Probation and supervised release under United States federal law
Encyclopedia
United States federal probation and supervised release are imposed at sentencing. The difference between probation and supervised release is that the former is imposed as a substitute for imprisonment, or in addition to home detention, while the latter is imposed in addition to imprisonment. Probation and supervised release are both administered by United States Probation. Federal probation has existed since 1909, while supervised release has only existed since 1987, when it replaced federal parole as a means for imposing supervision on releasees from prison.
Some conditions of probation and supervised release, such as compliance with drug test
s, are made mandatory by statute, while others are optional. Some terms are recommended by the United States Sentencing Guidelines for specific situations; for instance, a requirement of participation in a mental health program is recommended when "the court has reason to believe that the defendant is in need of psychological or psychiatric treatment." The judge has broad discretion in deciding what optional conditions to impose, as long as those conditions are reasonably related to the nature and circumstances of the offense and the history and characteristics of the defendant, the need for the sentence imposed to afford adequate deterrence to criminal conduct, the need to protect the public from further crimes of the defendant, the need to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; and involve no greater deprivation of liberty than is reasonably necessary for these purposes and are consistent with any pertinent policy statements issued by the United States Sentencing Commission
. The possible length of supervision is specified by law, with recommendations for particular situations being provided by the sentencing guidelines. The length and conditions of supervision can be modified by the court after sentencing, although the defendant has a right to a hearing if changes are being proposed that would adversely affect him.
Violations of conditions of probation or supervised release can result in said revocations being reported to the court and a revocation hearing being held. In such hearings, the defendant has the right to be informed of the alleged violation, to retain counsel or to request that counsel be appointed, and to have a probable cause hearing. The defendant has the burden of establishing that if released pending further proceedings, he will not flee or pose a danger to any other person or the community. The law mandates revocation for some violations, such as possession of a controlled substance, possession of a firearm
, or refusal to take a drug test. The statute specifies the possible consequences of revocation, and the sentencing guidelines establish grades of violations and a revocation table recommending various terms of imprisonment depending on the seriousness of the violation and the defendant's criminal history when he was originally sentenced.
For example, suppose a defendant is convicted of a Class D felony and is sentenced to 16 months in prison and 3 years of supervised release. He serves his prison sentence and a few months on supervised release, but then is caught violating his terms of release, and the court revokes his supervised release and sentences him to 10 months in prison and a new 3-year supervised release term. Then he violates again, and is sentenced to another 10 months in prison and another 3-year supervised release term. Then he violates again, and is sentenced to 4 months in prison. This last time, he cannot be sentenced to a new term of supervised release, because he has already been sentenced to the maximum prison term available (24 months) for supervised release violations.
unless the offense is a Class A or Class B felony and the defendant is an individual; unless the offense is an offense for which probation has been expressly precluded; and unless the defendant is sentenced at the same time to a term of imprisonment for the same or a different offense that is not a petty crime. The exception is that a defendant convicted of a Class A or B felony can be granted probation if he renders substantial assistance to authorities. For first-time domestic violence
offenders, probation is mandatory if the convicted defendant is not sentenced to a term of imprisonment. The U.S. Sentencing Commission is authorized to further restriction probation. Probation is authorized by the sentencing guidelines if the applicable guideline range is in Zone A of the Sentencing Table; or if the applicable guideline range is in Zone B of the Sentencing Table and the court imposes a condition or combination of conditions requiring intermittent confinement, community confinement, or home detention as provided in subsection (c)(3) of §5C1.1 (Imposition of a Term of Imprisonment). In 1986, the law was made somewhat harsher when Congress eliminated that provision that "The liability of a defendant for any unexecuted fine or other punishment imposed as to which probation is granted shall be fully discharged by the fulfillment of the terms and conditions of probation."
Under the earlier probation statute (repealed 1987), a defendant convicted of violating a statute which provided for a mandatory minimum sentence could still be placed on probation, with his sentence suspended, or could be made eligible for immediate parole. Since United States v. Booker
, the sentencing guidelines have become advisory but courts are nonetheless unable to impose probation in lieu of a mandatory minimum imposed by statute.
The grant of probation may be made on the court's own motion. Because the power of pardon
ing offenders is vested in the President of the United States
only, probation is not considered a pardon of any kind, but rather an authorized form of punishment of mild nature, and unlike a pardon, it cannot be refused by the convicted person. Federal courts have an inherent power to reduce a sentence, but without Congressional authorization, a federal court has no power to suspend the execution of a sentence which it has imposed or to place the defendant on probation. When this was first announced by the Supreme Court in 1916 in the case of Ex Parte United States, an abrupt halt was brought to a practice which, by then, had become widespread in the federal system, and which had existed for more than 70 years. A sentence for a period of one year with an order that, after the defendant had served three months of his sentence, probation was to be granted on the condition that the defendant abide by laws, was void for want of jurisdiction, since it was in effect an exercise of pardoning power.
Probation is an act of grace and the defendant does not gain a vested right in probationary status once a probationary sentence is imposed. It has been ruled that the probation power does not unconstitutionally encroach on the pardon power of the President.
Since probation is a form of punishment, once the sentence of probation has commenced, the court will run afoul of the double jeopardy
clause if it increases the penalty. Probation's primary objective is to protect society by rehabilitating the offender. A person placed on probation is considered a probationer of the court as a whole, and not that of a particular judge thereof. When a defendant is placed on probation, he expressly agrees to be subject to supervision appropriate to a probationer, to avoid the more onerous regimen of a prisoner; accordingly, the defendant retains those rights of an ordinary citizen that are compatible with probationary status, although certain rights, such as the right against self-incrimination
, are impaired. There is no requirement that probation must be granted on a specified showing. Probation is considered a privilege and not a right. The action of a district court in refusing to grant probation is not reviewable on appeal except possibly for arbitrary or capricious action on the part of the District Court amounting to abuse of discretion.
The type of person for whom the benefit of probation was intended is a young first offender. A trial court cannot deny probation to a defendant on the sole ground that it has a standing policy of denying probation to those who stand trial instead of pleading guilty.
Probationary sentences that fall outside the U.S. Sentencing Guidelines can be appealed. An application for probation cannot be acted upon by the trial court after the defendant is taken into custody by the federal marshal to await transportation to the place at which sentence is to be served, since by that point the sentence has already begun to run. The District Court is without jurisdiction to modify its judgment during the pendency of an appeal, but it retains the power to modify, suspend, or otherwise deal with terms of probation. The court also cannot, by issuing a reservation in its judgment, confer upon itself the power to grant probation after the sentence has begun. However, the defendant's paying of a fine does not constitute partial execution of sentence such that it would defeat the court's power to grant probation.
A sentence of probation is considered a final judgment, but it can nonetheless be modified or revoked, corrected, or appealed and modified, pursuant to the applicable law and federal rules of criminal procedure.
A defendant can, however, be sentenced to prison on some indictments and be placed on probation for other indictments.
s of 1986 and 1988. These laws added an incapacitative "protection of the public" goal as a purpose to be served by supervised release, allowed revocation of supervised release, and made revocation mandatory for defendants who committed controlled substance violations.
Supervised release is recommended by the Guidelines for most offenders who are serving a prison sentence of more than a year. The court has power to supervise the conduct of the probationer not only during the period of probation but afterwards up to the time when the maximum sentence which could have been imposed would have expired. But the period of probation is not limited by the period of maximum sentence that might have been imposed. On the other hand, probation does not become a nullity if the period of probation was not specified in the sentence, since the probationary period is limited by the maximum term of the sentence.
The United States Sentencing Guidelines provide that the term of supervised release shall be at least three years but not more than five years for a defendant convicted of a Class A or B felony
; at least two years but not more than three years for a defendant convicted of a Class C or D felony; and one year for a defendant convicted of a Class E felony or a Class A misdemeanor. The U.S. Supreme Court ruled in 2000 that “[a] term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days.” It is not unheard of in child pornography
cases for the defendant to be placed on supervised release for the rest of his life. In 2007, the average length of a sentence of supervised release was 42 months.
By default, probation commences when the judge imposes sentence. However, the trial court has power to place the defendant on probation effective after a subsequent event, such as completion of service of sentence on another change.
The Sentencing Guidelines provide for three grades of violations. Grade A Violations are conduct constituting (A) a federal, state, or local offense punishable by a term of imprisonment exceeding one year that (i) is a crime of violence, (ii) is a controlled substance offense, or (iii) involves possession of a firearm or destructive device of a type described in 26 U.S.C. § 5845(a); or (B) any other federal, state, or local offense punishable by a term of imprisonment exceeding twenty years. Grade B Violations are conduct constituting any other federal, state, or local offense punishable by a term of imprisonment exceeding one year. Grade C Violations are conduct constituting (A) a federal, state, or local offense punishable by a term of imprisonment of one year or less; or (B) a violation of any other condition of supervision. The Guidelines state that the court "shall" revoke probation or supervised release upon a finding of a Grade A or B violation, and "may" revoke it upon a finding of a Grade C violation. The applicable guideline prison sentence for revocations is specified by a Revocation Table that takes into account the offender's Criminal History Category and the grade of the offense.
Most violations are technical violations, and the primary reason for technical violations is substance abuse. The supervised release revocation rate in 1990 was 67 percent. In 1992, 47 percent of supervised release cases were closed by violation, of which 72 percent were revoked for technical reasons not involving the commission of a new offense. By 1993, the rate had dropped to 42 percent, with about 69 percent of those revoked for technical reasons. The reason for the drop may have been that releasees who are in the early years of their term of supervised release are more likely to be revoked; when supervised release was first introduced, all of the releasees were in this high-risk category.
