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10th Says ‘No Flogging’ Supervised Release Violators – March 30, 2023

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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.

‘YOU MUST BE PUNISHED!’

punishment230330My daughter Leslie spent a year as a Fulbright Scholar teaching in Vladivostok, Russia (back in the days when Russia still held promise as a member in good standing of the benevolent world order). One evening, she was struck by a car whose driver jumped a red light.

It was the kind of automotive negligence that happens the world over, and the driver and his wife were appalled and chagrinned by the mishap, even bundling her into the car and driving her to an emergency room (she suffered a broken leg but nothing worse). Still, the next day, as Leslie lay recuperating in the hospital, her Russian friends urged her to file a police report.

Leslie resisted, because it was a cinch that the driver’s insurance – if he had any – would not begin to pay for the treatment she would need back in the USA (she had to fly home for about six weeks for the reconstruction that her knee required). She hardly saw the point in the paperwork a police report would require. But her Russian friends insisted, arguing, “He must be punished!”

Alas, the societal demand for retribution is hardly limited to Putin’s paradise, as the 10th Circuit reminded us last week.

After Donald Joe Booker, Jr. repeatedly violated the terms of his supervised release, the district court revoked his supervision and sentenced him to 24 months in prison, the maximum time he could get under the statute.

badtrack230330To be sure, Donnie was 87 miles of bad track: While on supervised release after serving his sentence for being a felon in possession of a gun, Donnie was caught for speeding, driving without a license or insurance, and refusing to submit to sobriety testing. He tested positive for amphetamine or methamphetamine use on four separate occasions (and had some meth in his pocket when he was arrested on the revocation warrant), left the Eastern District of Oklahoma without permission on three occasions, failed to tell his probation officer about contacts with law enforcement on three occasions, and failed to appear for drug testing on five separate occasions.

When he was sentenced on the supervised release violation, the district court complained that Donnie “has shown repeated disregard for rules and condition of his supervised release. He has continued to commit new law violations and he has illegally possessed controlled substances, which he acknowledges. He has on multiple occasions failed to report to his law enforcement contact as required by the conditions of his supervision and he has also traveled outside the district of supervision without permission of his probation officer. Based upon these factors, a sentence outside the advisory guideline range is necessary to serve as an adequate deterrent to this defendant as well as others, promote respect for the law, and provide just punishment for the offense, and provide protection for the public.”

Last week, the 10th Circuit vacated Donnie’s sentence.

Badlaw200804Hard cases make bad law. The catch is that when sentencing someone for a criminal offense, the judge must consider the sentencing factors listed in 18 USC § 3553(a), which is a weighty list that includes just punishment for the offense, the need to protect the public, deterrence and the promoting respect for the law.

When sentencing someone who screwed up and violated their supervised release – a term which is imposed to run after release from imprisonment – the district court is required to consider only some of the § 3553(a) sentencing factors, not all of them. Under 18 USC § 3583(e), which governs revocation of supervised release , the court must sentence “after considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).”

“Notably absent from this list,” the 10th noted, “is § 3553(a)(2)(A), which directs courts to consider… 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.”

The Circuit held that “section 3553(a)(2)(A) represents ‘retribution,’ one of the ‘four purposes of sentencing’ that courts must consider when fashioning a sentence during the initial sentencing process.” Here, the district court justified Donnie’s 24-month… “in part as ‘necessary to serve as an adequate deterrent to this defendant as well as others, promote respect for the law, and provide just punishment for the offense, and provide protection for the public.’ By referencing the need to ‘promote respect for the law, and provide just punishment for the offense,’ the district court quoted from § 3553(a)(2)(A), the omitted factor.”

Two weeks ago, the Congressional Research Service issued one of its “Legal Sidebar” reports on supervised release sentencing, in which it noted a deep circuit split on whether retribution may play a role in sentencing on revocation of supervised release. “On one side of the divide,” the report stated, “the U.S. Courts of Appeals for the First, Second, Third, Sixth, and Seventh Circuits have held that federal courts may consider retribution in making revocation decisions. On the other side, the Fourth, Fifth, and Ninth Circuits have concluded that courts either may not consider retribution in these decisions at all or may consider it only to a limited degree.”

To the “nays” you can now add the 10th Circuit.

angels170726We’re not just counting angels on the head of a pin, either. Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman observed that “given U.S. Sentencing Commission data showing over 20,000 supervised release violation hearings taking place every year, there are on average nearly 100 federal defendants at least potentially impacted by this jurisprudential divide every single day in federal courts. SCOTUS really should resolve this matter sooner rather than later if we think some semblance of equal justice is of importance in our federal criminal sentencing systems.

