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July 21, 2015

Eighth Circuit rejects "safe sex" special condition of supervised release

Thanks to a number of kind readers, I received lots of notice of an Eighth Circuit opinion today that understandably has already received lots of attention.  These excerpts from US v. Harris, No. 14-2269 (8th Cir. July 21, 2015) (available here), highlights why: 

At sentencing, the district court determined that Harris was an armed career criminal under 18 U.S.C. § 924(e), and sentenced him to the statutory minimum of 180 months’ imprisonment. The court, on its own initiative, also imposed a novel special condition of supervised release that “there be no unprotected sex activities without probation office approval during the period of supervised release.”  In a later written order and judgment, the court attempted to modify the special condition to say that Harris “shall use contraceptives before engaging in sexual activity that may otherwise cause pregnancy unless such use would violate his religious scruples or is expressly rejected by his sexual partner.” ...

The district court observed that Harris had fathered ten children out of wedlock with seven different women and declared that Harris’s conduct was “creating a very serious social problem” that was “more serious than a lot of the things that we do deal with on conditions ofsupervised release.”  During the hearing, the court again raised a “social problem of apparently a great deal of unprotected sex.”...

[T]he special condition as pronounced is even broader than the novel restriction on fathering children that the court seemed to contemplate during the hearing.  By restricting “unprotected sex activities,” without limitation, the condition purports to regulate conduct that could not result in pregnancy.  The condition is not even reasonably related to the purposes that motivated the condition.

The special condition also is not reasonably related to the statutory factors set forth in § 3583(d).  As in United States v. Smith, 972 F.2d 960 (8th Cir. 1992), where this court set aside a special condition attempting to regulate a defendant’s fathering of children while on supervised release, the condition here is not related to the nature and circumstances of Harris’s offense.  The court did not find that Harris’s sexual activity was related to his unlawful possession of a firearm.  Nor did the district court explain how restrictions on Harris’s sexual activity would deter Harris from future criminal conduct, protect the public from future crimes by Harris, or assist in Harris’s training, medical care, or correctional treatment.  For similar reasons, the condition impermissibly involves a greater deprivation of liberty than is reasonably necessary to afford adequate deterrence, protect the public from future crimes, and provide the defendant with needed training, care, or treatment. As in Smith, the district court sought to address a perceived social problem that does not have the required nexus to factors that guide sentencing in a federal criminal case.

We conclude that the district court exceeded its authority under § 3583(d) when it imposed the special condition of supervised release at sentencing.

July 21, 2015 at 10:35 PM | Permalink

Comments

The lawyer hierarchy will not tolerate any interference with the rapid spawning of future criminals. Future clients of big government and producers of make work jobs for the lawyer profession.

Posted by: Supremacy Claus | Jul 22, 2015 12:58:45 AM

The lawyer hierarchy will not tolerate any interference with the rapid spawning of future criminals. Future clients of big government and producers of make work jobs for the lawyer profession.

Posted by: Supremacy Claus | Jul 22, 2015 12:58:45 AM

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