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TAKE MY WIFE… PLEASE

Almost everyone (us included) discusses federal criminal sentences in terms of months of incarceration. Although every imprisonment is followed by a statutorily-required term of supervised release, we tend to treat that as an afterthought.

It’s not. Rather, supervised release is one of those ideas that is great political theater and a great job creator for the United States Probation Office. As far back as 1994, public defenders observed that “supervised release, as it now operates, is far different from what Congress intended… What was originally designed to assist re-integration into the community is instead facilitating reincarceration.” Two years ago, a senior officer in the Probation Office for the Northern District of Ohio publicly stated that a third of all people his office supervised would be violated during their term of supervised release, a figure that suggested a failure of the system rather than a failure of the ex-offenders.

There appears to be little research on the effectiveness of supervised release, permitting us to speculate that system-wide, it provides as few useful services to ex-offenders and as many snares for the unwary as our own observations and anecdotal evidence suggests. Primarily, supervised release focuses on collecting restitution payment from ex-offenders on pain of revocation and re-imprisonment. Think of probation officers as debt collectors who can jail debtors who don’t pay enough.

But occasionally, even we – as jaded as we are – can be awed by the majesty of the arrogance of supervised release. Today’s case is one of those examples. In 2009, Cindy Hobbs and her husband were convicted of the quintessential white-collar offenses of identity theft and bank fraud conspiracy. Cindy did her 56 months, and was released. Her husband served 80 months. On supervised release, they owed a rather paltry $18,000 in restitution.

When Cindy started out on supervised release, she had no problems. But after a year, her husband was released. Cindy committed the unpardonable supervised release sins of moving and quitting her McDonald’s gig without telling her PO, of not showing up for a urine sample, and of no longer making her monthly restitution payments.

Although Cindy’s probation officer did not establish she had had any contact with her husband since his release, the government decided that he was the problem, and the district court agreed. “Ms. Hobbs was doing very well on supervision when she was living independently and Mr. Hobbs was still incarcerated,” the judge held. “And then, this contact occurs with her spouse, and those positive steps forward cease and, in fact, she absconds from supervision. That time line seems to the court to be instructive.” The court gave her 30 days in jail, reimposed her supervised release for another 3½ years, and ordered her to have no contact with her husband for the remainder of the supervised release term.

Two days ago, the 8th Circuit reversed the no-contact order. To be sure, a sentencing judge is afforded wide discretion when imposing terms of supervised release, the Court held, but special supervised-release conditions “must reasonably relate to the nature and circumstances of the offense, the defendant’s history and characteristics, deterring criminal conduct, protecting the public, and promoting the defendant’s correctional needs.”

The problem with the district court’s draconian no-contact order is that marriage is one of those constitutional things: the right to a marital relationship is a substantive due process right under the 14th Amendment ever since Loving v. Virginia. The Court of Appeals said “we are particularly reluctant to uphold sweeping restrictions on important constitutional rights.”

The Court of Appeals acknowledged that Cindy and her hubby had been “criminals in concert.” But that did not justify the “sweeping condition” imposed here. The Circuit observed that “nothing in the record shows that Hobbs’s husband influenced her to defy her release conditions… The timeline-based decision was pure speculation or assumption.”

The 8th said the “evidence did not justify effectively divorcing Hobbs from her husband during supervision to achieve any valid sentencing purpose… The state is inserting itself into Hobbs’s marital relationship in an overly broad way, and the condition thus involves a greater deprivation of liberty than is reasonably necessary.”

Because the district court’s condition was overbroad, the Court struck it down without reaching the constitutionality question, but any reader of the decision will conclude that the appellate panel believed it to be a due process violation.

United States v. Hobbs, Case No. 16-1956 (8th Circuit, December 14, 2016)