United States v. Booker, Case No. 22-7000, 2023 U.S. App. LEXIS 7312 (10th Cir. March 28, 2023)

Congressional Research Service, Can Retribution Justify the Revocation of Supervised Release? Courts Disagree (March 13, 2023)

Sentencing Law and Policy, Tenth Circuit deepens split over considering retribution in revocation of federal supervised release (March 29, 2023)

– Thomas L. Root

Fifth and 11th Circuits Give and Take on Supervised Release – Update for January 8, 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.

A PAIR OF DECISIONS, GOOD AND BAD, ON SUPERVISED RELEASE

supervisedleash181107Worrying about supervised release may seem a waste of time for inmates more concerned with getting released from federal prison, but virtually everyone with a sentence of less than life will be on federal supervised release sooner or later. A full one-third of those people will have their probation officers seek to revoke their terms (and send them back to prison) before their supervised release term ends.

Supervised release is a term of years, something like parole, imposed after imprisonment. During this period, the released prisoner is subject to a series of conditions – such as holding a job, paying restitution, refraining from new criminal conduct – and reports regularly to a U.S. Probation Officer.

Anthony Foley was on federal supervised release when he was charged with a couple of state drug cases. He neglected to tell his probation officer about them, and – when he was found out – Tony was violated for the failure to report the matter. Tony faced 7-13 months under the supervised release Guidelines. He argued for seven months; the government asked for 13.

The district judge gave him 24 months, saying that Tony’s “criminal history category of five — and his willful failure to notify the probation office within 72 hours of arrest, and I believe, based upon these pending — just pending charges, he’s a continued threat to the community. I believe an upward variance is appropriate.”

Last week, the 5th Circuit reversed. The appellate court held that “a district court errs when it relies on a bare allegation of a new law violation contained in a revocation petition unless the allegation is supported by evidence adduced at the revocation hearing or contains other indicia of reliability, such as the factual underpinnings of the conduct giving rise to the arrest.” Where, as here, “the revocation petition included only bare allegations of new violations of law, and the allegations were not supported by evidence at the revocation hearing and do not have other indicia of reliability,” they were impermissible factors for the district court to consider.”

supervisedrevoked181106Meanwhile, in the 11th Circuit, Jeffrey Hill likewise caught a state drug case while on supervised release. During his revocation proceeding, he filed a motion to suppress evidence he said resulted from an illegal search. The district court ruled that suppression of evidence because of a 4th Amendment violation – the exclusionary rule – does not apply to supervised release revocations.

Last week, the 11th Circuit agreed. Because suppression of evidence imposes “substantial social costs,” including “its toll on ‘the truthfinding process, its incompatibility with the traditionally flexible, administrative procedures of parole revocation, and its frequent necessity for extensive litigation to determine whether particular evidence must be excluded,” the Supreme Court has held the exclusionary rule does not apply in state parole hearings. The Circuit said in light of that, it could see no reason why the exclusionary rule should not apply to supervised release revocation hearings.

United States v. Foley, 2020 U.S. App. LEXIS 61 (5th Cir. Jan. 3, 2020)

United States v. Hill, 2020 U.S. App. LEXIS 51 (11th Cir. Jan. 3, 2020)

– Thomas L. Root

No Running Out the Clock on Supervised Release – Update for May 13, 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.

FLEEING IN PLACE

emily190513Emily Bernges, my high school Latin teacher, taught us that the Latin verb “fugare” means “to flee,” and is the basis of the English word “fugitive.” Based on that, you might think that to be a fugitive, you have to take flight, or at least do something that seems like running from the law.

Not necessarily, as Phillip Thompson found out. He did some federal time last decade, followed by five years of supervised release. The supervised release was not such a big deal to Phil, because he was deported to his native Jamaica as soon as he was released in 2010. Before he left for the islands, Phil was a told that one condition of his supervised release was that if he came back to the USA, he had to promptly report to his probation officer. Because returning to this country after being deported is a federal crime all by itself, you would think that the last thing Phil would want to do if he sneaked back onto the mainland was report to his PO.

You would be right. Phil returned to the USA in 2012, but got deported again about a month later, well before before his PO found out he had been back. When she did learn of it, she filed a violation petition, but Phil was already back in Jamaica and beyond the reach of the Probation Office. But Phil came back in December 2014, five months before his 5-year supervised release term expired, and this time he stayed. Having the foresight to use an alias and obtain a phony driver’s license, Phil flew under the radar for more than two years, during which time he was busily engaged in organizing large-scale marijuana importation and routing the money through bank accounts back to Jamaica (or so the authorities say).