At first, most courts ruled that a sentence of imprisonment imposed upon revocation cannot be followed by an additional term of supervised release, unless the defendant is convicted of a new crime for which supervised release is an authorized punishment. However, this law was changed, and now states, "When a term of supervised release is revoked and the defendant is required to serve a term of imprisonment, the court may include a requirement that the defendant be placed on a term of supervised release after imprisonment. The length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release." The original had included a clause stating that the term of imprisonment had to be less than the maximum term of imprisonment authorized by in order for a term of supervised release to be available, but this led to perverse effects in that, for instance, if the maximum term of imprisonment was two years, a judge could sentence a defendant to two years less one day, and then be able to sentence him to a year of supervised release.
It was originally recommended by the Federal Courts Study Committee that the U.S. Parole Commission or a successor agency conduct hearings in supervised release cases, but this proposal was rejected by the Judicial Conference of the United States
, partly because the judges felt that the judicial officer who imposed the supervised release conditions would be best able to interpret those conditions in the way that was intended at sentencing. It was also deemed desirable that supervised release revocations be subject to the same procedural safeguards as probation revocations. The Judicial Conference also opposed mandatory drug testing and mandatory revocation of probation and supervised release, requirements imposed by the Violent Crime Control and Law Enforcement Act
.
The Federal Rules of Evidence
generally do not apply in their normal force to supervised release revocation proceedings. The holding of revocation hearings by videoconferencing
is not permitted because "virtual reality is rarely a substitute for actual presence and . . . watching an event on the screen remains less than the complete equivalent of actually attending it." Probationers need not be proven guilty beyond a reasonable doubt
of having committed a violation; a preponderance of the evidence suffices. In Johnson v. United States
, the court found that "Although such violations often lead to reimprisonment, the violative conduct need not be criminal and need only be found by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt." Hearsay
is also admissible in such hearings. The courts have not been inclined to extend the sweep of the Booker and Blakely v. Washington
decisions to supervised release. According to the Federal Public Defender, "In reality, there are very few full revocation proceedings. Most frequently, a deal is worked out that requires an admission of some of the charges, and an agreed-upon sentence."
Most federal appeals courts have ruled that a single positive urinalysis constitutes possession of a controlled substance warranting supervised release revocation, resulting in him being sentenced to a prison term of at least one-third the supervised release term, although it has been argued that the legislative history
indicates that Congress did not intend this interpretation. The federal government considers the use of medical cannabis
by probationers to be a violation. The court is not prohibited from considering the results of a drug test that shows presence of cocaine
metabolites in the defendant's urine, albeit a level that is below what the contract between the testing laboratory and the Administrative Office of United States Courts requires for a positive test.
The term of supervised release that is subject to revocation is the term originally imposed by the court, not the existing unserved term of supervised release. The courts are divided on whether, when imposing a new sentence after revocation, the court can consider the seriousness of the offense, since this is a factor that Congress deliberately omitted from the list applicable to revocation sentencing. More than one revocation of supervised release is permitted. The statute provides for aggregated, rather than per violation, statutory maximum terms of imprisonment for violations of supervised release.
While the court can adopt terms and conditions of probation recommended to it by an administrative agency of government, the court cannot delegate its power to fix terms and conditions of probation or to determine the parties aggrieved, the amounts to be paid, and the time and manner of payment The court must orally give the conditions of probation, and when there is a discrepancy between conditions given orally and conditions given in writing, the oral statements control (except in situations in which the conditions in question are standard conditions). If one condition of probation is void, it does not invalidate the sentence.
Failure to provide conditions does not render the probation order invalid.
within 15 days of release on probation and at least two periodic drug tests thereafter (as determined by the court) for use of a controlled substance, but the condition stated in this paragraph may be ameliorated or suspended by the court for any individual defendant if the defendant’s presentence report or other reliable information indicates a low risk of future substance abuse by the defendant; if a fine is imposed and has not been paid upon release to supervised release, shall adhere to an installment schedule to pay that fine; shall make restitution and pay the special assessment on convicted persons
; shall submit to the collection of a DNA sample from the defendant at the direction of the United States Probation Office if the collection of such a sample is authorized pursuant to section 3 of the DNA Analysis Backlog Elimination Act of 2000
. If the defendant fails a drug test, he may be detained pending verification of the test by gas chromatography/mass spectrometry
.
Offenders are generally required to submit a monthly supervision report within the first five days of the month to the U.S. Probation office. The report asks about employment; vehicles; finances (including bank accounts, past due debts, cash inflows and outflows, major expenditures, post office box
es, safe deposit box
es, and storage units); questionings by law enforcement; arrests; dispositions of charges; contacts with others who have criminal records; firearm possession and/or access; illegal drug use and/or possession; travel outside the probation district; special assessments, restitution, and fine balances and payments; community service
obligations and hours completed, missed, and remaining; and drug, alcohol, and mental health aftercare and any sessions missed. It is a class D felony to make a false statement on this report.
In a state in which the requirements of the Sex Offender Registration and Notification Act do not apply, a defendant convicted of a sexual offense as described in shall report the address where the defendant will reside and any subsequent change of residence to the probation officer responsible for supervision, and shall register as a sex offender in any State where the person resides, is employed, carries on a vocation, or is a student. In a state in which the requirements of Sex Offender Registration and Notification Act apply, a sex offender shall (i) register, and keep such registration current, where the offender resides, where the offender is an employee, and where the offender is a student, and for the initial registration, a sex offender also shall register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence; (ii) provide information required by ; and (iii) keep such registration current for the full registration period as set forth in ;
If the defendant is convicted for a domestic violence crime as defined in 18 U.S.C. § 3561(b) for the first time shall attend a public, private, or private non-profit offender rehabilitation program that has been approved by the court, in consultation with a State Coalition Against Domestic Violence or other appropriate experts, if an approved program is available within a 50-mile radius of the legal residence of the defendant.
The 2nd Circuit, in U.S. v. Myers, ruled that if the liberty interest at stake in a decision involving a condition of release is fundamental, a deprivation of that liberty is "reasonably necessary" only if the deprivation is narrowly tailored to serve a compelling government interest. Courts of appeals have consistently required district courts to set forth factual findings to justify special probation conditions. It is not enough that the required findings are implicit in the record. The District Court is required to give reasons on the record for imposition of special conditions of supervised release. A district court's failure to state its reasons for conditioning supervised release results at a minimum in a remand
.
The ban on associating with persons with felony convictions has been criticized on the grounds that some releasees may have family members who have criminal records or may live in a neighborhood where most of the residents have criminal records.
eliminated any requirement of reasonable suspicion
prior to a search of probationers' homes or persons.
of attempting to affect commerce by extortion from seeking or serving in elected public office was affirmed. A similar outcome occurred in a case in which the defendant had violated election law
s.
was not authorized by the former U.S. federal law. Also under that law, restitution was struck down where aggrieved parties were not identified and actual damages or loss caused were not evaluated with exactitude. The District Court is without power to order restitution of an amount greater than the actual loss caused by the offense for which conviction was had, regardless of a presentence report indicating a greater amount of total losses. The order to make restitution cannot extend to sums pertaining to crimes for which the defendant was neither indicted, tried, nor convicted. There seems to be a circuit split
as to whether a defendant can be ordered to repay money given by the government as part of a sting operation
. Under , sentencing courts are permitted to impose restitution as a condition of release to the extent agreed to by the government and defendant in a plea agreement.
right to avoid federal income taxes on religious grounds. Probationers are required to obey the law; tax resistance
is illegal; therefore, by syllogism, probationers cannot engage in tax resistance.
may be restricted if reasonably necessary to accomplish the essential needs of the state and public order. A condition of probation requiring the defendant to "associate only with law-abiding persons" is not invalid as unconstitutionally vague and overbroad where the evidence showed that the defendant, on some 40 occasions during a 4-year period, was seen with one or more individuals with criminal records. A condition of probation requiring a defendant convicted of narcotics and firearms offenses to stay away from his daughter was upheld. In that case, the court noted that the defendant's wife was his a convicted felon (indeed, she was his co-defendant) and that in the course of trying to contact his daughter, he might encounter his wife, in violation of his order not to have contact with felons. The court also noted that a condition of release need not be related to the specific offense; it is enough that it be related to the purposes of supervised release.
