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May 29, 2014

Terrific Posnerian disquisition on supervised release challenges and "best practices"

The always-interesting Judge Richard Posner has another one of his always-interesting discussions of federal sentencing policies and practices today on the Seventh Circuit's opinion in US v. Siegel, No. 13-1633 (7th Cir. May 29, 2014) (available here). The topic du jour is federal supervised release, and the full Siegel opinion is a must-read for all who work within the federal criminal justice system. And this paragraph from the start of the opinion and then a later passage highlight why:

We have consolidated these two criminal appeals because (with an exception discussed at the end of the opinion) both challenge only conditions of supervised release, imposed by the district court, and because the challenges raise closely related issues concerning such conditions. The issues ramify far beyond these two cases, however, which exemplify common but largely unresolved problems in the imposition of such conditions as a part of federal criminal sentencing....

In summary, these cases must be remanded for reconsideration of the conditions of supervised release imposed on these defendants that we have raised questions about. And for the future we recommend the following “best practices” to sentencing judges asked to impose (or minded on their own to impose) conditions of supervised release:

1. Require the probation service to communicate its recommendations for conditions of supervised release to defense counsel at least two weeks before the sentencing hearing.

2. Make an independent judgment (as required in fact by 18 U.S.C. § 3553(a)) of the appropriateness of the recommended conditions—independent, that is, of agreement between prosecutor and defense counsel (and defendant) on the conditions, or of the failure of defense counsel to object to the conditions recommended by the probation service.

3. Determine appropriateness with reference to the particular conduct, character, etc., of the defendant, rather than on the basis of loose generalizations about the defendant’s crime and criminal history, and where possible with reference also to the relevant criminological literature.

4. Make sure that each condition imposed is simply worded, bearing in mind that, with rare exceptions, neither the defendant nor the probation officer is a lawyer and that when released from prison the defendant will not have a lawyer to consult.

5. Require that on the eve of his release from prison, the defendant attend a brief hearing before the sentencing judge (or his successor) in order to be reminded of the conditions of supervised release. That would also be a proper occasion for the judge to consider whether to modify one or more of the conditions in light of any changed circumstances brought about by the defendant’s experiences in prison.

May 29, 2014 at 01:40 PM | Permalink


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These are always good best practices. If I had one I'd suggest as an "always do," I really like that last one. I think that'll be a huge help. Likewise, simple wording is nice. Such substantial advance notice on a recommendation seems unlikely, depending on the jurisdiction and its workload, but I do agree that some notice is nice. In reality, the defense has to prepare for the worst case scenario anyway (in case the judge rejects the recommendation of probation), so only a couple days is probably necessary. 2 and 3 strike me as platitudes. They're nice in theory, but I don't expect a substantial change from that.

Posted by: Erik M | May 29, 2014 2:08:34 PM

Another huge section of the Federal system that needs fixing, big time.

Posted by: Midwest Guy | May 29, 2014 4:34:42 PM

As a former statewide parole administrator, I would add, or perhaps summarize as follows:

Probation and parole conditions are strategies. Clearly state what each condition is intended to accomplish? How is that condition related to the problem?

Posted by: Tom McGee | May 29, 2014 5:18:17 PM

No, no, no, it'll never happen because it exhibits too much common sense and would probably contribute to the elimination of a lot of 'dead wood' that supports the present legacy approach.

Posted by: Randy | May 29, 2014 5:58:46 PM

How about the most important component of the probation officers evaluation is the % of "clients" who successfully complete their probation.

Posted by: beth | May 29, 2014 9:25:20 PM

Judge Posner, it would appear, has been reading and cogitating on what he fairly regards as sloppiness and inefficiency with regard to supervised release conditions. Defendants regard supervised release as the equivalent of probation or parole, the most important point being that they can get put back in jail if they violate the conditions. My own experience is that probation office and judiciary in this district (EDKy) have taken what I have found to be reasonable, fair and common-sense approaches to modifying supervised release conditions that are showing to be counterproductive or impracticable for the defendant. This has almost always been done without involvement of either the U.S. Attorney's office or defense counsel; an order will simply come out modifying the terms.

Judge Posner's suggestion that a hearing be held just prior to the defendant's release makes a lot of sense, at least in some cases such as where there has been a long sentence served or in cases presenting special or unusual circumstances (which I can't define better). But in the run of cases it would not justify the costs or time expended.

A better practice for the majority of cases would be scheduling a status hearing some months (about 6 or so) after the defendant's release from custody. This has been done in a couple of cases of mine. At these hearings, the judge has reviewed the conditions and the defendant's progress and adjustment. But this has been done rarely (only two cases in my experience), and I'm not sure why the judges picked those two defendants, since they did not really explain why, although I can't think of any reason other than they deemed these defendants as having particular promise and that encouragement would be helpful to them, which it was. But six months after release would allow some consideration for post-release developments for the defendant.

Posted by: Robert L. Abell | May 30, 2014 10:57:17 AM

The key word here I think is "adjustment." What does that mean? To me it might mean adjusting to the transition from prison to freedom. In the military I think it's called debriefing. For some reason I think that is a psychological evaluation and maybe some treatment. The point being, you can let someone out of prison but that doesn't necessarily take the prison out of someone. Is this important? I would suggest it helps explain recidivism is usually in the first year after release, which would suggest the adjustment usually takes about a year.

Posted by: George | May 30, 2014 12:55:24 PM

A few thoughts. Posner is always a fun read, but this one strikes a balance between rhetoric and common sense. When recidivism rates are calculated based on re-arrests and returns to prison, and released federal inmates fit that category over half the time, making modest changes to how supervised release is administered could make a huge difference on recidivism.

While I don't think that most people on federal supervision return to prison based on mistakes because of ignorance of their release terms, there can certainly be some headway made by explaining those terms upon release (with a judge).

Further, revisiting terms of supervision after one year, or two and three years, more effectively transitions released inmates back to normal life with normal restrictions. A simple civil infraction or low-level misdemeanor that would incur a fine in normal circumstances will land a supervisee back behind bars. Removing technical conditions that aren't crimes for normal people (in a phased-out, time controlled way) could eliminate a significant amount of probationary violation hearings.

Hope is a big motivator. Knowing that restrictions while on supervision will ease up in x number of months would promote better adherence to more restrictive terms and eliminate many revocation hearings.

Just my two cents.

Posted by: Eric | Jun 18, 2014 9:15:01 AM

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