Tag Archives: non-delegation doctrine

One Court Gives, Another Takes on Supervised Release – Update for February 26, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

P.O. KNOWS BEST, AND OTHER STORIES

A pair of supervised release condition cases last dramatically broadened defendants’ protections against probation officers running amok, but greatly narrowed the window defendants have to challenge those conditions.

supervisedrelease180713First, a little background: In the Sentencing Reform Act of 1984, Congress decreed that virtually all persons convicted of a federal criminal offense who were sentenced to prison would also serve a term of supervised release – during which they would be subject to limitations on travel and association, to regular reporting requirements, and to oversight by a probation officer – after the prison sentence ended.

Thus, supervised release is similar to what used to be parole. The conditions of supervised release are imposed by the district judge at sentencing, at which time the defendant – focused entirely on the impending prison term – hardly ever pays attention to the many ambiguities and indignities that the supervised release terms (a number of which are of dubious constitutionality) will impose on him or her after prison is but an unpleasant memory.

Now back to the live action: One of the supervised release conditions imposed on Shawn Lee, who was convicted of settling meth, prohibited him from “knowingly meeting, communicating, or otherwise interacting with any person whom she knows to be a convicted felon… unless granted permission to do so by the probation officer.” He appealed the supervised release condition, arguing that it was an improper delegation of Article III power by the court to the probation officer, and that – because Shawn’s two sons were also convicted felons (it appearing to run in the family) – it meant the PO could keep Shawn from seeing his own offspring.

Federal judges are known as “Article III judges,” because they are appointed by the president and confirmed by the Senate under Article III of the constitution, which give them (and only them) the power and duty of imposing punishment on a defendant. While an Article III judge may task a probation officer (who is not an Article III judge) with “performing ministerial acts or support services related to the punishment imposed,” the non-delegation rule prohibits the judge from allowing a probation officer to decide the nature or extent of a defendant’s punishment.”

supervisedleash181107Last week, the 7th Circuit ruled the supervised release condition went too far. “The probation officer’s future task, then, is not merely to manage or supervise, but to determine whether, when, and how a particular component of Lee’s punishment is imposed.” The condition “anoints the probation officer with the sole authority for deciding if” Shawn can even see his own kids.

“Article III does not confer upon the probation officer the authority to release a convict from a component of his or her sentence, either,” the court said. “The clause ‘unless granted permission to do so by the probation officer’ violates this principle and must be stricken… only the district judge can permit or deny association.”

Supervised release conditions are usually chock-a-block with delegations of power to the PO. This decision suggests that most of those are constitutionally flawed. But before inmates fire up their law library typewriters, they should consider a 6th Circuit decision, also from last week.

Robert Faber complained that his supervised release conditions did not let him live with his Wiccan religion “spouse.” He filed an 18 USC § 3583(e)(2) motion to modify the condition, arguing it violated the Religious Freedom Restoration Act.

The district court denied the motion, and Bob appealed.

Last week, the 6th Circuit held that it lacked jurisdiction. Under § 3583(e)(2), a district court may modify or rescind a condition of supervised release after considering certain enumerated factors, including “the circumstances of the crime, the characteristics of the defendant, deterrence, protecting the public, providing the defendant with training and education, and others,” the Circuit said. “Not included: illegality of the condition.”

time161229Under the Sentencing Reform Act of 1984, the right to challenge an illegal sentence under F.R.Crim.P. 35(a) was cut, requiring defendants to move for such relief within just 14 days after sentence. “Construing § 3583(e)(2) as allowing district courts to eliminate an allegedly illegal condition at any time would disregard the plain text of the statute and frustrate Congress’s intent to encourage timely challenges.”

Bob could have appealed the condition, claiming illegality. He could have filed a timely Rule 35(a) motion. But he did not. He can argue under 18 USC § 3582(e)(2) that the supervised release condition should be set aside for any number of reasons, but the condition’s illegality is not one of them.

United States v. Lee, 2020 U.S. App. LEXIS 4944 (7th Cir. Feb. 18, 2020)

United States v. Faber, 2020 U.S. App. LEXIS 5063 (6th Cir. Feb. 19, 2020)

– Thomas L. Root

Is Another Gundy in the Wings? – Update for December 3, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

CHANGE IN THE WIND?

change191203The Supreme Court narrowly upheld a law last June that, in the dissenting words of Justice Neil Gorsuch, “hand[ed] off to the nation’s chief prosecutor the power to write his own criminal code.” Last week, Justice Brett Kavanaugh spoke up in support of Gorsuch.

The June ruling in Gundy v. United States, a case that centered on the Sex Offender Registration and Notification Act, required convicted sex offenders to register, check in periodically in person, and share personal information with the authorities. SORNA gives the Attorney General “the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter.” In other words, Congress gave the AG a blank check when it came to dealing with the estimated 500,000 individuals whose convictions predate SORNA’s passage.

And that’s the issue, one that reaches far beyond SORNA: the delegation of legislative authority to a government agency. Gorsuch thought SORNA combined the lawmaking powers of Congress with the law enforcement powers of the executive, and then gave those combined powers to a single federal official. For the Supreme Court to let that outcome stand, Gorsuch argued, marks “the end of any meaningful enforcement of our separation of powers.”

Blank Bank and Credit Union cheque with space for your copy.Kavanaugh took no part in Gundy, leaving some court watchers to wonder abOut how he might have ruled. He answered that question last week in a statement on denial of certiorari in Paul v. United States, another separation of powers case. Kavanaugh praised “Justice Gorsuch’s scholarly analysis of the Constitution’s nondelegation doctrine” in Gundy, noting that this “thoughtful” dissent “raised important points that may warrant further consideration in future cases.”