A requirement that a defendant who headed the "Pure American Freedom Party" and was convicted of possessing an unregistered firearm avoid associating with other skinhead
s and neo-Nazis was upheld. Similar conditions have been upheld in other cases involving firearms and explosives violations, including the case of James Ross, who passed out flyers for National Alliance, owners of Resistance Records
, the creators of the video game Ethnic Cleansing
. Likewise, a condition preventing a that a defendant convicted of unlawfully importing firearms into the United Kingdom from participating in any American Irish Republican movement, from belonging to any Irish organization, from participating in any Irish Catholic
organization, from visiting any Irish pubs, and from accepting employment that would directly or indirectly associate him with any Irish organization, was upheld. In the Smith case, a defendant convicted of unlawfully wearing a military uniform as part of an anti-war skit was ordered to "forego any association whatever with the Students for Democratic Society Organization," and to "Discontinue your association with the members of the Humanists group with which you violated the law." The appellate court upheld this condition, noting, "Smith could have rejected probation and elected prison. He chose to enjoy the benefits of probation; he must also endure its restrictions."
on the grounds that incidental restrictions of First Amendment rights to freedom of speech
and association are permissible if reasonably necessary to accomplish the essential needs of the state and public order. In the Arthur Porth
case, a condition of probation forbidding speaking or writing on the unconstitutionality of tax evasion
laws was struck down as an unnecessary restriction on freedom of expression, but a condition prohibiting advocacy of tax evasion was upheld as valid. A district court was deemed justified in imposing a condition of probation prohibiting a defendant with a history of prior child sex abuse from being at educational or recreational facilities where children congregate, but unjustified in prohibiting the defendant from being at such facilities where children do not congregate.
conviction could not be ordered to reveal to employers his incest conviction, because "an occupational restriction must be based on the offense of conviction." A condition ordering a defendant to notify his tax preparation
clients of his conviction for aiding and abetting preparation of false income tax
was struck down because the court did not make findings that the condition was reasonably necessary to protect the public and that it was the minimum occupational restriction needed to protect the public.
order as a condition of supervised release, the court cannot require the defendant to pay his child support obligations at a rate different than that established by the state court, because family relations are a traditional area of state concern.
is allowed because the defendant's ability to work full-time, leave the facility with permission and have visitors on weekends prevent it from being tantamount to imprisonment; according to the 11th Circuit, any deprivations of the defendant's liberty are in accordance with the punitive deterrent and rehabilitative purposes of punishment. A defendant can be required to pay subsistence fee in addition to the maximum fine allowed if the halfway house is a private entity, because in that case, it cannot be counted as a fine.
was violated by any particular question. It was ruled that a court did not abuse its discretion in requiring, as a condition of supervised release, that the defendant report financial obligations in excess of $250 incurred by his wife. The condition was held to serve a legitimate monitoring purpose in light of the defendant's history of masking his income and ownership of assets, and the financial information was also deemed necessary for evaluating the defendant's ability to meet his restitution schedule.
of participation in a tribal hunt.
recently addressed the procedures required before a supervised release program could include penile plethysmograph
testing.
, online solicitation of sex with children, threats made via Internet, computer hacking
, etc. As a result of his supervised release conditions, for three years Kevin Mitnick
was unable to act as a consultant for any computer related subject or communicate via email. Christopher Painter, Deputy Chief, of the U.S. Department of Justice's Computer Crime and Intellectual Property Section, has said:
The United States Court of Appeals for the Second Circuit
vacated a condition imposed on a child pornography offender that required that "[T]he defendant shall consent to the installation of systems that will enable the Probation office or its designee to monitor and filter computer use on a regular or random basis and any computer owned or controlled by the defendant. The defendant shall consent to unannounced examinations of any computer equipment owned or controlled by the defendant which may result in the retrieval and copying of all data from the computer and any internal or external peripherals and may involve removal of such equipment for the purpose of conducting a more thorough investigation," on the grounds that it was overbroad. However, in a case involving a defendant deemed to be at risk of contacting young children and soliciting sex with them, a total Internet ban was affirmed by the Second Circuit. The court ruled in U.S. v. Peterson:
The United States Court of Appeals for the Third Circuit
approved a decade-long Internet ban for sex offender. However, a lifetime ban on Internet use was struck down by that circuit. In a case involving a counterfeiter who employed scanner, computer, and printer to counterfeit currency but did not utilize any other devices, and in no way involved or relied upon the internet, electronic bulletin boards, or other networks, the Ninth Circuit struck down a condition that stated, "The defendant shall use only those computers and computer-related devices, screen user names, passwords, email accounts, and internet service providers (ISPs), as approved by the Probation Officer...All computers, computer-related devices, and their peripheral equipment, used by the defendant, shall be subject to search and seizure and the installation of search and/or monitoring software and/or hardware, including unannounced seizure for the purpose of search."
The United States Court of Appeals for the Seventh Circuit
overturned a condition that "The defendant shall be prohibited from access to any Internet Services without prior approval of the probation officer," finding that, despite a few child pornography images having been found on the defendant's computer in the midst of a fraud investigation, he did not have "a record of extensive abuse of digital communications that could justify an outright ban."
The United States Court of Appeals for the Tenth Circuit
ordinarily applies an abuse of discretion standard of review
in reference to sentencing decisions, but applies a higher plain error standard when no timely objection to a condition was raised in District Court. In U.S. v. Walser, the 10th Circuit ruled, in reference to a condition prohibiting the defendant from using the Internet without the probation officer's permission, that the "vagueness of the special condition leaves open the possibility that the probation office might unreasonably prevent Mr. Walser from accessing one of the central means of information-gathering and communication in our culture today," but nonetheless affirmed because it was not "persuaded this concern rises to the level necessary to clear the extremely high hurdle set by the plain error standard". This position was reinforced by U.S. v. Zinn, in which the 10th Circuit acknowledged that its position was in disagreement with that expressed by the 3rd Circuit in United States v. Freeman and by the 2nd Circuit in United States v. Sofsky. The decision in the Zinn case was also in contrast to an earlier decision, U.S. v. White, which overturned an Internet restriction. The difference is that in the White case, the condition stated that the defendant "shall not possess a computer with Internet access throughout his period of supervised release," while the conditions imposed in the Walser and Zinn cases allowed the probation officer to grant permission, which the 10th Circuit held "more readily accomplishes the goal of restricting use of the Internet and more delicately balances the protection of the public with the goals of sentencing."
was ruled to be an unwarranted invasion of the physical person of the defendant. Because of Congress' plenary authority over the exclusion or expulsion of aliens, a court did not have the authority to order as a condition of probation that the defendant, an alien, leave the country. A condition was also struck down that forbid a defendant from causing the conception of any more children other than with his wife unless he was supporting his other children; the court stated, "Short of having a probation officer follow Smith twenty-four hours a day, there is no way to prevent Smith from fathering more children." A condition banning the defendant from watching television, as a means of promoting self-reflection and remorse, was struck down; the court found that "because other amusements are available to him at home, there is no reason to assume that in the absence of televised entertainment he will tend to his conscience. Bello cites radio and the Internet as ways he might spend his time at home without resort to silent introspection. He could add crossword
s and jigsaw puzzle
s, not to mention light reading. For all the record shows or the district court has found, Bello is as likely to occupy his mind by planning his next crime as anything else."
It has been argued that RFID chipping of sex offenders could be political feasible and allowable under the U.S. Constitution.
law, and therefore can be challenged under . Probation officers are entitled to qualified immunity
from probationers' due process
claims because probationers cannot claim a property interest in the statutory procedural protections.
s in the statute's drug-testing provisions and in the reference to community confinement as an authorized condition of supervised release, but the courts upheld legislative intent
.
Some conditions of probation and supervised release, such as compliance with drug test
Drug test
A drug test is a technical analysis of a biological specimen – for example urine, hair, blood, sweat, or oral fluid / saliva – to determine the presence or absence of specified parent drugs or their metabolites...
s, are made mandatory by statute, while others are optional. Some terms are recommended by the United States Sentencing Guidelines for specific situations; for instance, a requirement of participation in a mental health program is recommended when "the court has reason to believe that the defendant is in need of psychological or psychiatric treatment." The judge has broad discretion in deciding what optional conditions to impose, as long as those conditions are reasonably related to the nature and circumstances of the offense and the history and characteristics of the defendant, the need for the sentence imposed to afford adequate deterrence to criminal conduct, the need to protect the public from further crimes of the defendant, the need to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; and involve no greater deprivation of liberty than is reasonably necessary for these purposes and are consistent with any pertinent policy statements issued by the United States Sentencing Commission
United States Sentencing Commission
The United States Sentencing Commission is an independent agency of the judicial branch of the federal government of the United States. It is responsible for articulating the sentencing guidelines for the United States federal courts...
. The possible length of supervision is specified by law, with recommendations for particular situations being provided by the sentencing guidelines. The length and conditions of supervision can be modified by the court after sentencing, although the defendant has a right to a hearing if changes are being proposed that would adversely affect him.
Violations of conditions of probation or supervised release can result in said revocations being reported to the court and a revocation hearing being held. In such hearings, the defendant has the right to be informed of the alleged violation, to retain counsel or to request that counsel be appointed, and to have a probable cause hearing. The defendant has the burden of establishing that if released pending further proceedings, he will not flee or pose a danger to any other person or the community. The law mandates revocation for some violations, such as possession of a controlled substance, possession of a firearm
Felon in possession of a firearm
Being a felon in possession of a firearm is a felony in most U.S. states and in the federal system, per . Jay Dobyns has described it as the Bureau of Alcohol, Tobacco, Firearms and Explosives' "bread and butter" charge. Per , it is a class C felony punishable by up to 10 years in prison. The U.S...
, or refusal to take a drug test. The statute specifies the possible consequences of revocation, and the sentencing guidelines establish grades of violations and a revocation table recommending various terms of imprisonment depending on the seriousness of the violation and the defendant's criminal history when he was originally sentenced.
Classes of offenses
The class of offense determines what term of probation or supervised release may be imposed at sentencing, and the maximum term of imprisonment that may be imposed if supervised release is revoked. In the case of supervised release, if said maximum prison sentence for revocations has not yet been imposed, the defendant can be sentenced to a new term of supervised release to be served after the imprisonment. However, once the defendant, due to revocations, has served one or more prison terms which, combined, amount to the entire maximum term, the court may not impose a new term of supervised release.For example, suppose a defendant is convicted of a Class D felony and is sentenced to 16 months in prison and 3 years of supervised release. He serves his prison sentence and a few months on supervised release, but then is caught violating his terms of release, and the court revokes his supervised release and sentences him to 10 months in prison and a new 3-year supervised release term. Then he violates again, and is sentenced to another 10 months in prison and another 3-year supervised release term. Then he violates again, and is sentenced to 4 months in prison. This last time, he cannot be sentenced to a new term of supervised release, because he has already been sentenced to the maximum prison term available (24 months) for supervised release violations.