Phil got arrested in 2017, and after his fingerprints ratted him out, his Probation Officer learned he was back. She amended the pending violation petition, and his supervised release was revoked. Phil challenged the district court’s jurisdiction to even hear his supervised release revocation, because supervised release had expired in June 2015. The district court disagreed, saying under the “fugitive tolling” doctrine, Phil was a fugitive from the time he got back to the USA until he was arrested, and his supervised release stopped running during that time.

Last week, the 4th Circuit agreed. As a general rule, the Court said, a district court’s power to revoke supervised release ends when the supervised release term expires, but the term stops running if the defendant absconds from supervised release and thus becomes a fugitive. Phil argued he was not a fugitive under the fugitive tolling doctrine, because only an active and knowing effort to evade adjudication of a supervised release violation petition is sufficient to trigger the fugitive tolling doctrine. He never knew about the July 2011 petition filed against him because he had been deported two months before.

fugitive190513The 4th disagreed. The fugitive tolling doctrine provides that a supervised release term “is tolled when a defendant absconds from supervision.” That is because Congress intended defendants to serve their full supervised release term, and just as an escaped prisoner’s sentence is not credited for the time the prisoner spends out of custody, a supervised release term should not be credited for the time that a defendant, “by virtue of his own wrongful act,” spends out of supervision. Fugitive tolling, the Court said, “prevents a situation in which we reward an absconder for his misconduct, allowing a fugitive defendant to run out the clock on his release term while refusing to submit to supervision.”

Here, Phil did not just come back to the USA and not report, but he used an alias, got phony ID, and admitted he knew he was supposed to report to the PO if he returned. That was enough to show active measures to hide, and to thus make him an absconder.

United States v. Thompson, 2019 U.S. App. LEXIS 14035 (4th Cir. May 10, 2019)

– Thomas L. Root

Chronic Use of “Chronic” Results in Early Supervised Release Termination – Update for July 12, 2018

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JUDGE WEINSTEIN TERMINATES SUPERVISED RELEASE EARLY FOR POT-SMOKING DEFENDANT

weinstein160516We have always considered 96-year old Judge Jack Weinstein to be one of the shining stars of the federal judiciary, and he again has not disappointed us. Noting that marijuana has become increasingly accepted by society and at the same time expressing skepticism at the whole idea of supervised release, Judge Weinstein last week ended a supervised release revocation hearing by finding that while the defendant continued to use marijuana while on supervision, the Judge not only would not revoke his supervised release, but actually terminate supervision early, thus freeing the defendant from supervised release altogether. At the same time, Judge Weinstein pledged he would no longer revoke SR simply because defendants smoked weed.

“Many men and women who have terms of incarceration imposed by this court are seeking to live productive, law-abiding lives, but are derailed by their marijuana addiction. Like many federal trial judges, I have been terminating supervision for ‘violations’ by individuals with long-term marijuana habits who are otherwise rehabilitated,” Judge Weinstein wrote. “No useful purpose is served through the continuation of supervised release for many defendants whose only illegal conduct is following the now largely socially acceptable habit of marijuana use.”

Judge Weinstein pointed out that the trend nationally is in favor of marijuana legalization, that blacks are eight times as likely to be arrested for pot as are whites, and that supervised release law is Draconian in its requirement that all pot must use lead to revocation.

supervisedrelease180713For those who came in late, every felony defendant convicted in the federal system must be sentenced to a term of supervised release after release from incarceration. SR, during which the defendant is under the thumb of the U.S. Probation Office, restricts travel, association, employment, and a wide variety of other freedoms, all in the name of helping the inmate to become a productive member of society.  Not only (and what follows is our opinion, like you could not tell) is supervised release as useless as a trampoline to a grasshopper, but it is counterproductive: a third of all people on supervised release face revocation at least once during their term, seldom for criminal conduct but often for technical violations of the amorphous and vague SR conditions imposed by the courts and administered by probation officers.

In the case in front of Judge Weinstein, Tyran Trotter had served two years of his 3-year SR term, after release from prison on a heroin distribution beef. Tyran had stayed out of trouble for two years, except for chronic pot use. “Many people from all walks of life now use marijuana without fear of adverse legal consequences,” Judge Weinstein wrote. But the criminal-justice system, he went on, “can trap some defendants, particularly substances abusers, in a cycle where they oscillate between supervised release and prison.”

marijuana160818Judge Weinstein’s 42-page opinion was as much an indictment of supervised release as it was federal drug law. He cited a Sentencing Commission study showing that 85% of judges believe designating drug use as a violation of supervised release “is not desirable,” According to the study, 74 percent of the judges said the same about people who failed three drug tests in a year. What’s more, the judge noted, while supervised release is required by statute in less than half of all federal cases, it is reflexively imposed in 95% of all sentences. “The criminal justice ecosystem largely ignores supervised release,” the judge wrote. “Off the record conversations with a number of federal defenders (from both the Eastern and Southern Districts of New York) revealed that the perceived mandatory nature of supervised release is so entrenched that they do not even bother to fight its imposition, or even the length of a term.”