The future case has yet to arrive at the Supreme Court, but Kavanaugh’s statement nevertheless is good news for people suffering when the Bureau of Prisons interprets good time statutes, RDAP statutes and the First Step Act to achieve tortured results that are now accepted without question by courts.

Reason, Kavanaugh Joins Gorsuch in Fight To Revive Nondelegation Doctrine (Nov. 25)

Paul v. United States (Kavanaugh, J., concurring), 2019 U.S. App. LEXIS 35706 (Supreme Ct., Nov. 25, 2019)

– Thomas L. Root

District Judge Cannot Delegate Pornography Access Decisions to Probation Officer – Update for Thursday, September 28, 2017

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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LEAVE ADULT PORN TO THE JUDGE

Under federal law, every criminal sentence of imprisonment also includes a post-release period of “supervised release,” which is really just a fancy term for probation. The courts like to describe supervised release in soaring terms, that it is “the decompression stage between prison and full release” and “serves complementary goals of protecting the public and re-habilitating an offender…”

jiggly170928The 30-yard view always looks better. Down in the trenches, the man or woman on supervised release (usually called the “offender”) is subject during its 3-year-to-infinite term to a series of conditions which share the unfortunate trait of being as amorphous as Jello, all interpreted by a probation officer whose relationship with the court would require the judge’s recusal in any other situation.

Squishy conditions? For example, the ex-offender “shall not associate with any person convicted of a felony unless granted permission to do so by the probation officer.” One out of 15 working-age adults is an ex-felon, and “associate” pretty much means whatever the probation officer says it means. So that guy you talked to at the bar? He’s a felon, whether you know it or not, and you probably just associated with him. This is hardly hyperbolic: we have had more than one probation officer tell us that “association” and “contact” are the same thing.

Another standard condition requires the defendant to “notify third parties of risks that may be occasioned by the defendant’s criminal record or personal history or characteristics, and shall permit the probation officer to make such notifications and to confirm the defendant’s compliance with such notification requirement.” And who interprets when such notification is needed, and to what extent? You guessed it.

And have you ever wondered why former inmates have trouble getting jobs? Or into education programs? Imagine the wet blanket the P.O. can throw over any job prospect simply by fiat that the inmate bare his or her soul to the company’s HR manager.

If a defendant is deemed by a probation officer to have violated a condition of supervised release, he or she will in all likelihood end up before the district court, where hearsay can be used to return the offender to prison on no more than a preponderance of the evidence (which may reasonably be translated as “the P.O.’s ‘say-so’). That’s unsurprising: after all the defendant has already been convicted beyond a reasonable doubt of the underlying offense, so a supervised-release violation may be considered to be little more than a sentencing.

The degree of control and discretion that supervised release confers on a probation officer is breathtaking to someone who has never been subject to its strictures. The defendant’s residence is subject to search without a warrant, the defendant’s travel outside of the federal district is subject to the P.O.’s approval (and many districts aren’t that large), and the defendant is required to report to the P.O. as often as the P.O. may require. A Chief Probation Officer in one federal district told us several years ago that his office “violated” one-third of all of the people supervised by his office.

emperor170726For those reasons, we’re always gratified on those rare “emperor-has-no-clothes” moments when a court of appeals acknowledges the obvious, that a condition of supervised release impermissibly delegates the judge’s duties to a functionary.

The frontier of supervised release litigation these days is for individuals convicted of sex offenses (most often, downloading child porn). Due in large part to the junk-scientific belief that sex offender recidivism is 80% (where it actually is somewhere like 3%), courts have heaped on supervised release restrictions. And given the tragic news from Los Angeles today that 91-year old exhausted rooster and porn pioneer Hugh Hefner died in his silk smoking jacket last night, it is only fitting that we look at a case from Hugh’s hometown of Chicago that deals with access to perfectly lawful (if a bit tasteless) adult porn.

Hef170928In today’s case, a district court imposed on Rick Wagner a special condition of supervised release that permitted the “sex offender treatment provider” to restrict his access to adult pornography. Rick argued to the 7th Circuit that the condition was an improper ban on him, as there is no evidence establishing a connection between his viewing lawful adult pornography and engaging in unlawful sexual activity with minor females.

Earlier this week, the 7th agreed the condition was improper but disagreed that it was an outright ban. “Instead,” the Court said, “the condition delegates the determination of whether a ban will be imposed to a sex offender treatment provider (“treatment provider”). But, Article III judges lack constitutional authority to delegate the duty of imposing a defendant’s punishment to a non-Article III judge, such as a probation officer or treatment provider.” The Court cited an earlier holding that “terms should be established by judges ex ante, not by probation officers acting under broad delegations…”

delegation170928The Circuit said that when determining whether a supervised release condition violates the non-delegation rule, “we distinguish between permissible conditions that merely task the probation officer with performing ministerial acts or support services related to the punishment imposed and impermissible delegations that allow the officer to decide the nature or extent of the defendant’s punishment.” A condition requiring a defendant to attend treatment as approved by the probation officer is not a problem: the court has ordered the treatment, and merely has the P.O. handle “the details and supervision of the program.” But it is a different matter altogether when treatment is ordered “as deemed necessary by probation”: there, the condition is a delegation of the underlying judgment of whether the condition will be imposed at all.

Here, the 7th Circuit said, the district court did not impose a ban on Rick’s access to adult pornography itself because – based on the utter lack of evidence supporting imposition of the condition – it could not. Instead, it did an end run around the matter by delegating the decision of whether “adult pornography should be restricted or denied” to a probation officer or treatment provider. The Court ruled, “This is an impermissible delegation of the district court’s Article III authority to determine the nature” of Rick’s punishment.”

United States v. Wagner, Case No. 15-3265 (7th Cir., Sept. 25, 2017)

– Thomas L. Root

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