Probation
Probation as a substitute for imprisonment is authorized by the United States CodeUnited States Code
The Code of Laws of the United States of America is a compilation and codification of the general and permanent federal laws of the United States...
unless the offense is a Class A or Class B felony and the defendant is an individual; unless the offense is an offense for which probation has been expressly precluded; and unless the defendant is sentenced at the same time to a term of imprisonment for the same or a different offense that is not a petty crime. The exception is that a defendant convicted of a Class A or B felony can be granted probation if he renders substantial assistance to authorities. For first-time domestic violence
Domestic violence
Domestic violence, also known as domestic abuse, spousal abuse, battering, family violence, and intimate partner violence , is broadly defined as a pattern of abusive behaviors by one or both partners in an intimate relationship such as marriage, dating, family, or cohabitation...
offenders, probation is mandatory if the convicted defendant is not sentenced to a term of imprisonment. The U.S. Sentencing Commission is authorized to further restriction probation. Probation is authorized by the sentencing guidelines if the applicable guideline range is in Zone A of the Sentencing Table; or if the applicable guideline range is in Zone B of the Sentencing Table and the court imposes a condition or combination of conditions requiring intermittent confinement, community confinement, or home detention as provided in subsection (c)(3) of §5C1.1 (Imposition of a Term of Imprisonment). In 1986, the law was made somewhat harsher when Congress eliminated that provision that "The liability of a defendant for any unexecuted fine or other punishment imposed as to which probation is granted shall be fully discharged by the fulfillment of the terms and conditions of probation."
Under the earlier probation statute (repealed 1987), a defendant convicted of violating a statute which provided for a mandatory minimum sentence could still be placed on probation, with his sentence suspended, or could be made eligible for immediate parole. Since United States v. Booker
United States v. Booker
United States v. Booker, , was a United States Supreme Court decision concerning criminal sentencing. The Court ruled that the Sixth Amendment right to jury trial requires that, other than a prior conviction, only facts admitted by a defendant or proved beyond a reasonable doubt to a jury may be...
, the sentencing guidelines have become advisory but courts are nonetheless unable to impose probation in lieu of a mandatory minimum imposed by statute.
The grant of probation may be made on the court's own motion. Because the power of pardon
Pardon
Clemency means the forgiveness of a crime or the cancellation of the penalty associated with it. It is a general concept that encompasses several related procedures: pardoning, commutation, remission and reprieves...
ing offenders is vested in the President of the United States
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
only, probation is not considered a pardon of any kind, but rather an authorized form of punishment of mild nature, and unlike a pardon, it cannot be refused by the convicted person. Federal courts have an inherent power to reduce a sentence, but without Congressional authorization, a federal court has no power to suspend the execution of a sentence which it has imposed or to place the defendant on probation. When this was first announced by the Supreme Court in 1916 in the case of Ex Parte United States, an abrupt halt was brought to a practice which, by then, had become widespread in the federal system, and which had existed for more than 70 years. A sentence for a period of one year with an order that, after the defendant had served three months of his sentence, probation was to be granted on the condition that the defendant abide by laws, was void for want of jurisdiction, since it was in effect an exercise of pardoning power.
Probation is an act of grace and the defendant does not gain a vested right in probationary status once a probationary sentence is imposed. It has been ruled that the probation power does not unconstitutionally encroach on the pardon power of the President.
Since probation is a form of punishment, once the sentence of probation has commenced, the court will run afoul of the double jeopardy
Double jeopardy
Double jeopardy is a procedural defense that forbids a defendant from being tried again on the same, or similar charges following a legitimate acquittal or conviction...
clause if it increases the penalty. Probation's primary objective is to protect society by rehabilitating the offender. A person placed on probation is considered a probationer of the court as a whole, and not that of a particular judge thereof. When a defendant is placed on probation, he expressly agrees to be subject to supervision appropriate to a probationer, to avoid the more onerous regimen of a prisoner; accordingly, the defendant retains those rights of an ordinary citizen that are compatible with probationary status, although certain rights, such as the right against self-incrimination
Self-incrimination
Self-incrimination is the act of accusing oneself of a crime for which a person can then be prosecuted. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; indirectly, when information of a...
, are impaired. There is no requirement that probation must be granted on a specified showing. Probation is considered a privilege and not a right. The action of a district court in refusing to grant probation is not reviewable on appeal except possibly for arbitrary or capricious action on the part of the District Court amounting to abuse of discretion.
The type of person for whom the benefit of probation was intended is a young first offender. A trial court cannot deny probation to a defendant on the sole ground that it has a standing policy of denying probation to those who stand trial instead of pleading guilty.
Probationary sentences that fall outside the U.S. Sentencing Guidelines can be appealed. An application for probation cannot be acted upon by the trial court after the defendant is taken into custody by the federal marshal to await transportation to the place at which sentence is to be served, since by that point the sentence has already begun to run. The District Court is without jurisdiction to modify its judgment during the pendency of an appeal, but it retains the power to modify, suspend, or otherwise deal with terms of probation. The court also cannot, by issuing a reservation in its judgment, confer upon itself the power to grant probation after the sentence has begun. However, the defendant's paying of a fine does not constitute partial execution of sentence such that it would defeat the court's power to grant probation.
A sentence of probation is considered a final judgment, but it can nonetheless be modified or revoked, corrected, or appealed and modified, pursuant to the applicable law and federal rules of criminal procedure.
A defendant can, however, be sentenced to prison on some indictments and be placed on probation for other indictments.
Supervised release
Supervised release made its debut in 1984 with the enactment of the Federal Sentencing Guidelines. It replaced federal parole for all crimes committed after November 1, 1987. Congress had concluded that the parole system operated in an arbitrary way because the period of a defendant's street supervision was based on the time remaining in the defendant's original sentence. The system of supervised release was originally intended to help with the rehabilitation and reintegration of offenders into the community, and did not allow revocation of supervised release. The philosophy was that minor violations should not result in revocation, and that new crimes should be dealt with through prosecution as a new offense. However, the system was greatly revamped by the Anti-Drug Abuse ActAnti-Drug Abuse Act
The Anti-Drug Abuse Act of 1986, , , was the first major law passed by the U.S. Congress of the War on Drugs. Among other things, they changed the system of federal supervised release from a rehabilitative system into a punitive system. The 1986 Act also prohibited controlled substance analogs...
s of 1986 and 1988. These laws added an incapacitative "protection of the public" goal as a purpose to be served by supervised release, allowed revocation of supervised release, and made revocation mandatory for defendants who committed controlled substance violations.
Corporate probationers
It was possible under the former law to place a corporation on probation. Specifically, a corporation could be sentenced to probation over a period of time not to exceed 5 years, coupled with suspension of payment of part of the fine. Corporations can be placed on probation, but corporate shareholders of the defendant corporation cannot be placed on probation without making them defendants too and giving them an opportunity to be heard. Controversial proposed amendments to the U.S. Sentencing Guidelines would encourage courts to install monitors in corporate probationers with wide-reaching powers to examine corporate records. There has also been some debate as to whether courts can order corporate probationers to make charitable contributions.Factors considered
A federal court, in determining whether to impose a term of probation and the length of the term and the conditions of the probation, is required to consider, to the extent these factors are applicable: the nature and circumstances of the offense and the history and characteristics of the defendant; the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense, to afford adequate deterrence to criminal conduct, to protect the public from further crimes of the defendant, to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; the kinds of sentences available; the kinds of sentence and the sentencing range established for the offense by the Guidelines Commission; pertinent policy statements of the sentencing commission; the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and the need to provide restitution to any victims of the offense.Length and timing
By law, a felony can be punished by not less than one nor more than five years of probation; a misdemeanor can be punished by not more than five years probation; and an infraction can be punished by not more than one year of probation.Supervised release is recommended by the Guidelines for most offenders who are serving a prison sentence of more than a year. The court has power to supervise the conduct of the probationer not only during the period of probation but afterwards up to the time when the maximum sentence which could have been imposed would have expired. But the period of probation is not limited by the period of maximum sentence that might have been imposed. On the other hand, probation does not become a nullity if the period of probation was not specified in the sentence, since the probationary period is limited by the maximum term of the sentence.
The United States Sentencing Guidelines provide that the term of supervised release shall be at least three years but not more than five years for a defendant convicted of a Class A or B felony
Classes of offenses under United States federal law
The classes of offenses under United States federal law are as follows:References-See also:*Special assessment on convicted persons*Supervised release*Probation and supervised release under United States federal law...
; at least two years but not more than three years for a defendant convicted of a Class C or D felony; and one year for a defendant convicted of a Class E felony or a Class A misdemeanor. The U.S. Supreme Court ruled in 2000 that “[a] term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days.” It is not unheard of in child pornography
Child pornography
Child pornography refers to images or films and, in some cases, writings depicting sexually explicit activities involving a child...
cases for the defendant to be placed on supervised release for the rest of his life. In 2007, the average length of a sentence of supervised release was 42 months.
By default, probation commences when the judge imposes sentence. However, the trial court has power to place the defendant on probation effective after a subsequent event, such as completion of service of sentence on another change.
