst. Fed. P. Defender here. Gaming restrictions are very common here in the District of Nevada. They can be a bit onerous as many common urban amenities are ensconced in casinoes, e.g., movie theatres, fine dining, dance clubs.

That said, gambling addiction is one of the more debilitating. Even a drug addict will quit spending money once an adequate supply is built up. Not to be all puritanical.

Posted by: The Crux | Jul 9, 2009 2:10:07 AM

No one in their right mind would, years later, reincarcerate someone for playing poker.

I suspect that the same genius who proposed that restriction would be perfectly happy with reincarcerating the offender who violated it.

Posted by: Marc Shepherd | Jul 9, 2009 9:16:57 AM

I have spoken with two individuals who had unrelated convictions but had the same restriction imposed for post release. Neither can go into gambling establishments during probation. One of them was convicted on drug charges (8th Circuit) and during the investigation he indicated that during the day he would go gamble with the drug money (which would make it appear that he earned money gambling, but he did very well at it); however, they did determine he did not have a gambling problem per se. The other one was convicted on felon in possession charges and mail fraud (7th Circuit). There was never any indication that he frequented any gambling establishments during the course of this conduct but he did enjoy going once in awhile, which may have been from information provided by third parties. I can find no justification for it except my usual "because they can."

Posted by: Shelly T | Jul 9, 2009 9:45:14 AM

Does a 25-year sentence (10 in a cell and 15 of ritual hassling)for mere possession strike no one else here as cruel?

Posted by: John K | Jul 9, 2009 10:06:24 AM

Does a 25-year sentence (10 in a cell and 15 of ritual hassling) for mere possession strike no one else here as cruel?

Not in an Eighth Amendment sense. It does strike me as a poor allocation of resources and bad policy. However, the opinion is extremely sparse, and we don’t know whether there are additional aggravating factors.

Posted by: Marc Shepherd | Jul 9, 2009 10:32:05 AM

These overly borad supervised release restrictions that have nothing to do with teh crime of conviction can be successfuly attacked. The limitations on the Court's ability to impose supervised release restrictions are set forth in 18 U.S.C. section 3583(d). See, e.g., United States v. Woods, -- F.3d --, 2008 WL 4717108 (5th Cir.2008). In Woods, the female defendant was convicted of possession with intent to distribute crack cocaine and conduct causing great bodily injury to another with intent to retaliate. At sentencing, the District Judge imposed a Supervised Release condition specifying that the defendant could not during the termm of supervised release reside with any person to whom she was not related by blood or ceremonial marraige. The Fifth Circuit vacated the sentence (but affirmed the rest of the sentence) and remanded for re-sentencing, finding that the District Judge had abused his discretion and that condition was overbroad and involved a greater deprivation than was reasonably necessary to achieve the purposes of supervised release. Neither the Probation Officers nor the Judges seem to want to recognize or accept that there are limitations on the scope of their power and authority to impose conditions of Supervised Release.

Posted by: Jim Gormley | Jul 9, 2009 3:20:43 PM

How about a more serious discussion about what kinds of restrictive conditions (geographic, associational, etc) actually help reduce recidivism? That's the kind of issue that everyone should be focused on and is an area in which there needs to be more research and cooperative discussion among all intersted groups (defense, prosecution, probation courts). Prosecutor

Posted by: john | Jul 11, 2009 5:48:38 AM

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