Violations
Violation of the conditions can result in revocation of probation or supervised release. Upon revocation of probation, the court may, after considering the factors set forth in , continue him on probation, with or without extending the term or modifying or enlarging the conditions; or revoke the sentence of probation and resentence the defendant under subchapter A. Upon revocation of supervised release, the defendant may be sentenced to up to 5 years in prison if the offense that resulted in the term of supervised release is a class A felony, up to 3 years in prison if such offense is a class B felony, up to 2 years in prison if such offense is a class C or D felony, or up to one year in any other case. This is in addition to any sentence that may be imposed for a new crime. A person charged with violating the conditions faces the burden of proof of showing by clear and convincing evidence at a detention hearing that he is not a flight risk or danger to the community.The Sentencing Guidelines provide for three grades of violations. Grade A Violations are conduct constituting (A) a federal, state, or local offense punishable by a term of imprisonment exceeding one year that (i) is a crime of violence, (ii) is a controlled substance offense, or (iii) involves possession of a firearm or destructive device of a type described in 26 U.S.C. § 5845(a); or (B) any other federal, state, or local offense punishable by a term of imprisonment exceeding twenty years. Grade B Violations are conduct constituting any other federal, state, or local offense punishable by a term of imprisonment exceeding one year. Grade C Violations are conduct constituting (A) a federal, state, or local offense punishable by a term of imprisonment of one year or less; or (B) a violation of any other condition of supervision. The Guidelines state that the court "shall" revoke probation or supervised release upon a finding of a Grade A or B violation, and "may" revoke it upon a finding of a Grade C violation. The applicable guideline prison sentence for revocations is specified by a Revocation Table that takes into account the offender's Criminal History Category and the grade of the offense.
Most violations are technical violations, and the primary reason for technical violations is substance abuse. The supervised release revocation rate in 1990 was 67 percent. In 1992, 47 percent of supervised release cases were closed by violation, of which 72 percent were revoked for technical reasons not involving the commission of a new offense. By 1993, the rate had dropped to 42 percent, with about 69 percent of those revoked for technical reasons. The reason for the drop may have been that releasees who are in the early years of their term of supervised release are more likely to be revoked; when supervised release was first introduced, all of the releasees were in this high-risk category.
At first, most courts ruled that a sentence of imprisonment imposed upon revocation cannot be followed by an additional term of supervised release, unless the defendant is convicted of a new crime for which supervised release is an authorized punishment. However, this law was changed, and now states, "When a term of supervised release is revoked and the defendant is required to serve a term of imprisonment, the court may include a requirement that the defendant be placed on a term of supervised release after imprisonment. The length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release." The original had included a clause stating that the term of imprisonment had to be less than the maximum term of imprisonment authorized by in order for a term of supervised release to be available, but this led to perverse effects in that, for instance, if the maximum term of imprisonment was two years, a judge could sentence a defendant to two years less one day, and then be able to sentence him to a year of supervised release.
It was originally recommended by the Federal Courts Study Committee that the U.S. Parole Commission or a successor agency conduct hearings in supervised release cases, but this proposal was rejected by the Judicial Conference of the United States
Judicial Conference of the United States
The Judicial Conference of the United States, formerly known as Conference of Senior Circuit Judges, was created by the United States Congress in 1922 with the principal objective of framing policy guidelines for administration of judicial courts in the United States...
, partly because the judges felt that the judicial officer who imposed the supervised release conditions would be best able to interpret those conditions in the way that was intended at sentencing. It was also deemed desirable that supervised release revocations be subject to the same procedural safeguards as probation revocations. The Judicial Conference also opposed mandatory drug testing and mandatory revocation of probation and supervised release, requirements imposed by the Violent Crime Control and Law Enforcement Act
Violent Crime Control and Law Enforcement Act
The Violent Crime Control and Law Enforcement Act, , , was an act of Congress dealing with crime and law enforcement that became law in 1994. It is the largest crime bill in the history of the US at 356 pages and will provide for 100,000 new police officers, $9.7 billion in funding for prisons and...
.
The Federal Rules of Evidence
Federal Rules of Evidence
The is a code of evidence law governing the admission of facts by which parties in the United States federal court system may prove their cases, both civil and criminal. The Rules were enacted in 1975, with subsequent amendments....
generally do not apply in their normal force to supervised release revocation proceedings. The holding of revocation hearings by videoconferencing
Videoconferencing
Videoconferencing is the conduct of a videoconference by a set of telecommunication technologies which allow two or more locations to interact via two-way video and audio transmissions simultaneously...
is not permitted because "virtual reality is rarely a substitute for actual presence and . . . watching an event on the screen remains less than the complete equivalent of actually attending it." Probationers need not be proven guilty beyond a reasonable doubt
Beyond a Reasonable Doubt
Beyond a Reasonable Doubt is a 1956 film directed by Fritz Lang and written by Douglas Morrow. The film, considered film noir, was the last American film directed by Lang.-Plot:...
of having committed a violation; a preponderance of the evidence suffices. In Johnson v. United States
Johnson v. United States
Johnson v. United States, , was a U.S. Supreme Court case in which the rights of those serving federal probation and supervised release were more clearly defined...
, the court found that "Although such violations often lead to reimprisonment, the violative conduct need not be criminal and need only be found by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt." Hearsay
Hearsay
Hearsay is information gathered by one person from another person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence. As a legal term, "hearsay" can also have the narrower meaning of...
is also admissible in such hearings. The courts have not been inclined to extend the sweep of the Booker and Blakely v. Washington
Blakely v. Washington
Blakely v. Washington, 542 U.S. 296 , held that, in the context of mandatory sentencing guidelines under state law, the Sixth Amendment right to a jury trial prohibited judges from enhancing criminal sentences based on facts other than those decided by the jury or admitted by the defendant...
decisions to supervised release. According to the Federal Public Defender, "In reality, there are very few full revocation proceedings. Most frequently, a deal is worked out that requires an admission of some of the charges, and an agreed-upon sentence."
Most federal appeals courts have ruled that a single positive urinalysis constitutes possession of a controlled substance warranting supervised release revocation, resulting in him being sentenced to a prison term of at least one-third the supervised release term, although it has been argued that the legislative history
Legislative history
Legislative history includes any of various materials generated in the course of creating legislation, such as committee reports, analysis by legislative counsel, committee hearings, floor debates, and histories of actions taken...
indicates that Congress did not intend this interpretation. The federal government considers the use of medical cannabis
Medical cannabis
Medical cannabis refers to the use of parts of the herb cannabis as a physician-recommended form of medicine or herbal therapy, or to synthetic forms of specific cannabinoids such as THC as a physician-recommended form of medicine...
by probationers to be a violation. The court is not prohibited from considering the results of a drug test that shows presence of cocaine
Cocaine
Cocaine is a crystalline tropane alkaloid that is obtained from the leaves of the coca plant. The name comes from "coca" in addition to the alkaloid suffix -ine, forming cocaine. It is a stimulant of the central nervous system, an appetite suppressant, and a topical anesthetic...
metabolites in the defendant's urine, albeit a level that is below what the contract between the testing laboratory and the Administrative Office of United States Courts requires for a positive test.
The term of supervised release that is subject to revocation is the term originally imposed by the court, not the existing unserved term of supervised release. The courts are divided on whether, when imposing a new sentence after revocation, the court can consider the seriousness of the offense, since this is a factor that Congress deliberately omitted from the list applicable to revocation sentencing. More than one revocation of supervised release is permitted. The statute provides for aggregated, rather than per violation, statutory maximum terms of imprisonment for violations of supervised release.
Revocation table
These are the prison sentences that the U.S. Sentencing Guidelines recommend imposing upon a revocation of supervised release. This table notwithstanding, the maximum term of imprisonment that can be imposed upon revocation is subject to the statutory maximum listed in the offense classes table above.| Grade of violation | Criminal History Category | |||||
|---|---|---|---|---|---|---|
| I | II | III | IV | V | VI | |
| Grade C | 3-9 | 4-10 | 5-11 | 6-12 | 7-13 | 8-14 |
| Grade B | 4-10 | 6-12 | 8-14 | 12-18 | 18-24 | 21-27 |
| Grade A (original offense not Class A felony) | 12-18 | 15-21 | 18-24 | 24-30 | 30-37 | 33-41 |
| Grade A (original offense Class A felony) | 24-30 | 27-33 | 30-37 | 37-46 | 46-57 | 51-63 |
Modification
Per , the U.S. District Court may "extend a term of supervised release if less than the maximum authorized term was previously imposed, and may modify, reduce, or enlarge the conditions of supervised release". Federal Rule of Criminal Procedure 32.1(c) provides that the court must hold a hearing unless the defendant has waived the hearing, or the relief sought is favorable to the defendant and does not extend the term of probation or of supervised release, and an attorney for the government has received notice of the relief sought, has had a reasonable opportunity to object, and has not done so.Conditions
The conditions of probation must be provided to the defendant in a written statement that is sufficiently clear and specific to serve as a guide for the defendant's conduct and for such supervision as is required. The District Court must state its reasons for imposing a term of supervised release where none is required by statute; appellate courts deem it inappropriate to assume that the sentencing court's reason for imposing a prison term likewise extends to its decision regarding supervised release. The conditions for probation must be reasonably related to the purposes of the Federal Probation Act, and the purposes sought to be served by probation (including rehabilitation of the probationer), the extent to which constitutional rights enjoyed by law-abiding citizens should be accorded to probationers, and the legitimate needs of law enforcement are factors considered in determining whether a reasonable relationship exists. The trial court is given wide discretion in establishing conditions of probation, and the order of the district judge providing for probation will be overturned only if it is abuse of discretion.While the court can adopt terms and conditions of probation recommended to it by an administrative agency of government, the court cannot delegate its power to fix terms and conditions of probation or to determine the parties aggrieved, the amounts to be paid, and the time and manner of payment The court must orally give the conditions of probation, and when there is a discrepancy between conditions given orally and conditions given in writing, the oral statements control (except in situations in which the conditions in question are standard conditions). If one condition of probation is void, it does not invalidate the sentence.
Failure to provide conditions does not render the probation order invalid.
For all offenders
As required conditions for all offenders, the defendant shall not commit another federal, state or local offense; shall not unlawfully possess a controlled substance; shall refrain from any unlawful use of a controlled substance and submit to one drug testDrug test
A drug test is a technical analysis of a biological specimen – for example urine, hair, blood, sweat, or oral fluid / saliva – to determine the presence or absence of specified parent drugs or their metabolites...
within 15 days of release on probation and at least two periodic drug tests thereafter (as determined by the court) for use of a controlled substance, but the condition stated in this paragraph may be ameliorated or suspended by the court for any individual defendant if the defendant’s presentence report or other reliable information indicates a low risk of future substance abuse by the defendant; if a fine is imposed and has not been paid upon release to supervised release, shall adhere to an installment schedule to pay that fine; shall make restitution and pay the special assessment on convicted persons
Special assessment on convicted persons
The special assessment on convicted persons is part of the sentence of all offenders convicted of federal crimes in the United States. It applies on a per-count basis; thus, an offender convicted of 14 counts of bank robbery would need to pay 14 $100 special assessments, for a total of $1,400. The...
; shall submit to the collection of a DNA sample from the defendant at the direction of the United States Probation Office if the collection of such a sample is authorized pursuant to section 3 of the DNA Analysis Backlog Elimination Act of 2000
DNA Analysis Backlog Elimination Act of 2000
The DNA Analysis Backlog Elimination Act of 2000 is a United States Act of Congress that primarily allows U.S. States to carry out DNA analyses for use in the FBI's Combined DNA Index System and to collect and analyse DNA samples.Under the Violent Crime Control and Law Enforcement Act of 1994 , 42...
. If the defendant fails a drug test, he may be detained pending verification of the test by gas chromatography/mass spectrometry
Mass spectrometry
Mass spectrometry is an analytical technique that measures the mass-to-charge ratio of charged particles.It is used for determining masses of particles, for determining the elemental composition of a sample or molecule, and for elucidating the chemical structures of molecules, such as peptides and...
.
Offenders are generally required to submit a monthly supervision report within the first five days of the month to the U.S. Probation office. The report asks about employment; vehicles; finances (including bank accounts, past due debts, cash inflows and outflows, major expenditures, post office box
Post Office box
A post-office box or Post Office box is a uniquely addressable lockable box located on the premises of a post office station....
es, safe deposit box
Safe deposit box
A safe deposit box or wrongly referred to as a safety deposit box is an individually-secured container, usually held within a larger safe or bank vault. Safe deposit boxes are generally located in banks, post offices or other institutions...
es, and storage units); questionings by law enforcement; arrests; dispositions of charges; contacts with others who have criminal records; firearm possession and/or access; illegal drug use and/or possession; travel outside the probation district; special assessments, restitution, and fine balances and payments; community service
Community service
Community service is donated service or activity that is performed by someone or a group of people for the benefit of the public or its institutions....
obligations and hours completed, missed, and remaining; and drug, alcohol, and mental health aftercare and any sessions missed. It is a class D felony to make a false statement on this report.
Sex offenders
In a state in which the requirements of the Sex Offender Registration and Notification Act do not apply, a defendant convicted of a sexual offense as described in shall report the address where the defendant will reside and any subsequent change of residence to the probation officer responsible for supervision, and shall register as a sex offender in any State where the person resides, is employed, carries on a vocation, or is a student. In a state in which the requirements of Sex Offender Registration and Notification Act apply, a sex offender shall (i) register, and keep such registration current, where the offender resides, where the offender is an employee, and where the offender is a student, and for the initial registration, a sex offender also shall register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence; (ii) provide information required by ; and (iii) keep such registration current for the full registration period as set forth in ;
Domestic violence offenders
If the defendant is convicted for a domestic violence crime as defined in 18 U.S.C. § 3561(b) for the first time shall attend a public, private, or private non-profit offender rehabilitation program that has been approved by the court, in consultation with a State Coalition Against Domestic Violence or other appropriate experts, if an approved program is available within a 50-mile radius of the legal residence of the defendant.
Other conditions
The former statute, 18 U.S.C.A. 3651 (1964), authorized the trial court to place a criminal defendant on probation "for such period and upon such terms and conditions as the court deems best." Courts interpreted this as meaning that "Congress obviously intended by means of the broad statutory language to invest the court with great discretion to establish conditions which would lead to the defendant's ultimate acceptance by society."The 2nd Circuit, in U.S. v. Myers, ruled that if the liberty interest at stake in a decision involving a condition of release is fundamental, a deprivation of that liberty is "reasonably necessary" only if the deprivation is narrowly tailored to serve a compelling government interest. Courts of appeals have consistently required district courts to set forth factual findings to justify special probation conditions. It is not enough that the required findings are implicit in the record. The District Court is required to give reasons on the record for imposition of special conditions of supervised release. A district court's failure to state its reasons for conditioning supervised release results at a minimum in a remand
Remand
The term remand may be used to describe an action by an appellate court in which it remands, or sends back, a case to the trial court or lower appellate court for action....
.
Standard conditions
Standard conditions include that the defendant shall not leave the judicial district without the permission of the court or probation officer; the defendant shall report to the probation officer and shall submit a truthful and complete written report within the first five days of each month; the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer; the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician; the defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a felony, unless granted permission to do so by the probation officer; the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere; and the defendant shall provide access to any requested financial information.The ban on associating with persons with felony convictions has been criticized on the grounds that some releasees may have family members who have criminal records or may live in a neighborhood where most of the residents have criminal records.
Search and seizure
A condition of probation requiring the defendant to "submit to search of his person, home, or vehicle at any time of the day or night by any law enforcement or other authorized officer without their need for a search warrant" was upheld as valid in the 9th Circuit in 1976, but a very similar condition was ruled overly broad in the 9th Circuit in 1978. A similar condition was also struck down in the 7th Circuit in 2001. However, the 2006 U.S. Supreme Court decision Samson v. CaliforniaSamson v. California
Samson v. California, 547 U.S. 843 , was a case in which the Supreme Court of the United States affirmed the decision of the California Court of Appeal; which held that suspicionless searches of parolees are lawful under California law and that the search in this case was reasonable under the...
eliminated any requirement of reasonable suspicion
Reasonable suspicion
Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an "inchoate and unparticularized suspicion or 'hunch' ";...
prior to a search of probationers' homes or persons.
Seeking or holding elective office
A probation condition prohibiting a former city councilman convicted under the Hobbs ActHobbs Act
The Hobbs Act, named after Congressman Sam Hobbs and codified at , is a U.S. federal law that prohibits actual or attempted robbery or extortion affecting interstate or foreign commerce. Section 1951 also proscribes conspiracy to commit robbery or extortion without reference to the conspiracy...
of attempting to affect commerce by extortion from seeking or serving in elected public office was affirmed. A similar outcome occurred in a case in which the defendant had violated election law
Election law
Election law is a discipline falling at the juncture of constitutional law and political science. It researches "the politics of law and the law of politics"...
s.
Travel restrictions
Even in a case in which the defendant was convicted of bringing large amounts of illegal drugs into the country, and the appellate court agreed that the defendant should not return to Israel, where his troubles began, it was ruled that the District Court must make findings in support of a restriction against travelling out of the U.S.Restitution
The concept of community restitutionCommunity restitution
Community restitution is sometimes imposed as part of a criminal sentence. Under this condition, a probationer restores the harm done to the community by the crime, perhaps through community service. The concept of community restitution was not authorized by U.S. federal law....
was not authorized by the former U.S. federal law. Also under that law, restitution was struck down where aggrieved parties were not identified and actual damages or loss caused were not evaluated with exactitude. The District Court is without power to order restitution of an amount greater than the actual loss caused by the offense for which conviction was had, regardless of a presentence report indicating a greater amount of total losses. The order to make restitution cannot extend to sums pertaining to crimes for which the defendant was neither indicted, tried, nor convicted. There seems to be a circuit split
Circuit split
In the context of United States federal courts, a circuit split exists when two or more circuits in the United States court of appeals system have different interpretations of federal law....
as to whether a defendant can be ordered to repay money given by the government as part of a sting operation
Sting operation
In law enforcement, a sting operation is a deceptive operation designed to catch a person committing a crime. A typical sting will have a law-enforcement officer or cooperative member of the public play a role as criminal partner or potential victim and go along with a suspect's actions to gather...
. Under , sentencing courts are permitted to impose restitution as a condition of release to the extent agreed to by the government and defendant in a plea agreement.
Fines
A court may not impose a fine and place a defendant on probation if the offense is punishable by fine or imprisonment. However, probation as to one count can be conditioned on payment of fine imposed under another count. If a defendant is unable to pay fees, revocation of probation for nonpayment is considered unconstitutional. But an income tax evasion defendant ordered to cooperate with the Collector of Internal Revenue in determining the amount of tax due and pay that amount could be subjected to revocation of probation if he failed to, in good faith, pay what he could on taxes, but instead concealed and fraudulently transferred assets. In a case in which a defendant was ordered to pay $1,500 in back taxes within 24 hours of sentencing, the appellate court ruled that this was acceptable since the defendant had plenty of time between conviction and sentencing in which to take care of his tax debt. In the United States, it has been ruled that probationers have no First AmendmentFirst Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
right to avoid federal income taxes on religious grounds. Probationers are required to obey the law; tax resistance
Tax resistance
Tax resistance is the refusal to pay tax because of opposition to the government that is imposing the tax or to government policy.Tax resistance is a form of civil disobedience and direct action...
is illegal; therefore, by syllogism, probationers cannot engage in tax resistance.
Cohabitation
In U.S. v. Woods, a judge ruled in a crack cocaine case that during the first five years after her release, the defendant couldn't live with anyone other than a relative or spouse. The judge said this condition was needed to impose "stability" in her home. The U.S. Court of Appeals for the Fifth Circuit struck down the condition, saying it infringed "her constitutional right to liberty."Reporting of significant romantic relationships
In the case of United States v. Reeves, the 2nd Circuit struck down a provision that the defendant notify the probation officer upon entering into a "significant romantic relationship":Associational restrictions
Freedom of associationFreedom of association
Freedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests....
may be restricted if reasonably necessary to accomplish the essential needs of the state and public order. A condition of probation requiring the defendant to "associate only with law-abiding persons" is not invalid as unconstitutionally vague and overbroad where the evidence showed that the defendant, on some 40 occasions during a 4-year period, was seen with one or more individuals with criminal records. A condition of probation requiring a defendant convicted of narcotics and firearms offenses to stay away from his daughter was upheld. In that case, the court noted that the defendant's wife was his a convicted felon (indeed, she was his co-defendant) and that in the course of trying to contact his daughter, he might encounter his wife, in violation of his order not to have contact with felons. The court also noted that a condition of release need not be related to the specific offense; it is enough that it be related to the purposes of supervised release.
A requirement that a defendant who headed the "Pure American Freedom Party" and was convicted of possessing an unregistered firearm avoid associating with other skinhead
Skinhead
A skinhead is a member of a subculture that originated among working class youths in the United Kingdom in the 1960s, and then spread to other parts of the world. Named for their close-cropped or shaven heads, the first skinheads were greatly influenced by West Indian rude boys and British mods,...
s and neo-Nazis was upheld. Similar conditions have been upheld in other cases involving firearms and explosives violations, including the case of James Ross, who passed out flyers for National Alliance, owners of Resistance Records
Resistance Records
Resistance Records is a record label owned by Resistance LLC, a society closely connected to the National Alliance. It produces and sells music by neo-Nazi and white separatist musicians, primarily through its website...
, the creators of the video game Ethnic Cleansing
Ethnic Cleansing (video game)
Ethnic Cleansing is a computer game developed by Resistance Records, an underground music label owned by the National Alliance specializing in Neo-Nazi and white supremacist bands...
. Likewise, a condition preventing a that a defendant convicted of unlawfully importing firearms into the United Kingdom from participating in any American Irish Republican movement, from belonging to any Irish organization, from participating in any Irish Catholic
Irish Catholic
Irish Catholic is a term used to describe people who are both Roman Catholic and Irish .Note: the term is not used to describe a variant of Catholicism. More particularly, it is not a separate creed or sect in the sense that "Anglo-Catholic", "Old Catholic", "Eastern Orthodox Catholic" might be...
organization, from visiting any Irish pubs, and from accepting employment that would directly or indirectly associate him with any Irish organization, was upheld. In the Smith case, a defendant convicted of unlawfully wearing a military uniform as part of an anti-war skit was ordered to "forego any association whatever with the Students for Democratic Society Organization," and to "Discontinue your association with the members of the Humanists group with which you violated the law." The appellate court upheld this condition, noting, "Smith could have rejected probation and elected prison. He chose to enjoy the benefits of probation; he must also endure its restrictions."
Speech restrictions
A defendant convicted of obstructing a court's order related to antiabortion protests was ordered not to "harass, intimidate or picket in front of any gynecological or abortion family planning services center," and this ruling was upheld as not violating the First Amendment to the United States ConstitutionFirst Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
on the grounds that incidental restrictions of First Amendment rights to freedom of speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
and association are permissible if reasonably necessary to accomplish the essential needs of the state and public order. In the Arthur Porth
Arthur Porth
Arthur Julius Porth was a Wichita, Kansas building contractor and tax protestor who ran afoul of the federal government in the mid-20th century. In the case of Porth v...
case, a condition of probation forbidding speaking or writing on the unconstitutionality of tax evasion
Tax evasion
Tax evasion is the general term for efforts by individuals, corporations, trusts and other entities to evade taxes by illegal means. Tax evasion usually entails taxpayers deliberately misrepresenting or concealing the true state of their affairs to the tax authorities to reduce their tax liability,...
laws was struck down as an unnecessary restriction on freedom of expression, but a condition prohibiting advocacy of tax evasion was upheld as valid. A district court was deemed justified in imposing a condition of probation prohibiting a defendant with a history of prior child sex abuse from being at educational or recreational facilities where children congregate, but unjustified in prohibiting the defendant from being at such facilities where children do not congregate.
Alcohol and drug prohibition, treatment and testing
The court can impose a condition that a defendant not consume alcohol. Courts can prohibit use of other legally-obtained intoxicants as well. But the condition must be reasonably related to the crime for which the defendant pled guilty. The court can order outpatient drug abuse treatment and alcohol testing even if the defendant has no history of drug or alcohol abuse, if the defendant has attempted suicide by overdosing on medication and has a history of unstable behavior. The court may waive the statutory drug testing requirement if the presentence report or other reliable sentencing information indicates a low risk of future substance abuse, but in some circuits is not required to do so although at least one defendant was not required to under mandatory drug testing as part of his probation where the offense was not drug-related and the defendant did not have a history of drug abuse. Nearly 680,000 federal offender urine samples were tested for drugs in 1992. Consuming 12 beers over a weekend does not constitute excessive use of alcohol as a matter of law.Mental health treatment or examination
Court-ordered mental health treatment as a condition of probation has been upheld when the case had taken an emotional toll on the defendant and the defendant said the conviction felt "like the end of her life as she knows it" or when the defendant has a history of major depression, refusal to take antidepressants, and dangerous conduct such as taking a drug dealer he suspected of cheating his wife on a marijuana deal to a police station at gunpoint; or when the defendant has abused his own disabled daughter. But the court cannot delegate to the probation officer the authority to decide whether the defendant shall participate in a mental health program.Involuntary medication
United States v. Cope was a case in which the U.S. Court of Appeals for the 9th Circuit held that a need for heightened findings applies to conditions of supervised release requiring the defendant "to take 'any' or 'all' medication prescribed by a medical or other treatment personnel." The 9th Circuit has ruled that a condition of supervised release "compelling a person to take antipsychotic medication is an especially grave infringement of liberty," so much so that "a thorough inquiry is required before a court" may include it as a special condition of release.Employment
Although courts have indicated unwillingness to uphold absolute occupational prohibitions that impose unnecessary hardship and have nothing to do with the offense, in some cases they have found that banning a defendant from a particular occupation (e.g. financial executive) is acceptable since all employment is not foreclosed by such a condition.Third party notification
In the Peterson case, it was ruled that a bank larceny defendant with a prior incestIncest
Incest is sexual intercourse between close relatives that is usually illegal in the jurisdiction where it takes place and/or is conventionally considered a taboo. The term may apply to sexual activities between: individuals of close "blood relationship"; members of the same household; step...
conviction could not be ordered to reveal to employers his incest conviction, because "an occupational restriction must be based on the offense of conviction." A condition ordering a defendant to notify his tax preparation
Tax preparation
Tax preparation is the process of preparing tax returns, often income tax returns, often for a person other than the taxpayer, and generally for compensation. Tax preparation may be done by the taxpayer with or without the help of tax preparation software and online services...
clients of his conviction for aiding and abetting preparation of false income tax
Income tax
An income tax is a tax levied on the income of individuals or businesses . Various income tax systems exist, with varying degrees of tax incidence. Income taxation can be progressive, proportional, or regressive. When the tax is levied on the income of companies, it is often called a corporate...
was struck down because the court did not make findings that the condition was reasonably necessary to protect the public and that it was the minimum occupational restriction needed to protect the public.
Child support
Although a district court can require a defendant to comply with a preexisting child supportChild support
In family law and public policy, child support is an ongoing, periodic payment made by a parent for the financial benefit of a child following the end of a marriage or other relationship...
order as a condition of supervised release, the court cannot require the defendant to pay his child support obligations at a rate different than that established by the state court, because family relations are a traditional area of state concern.
Halfway house
A probationary requirement of residence in a halfway houseHalfway house
The purpose of a halfway house, also called a recovery house or sober house, is generally to allow people to begin the process of reintegration with society, while still providing monitoring and support; this is generally believed to reduce the risk of recidivism or relapse when compared to a...
is allowed because the defendant's ability to work full-time, leave the facility with permission and have visitors on weekends prevent it from being tantamount to imprisonment; according to the 11th Circuit, any deprivations of the defendant's liberty are in accordance with the punitive deterrent and rehabilitative purposes of punishment. A defendant can be required to pay subsistence fee in addition to the maximum fine allowed if the halfway house is a private entity, because in that case, it cannot be counted as a fine.
Disclosure of information
A probationary condition that a defendant testify under oath on all questions as to his financial condition relating to amounts and locations of all assets was upheld as legal because the defendant made a blanket refusal to answer any questions, and therefore it could not be shown that his right against self-incrimination under the Fifth Amendment to the United States ConstitutionFifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
was violated by any particular question. It was ruled that a court did not abuse its discretion in requiring, as a condition of supervised release, that the defendant report financial obligations in excess of $250 incurred by his wife. The condition was held to serve a legitimate monitoring purpose in light of the defendant's history of masking his income and ownership of assets, and the financial information was also deemed necessary for evaluating the defendant's ability to meet his restitution schedule.
Firearms
Pursuant to , it is another felony for a felon to possess a firearm in the United States, and terms of probation for felons typically include a prohibition on possessing firearms. But it is not necessarily required for nonviolent misdemeanants. It was permitted for a federal court to prohibit an Indian boy to possess a firearm until age 21, even though it impinged on his religious rite of passageRite of passage
A rite of passage is a ritual event that marks a person's progress from one status to another. It is a universal phenomenon which can show anthropologists what social hierarchies, values and beliefs are important in specific cultures....
of participation in a tribal hunt.
Penile plethysmography requirement
The United States Court of Appeals for the Ninth CircuitUnited States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
recently addressed the procedures required before a supervised release program could include penile plethysmograph
Penile plethysmograph
Penile plethysmography , or "phallometry", refers to measurement of bloodflow to the male genital. The most commonly reported methods of conducting penile plethysmography involve the measurement of the circumference of the penis with a mercury-in-rubber strain gauge, or the volume of the penis with...
testing.
Pornography restrictions
The Ninth Circuit has ruled that banning a defendant from possessing "any pornographic, sexually oriented or sexually stimulating materials" is unconstitutionally vague. However, that circuit has also ruled that a defendant's right to free speech may be abridged to effectively address his sexual deviance problem.Internet restrictions
Internet restrictions as conditions of supervised release under United States federal law have been somewhat controversial. A blanket prohibition from accessing the Internet is a legal supervised release condition under the U.S. federal sentencing guidelines provided that there is a reasonable relation between the underline offense and the characteristics of defendant. Thus, such restrictions are most common in cases involving downloading of child pornographyChild pornography
Child pornography refers to images or films and, in some cases, writings depicting sexually explicit activities involving a child...
, online solicitation of sex with children, threats made via Internet, computer hacking
Hacker (computer security)
In computer security and everyday language, a hacker is someone who breaks into computers and computer networks. Hackers may be motivated by a multitude of reasons, including profit, protest, or because of the challenge...
, etc. As a result of his supervised release conditions, for three years Kevin Mitnick
Kevin Mitnick
Kevin David Mitnick is a computer security consultant, author, and hacker. In the late 20th century, he was convicted of various computer- and communications-related crimes. At the time of his arrest, he was the most-wanted computer criminal in the United States.-Personal life:Mitnick grew up in...
was unable to act as a consultant for any computer related subject or communicate via email. Christopher Painter, Deputy Chief, of the U.S. Department of Justice's Computer Crime and Intellectual Property Section, has said:
The United States Court of Appeals for the Second Circuit
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
vacated a condition imposed on a child pornography offender that required that "[T]he defendant shall consent to the installation of systems that will enable the Probation office or its designee to monitor and filter computer use on a regular or random basis and any computer owned or controlled by the defendant. The defendant shall consent to unannounced examinations of any computer equipment owned or controlled by the defendant which may result in the retrieval and copying of all data from the computer and any internal or external peripherals and may involve removal of such equipment for the purpose of conducting a more thorough investigation," on the grounds that it was overbroad. However, in a case involving a defendant deemed to be at risk of contacting young children and soliciting sex with them, a total Internet ban was affirmed by the Second Circuit. The court ruled in U.S. v. Peterson:
The United States Court of Appeals for the Third Circuit
United States Court of Appeals for the Third Circuit
The United States Court of Appeals for the Third Circuit is a federal court with appellate jurisdiction over the district courts for the following districts:* District of Delaware* District of New Jersey...
approved a decade-long Internet ban for sex offender. However, a lifetime ban on Internet use was struck down by that circuit. In a case involving a counterfeiter who employed scanner, computer, and printer to counterfeit currency but did not utilize any other devices, and in no way involved or relied upon the internet, electronic bulletin boards, or other networks, the Ninth Circuit struck down a condition that stated, "The defendant shall use only those computers and computer-related devices, screen user names, passwords, email accounts, and internet service providers (ISPs), as approved by the Probation Officer...All computers, computer-related devices, and their peripheral equipment, used by the defendant, shall be subject to search and seizure and the installation of search and/or monitoring software and/or hardware, including unannounced seizure for the purpose of search."
The United States Court of Appeals for the Seventh Circuit
United States Court of Appeals for the Seventh Circuit
The United States Court of Appeals for the Seventh Circuit is a federal court with appellate jurisdiction over the courts in the following districts:* Central District of Illinois* Northern District of Illinois...
overturned a condition that "The defendant shall be prohibited from access to any Internet Services without prior approval of the probation officer," finding that, despite a few child pornography images having been found on the defendant's computer in the midst of a fraud investigation, he did not have "a record of extensive abuse of digital communications that could justify an outright ban."
The United States Court of Appeals for the Tenth Circuit
United States Court of Appeals for the Tenth Circuit
The United States Court of Appeals for the Tenth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* District of Colorado* District of Kansas...
ordinarily applies an abuse of discretion standard of review
Standard of review
In LAW, the standard of review is the amount of deference given by one court in reviewing a decision of a lower court or tribunal. A low standard of review means that the decision under review will be varied or overturned if the reviewing court considers there is any error at all in the lower...
in reference to sentencing decisions, but applies a higher plain error standard when no timely objection to a condition was raised in District Court. In U.S. v. Walser, the 10th Circuit ruled, in reference to a condition prohibiting the defendant from using the Internet without the probation officer's permission, that the "vagueness of the special condition leaves open the possibility that the probation office might unreasonably prevent Mr. Walser from accessing one of the central means of information-gathering and communication in our culture today," but nonetheless affirmed because it was not "persuaded this concern rises to the level necessary to clear the extremely high hurdle set by the plain error standard". This position was reinforced by U.S. v. Zinn, in which the 10th Circuit acknowledged that its position was in disagreement with that expressed by the 3rd Circuit in United States v. Freeman and by the 2nd Circuit in United States v. Sofsky. The decision in the Zinn case was also in contrast to an earlier decision, U.S. v. White, which overturned an Internet restriction. The difference is that in the White case, the condition stated that the defendant "shall not possess a computer with Internet access throughout his period of supervised release," while the conditions imposed in the Walser and Zinn cases allowed the probation officer to grant permission, which the 10th Circuit held "more readily accomplishes the goal of restricting use of the Internet and more delicately balances the protection of the public with the goals of sentencing."
Miscellaneous
An order of probation requiring the defendant to donate a pint of blood to the Red Cross blood bankBlood bank
A blood bank is a cache or bank of blood or blood components, gathered as a result of blood donation, stored and preserved for later use in blood transfusion. The term "blood bank" typically refers to a division of a hospital laboratory where the storage of blood product occurs and where proper...
was ruled to be an unwarranted invasion of the physical person of the defendant. Because of Congress' plenary authority over the exclusion or expulsion of aliens, a court did not have the authority to order as a condition of probation that the defendant, an alien, leave the country. A condition was also struck down that forbid a defendant from causing the conception of any more children other than with his wife unless he was supporting his other children; the court stated, "Short of having a probation officer follow Smith twenty-four hours a day, there is no way to prevent Smith from fathering more children." A condition banning the defendant from watching television, as a means of promoting self-reflection and remorse, was struck down; the court found that "because other amusements are available to him at home, there is no reason to assume that in the absence of televised entertainment he will tend to his conscience. Bello cites radio and the Internet as ways he might spend his time at home without resort to silent introspection. He could add crossword
Crossword Puzzle
For the common puzzle, see CrosswordCrossword Puzzle was the second to last album made by The Partridge Family and was not one of the most popular albums. It was released in 1973 and did not produce a U.S. single. This album was finally released on CD in 2003 on Arista's BMG Heritage label...
s and jigsaw puzzle
Jigsaw puzzle
A jigsaw puzzle is a tiling puzzle that requires the assembly of numerous small, often oddly shaped, interlocking and tessellating pieces.Each piece usually has a small part of a picture on it; when complete, a jigsaw puzzle produces a complete picture...
s, not to mention light reading. For all the record shows or the district court has found, Bello is as likely to occupy his mind by planning his next crime as anything else."
It has been argued that RFID chipping of sex offenders could be political feasible and allowable under the U.S. Constitution.
Appellate review and habeas corpus
Probation or supervised release is considered custody for purposes of federal habeas corpusHabeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
law, and therefore can be challenged under . Probation officers are entitled to qualified immunity
Qualified immunity
Qualified immunity is a doctrine in U.S. federal law that arises in cases brought against state officials under 42 U.S.C Section 1983 and against federal officials under Bivens v. Six Unknown Named Agents, 403 U.S. 388 . Qualified immunity shields government officials from liability for the...
from probationers' due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
claims because probationers cannot claim a property interest in the statutory procedural protections.
Drafting errors
There were legislative drafting errorLegislative drafting error
Drafting errors sometimes occur in legislation. Usually these errors are minor, such as incorrect punctuation or capitalization, and the meaning is unaffected. But sometimes the matter is more substantive....
s in the statute's drug-testing provisions and in the reference to community confinement as an authorized condition of supervised release, but the courts upheld legislative intent
Legislative intent
In law, the legislative intent of the legislature in enacting legislation may sometimes be considered by the judiciary when interpreting the law...
.