The average length of a supervised release terms has increased from 42 months 20 years ago to 47 months today. “The combination of supervised release being imposed in nearly every case with increasingly long terms has greatly expanded the total supervised population.” As a result, the number of people on SR has increased three-fold in two decades, from 39,000 people in 1995 to nearly 115,000 in 2015.

potscooby180713Studies, the Judge said, show that the “current reflexive use of longer than needed supervised release periods may increase the likelihood of recidivism… While it is not clear exactly why this occurs, possible reasons include the fact that supervising low-risk people and placing them in programs can disrupt their pro-social networks, as well as the fact the increased supervision and the associate conditions increase the likelihood of violations… Extended periods of community supervision can have negative consequences for offenders and the public. One common result is that more offenders are sent to prison for violating the terms of their supervision (known as technical violations) than for new crimes. More than two-thirds of all federal offenders who are revoked from supervised release each year committed technical violations but were not convicted of new crimes.”

This has created the “threat of never-ending supervision,” the Judge said. But not for Tyran. Judge Weinstein set him free from his SR term.

Memorandum Opinion and Order, United States v. Trotter, Case No. 15-cr-382 (E.D.N.Y., July 5, 2018)

– Thomas L. Root

6th Circuit Bans Government Nostrums at Sentencing – Update for October 23, 2017

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BELOW-GUIDELINES SUPERVISED RELEASE VIOLATION SENTENCE IS STILL UNREASONABLE

After a federal inmate serves a prison sentence, he or she begins a period known as supervised release. SR is a fancy term for “parole,” except that unlike traditional parole, it doesn’t reduce a sentence. Instead, by law, SR is tacked on to every sentence, even life sentences (which end only with a pine box).

wencelausDPRK171023While on supervised release, an offender is under the thumb of a U.S. Probation Service officer, who has great latitude to either leave the offender largely alone or impose oppression that makes Kim Jong Un look like Good King Wencelaus. While the object of SR is to assist the offender in his or her reintegration into society, one supervising probation officer candidly told us a few years that his district violates a third of all offenders under their supervision.

Upon violation, an offender may be continued on supervision, have supervision extended, or sent back to prison. Because the standard of proof for a supervision violation is much lower than the “reasonable doubt” standard of criminal law and the evidentiary standards are loosey-goosey by comparison to a criminal trial, SR is a Sword of Damocles for ex-offenders trying to get back on their feet.

Of course, there are those offenders – like Ernie Adams, a 71-year old who has been addicted to opiates for 40 years – who just cannot conform. Ernie was on supervised release after serving a drug conspiracy sentence. Unsurprisingly for his addiction history, he failed drug tests three times in as many weeks, and got violated.

What do you expect of an addicted person? It’s a disease. You might as well demand that a person with bronchitis not cough.

fake171023Nevertheless, continued drug use is forbidden by the conditions governing supervised release, and Ernie’s supervised release was revoked. Ernie’s Guidelines range for his SR violation was 21-27 months. At sentencing, the judge talked extensively about Ernie’s substance-abuse problems and rehab failures. The government argued at sentencing that long-term heroin addicts like Ernie needed 18 months for their brain chemistry to “reset” in order for future treatment to be effective. The court nodded in sage agreement to this scientific stat, but cut Ernie a break by sentencing him to 18 months, three months below the bottom of the Guidelines range.

You’d think Ernie would figure he’d dodged the bullet, but you’d be wrong. Ernie appealed, arguing the sentence was procedurally and substantively unreasonable. Last week, the 6th Circuit agreed.

It turns out that the government’s talk about the 18-month brain “reset” was fake science. The government countered, however, that while what it told the court was as phony as phrenology, that did not matter, because Ernie had no right to the government telling the court the truth. Actually, the government’s argument was a little more nuanced than that, contending that a defendant does not have a due-process right “to be sentenced based on accurate information… beyond the facts of the defendant’s own actions and criminal record.”

The government’s argument was as fake as its “science.” The 6th Circuit said “the due-process right to be sentenced based on accurate information is not limited to information solely about the defendant’s actions and criminal history.” Instead, if the bad science embraced by the sentencing court was an “important factor” in calculating Ernie’s sentence, Ernie’s rights were violated.

pseudo171023The Circuit held that the government’s 18-month brain “reset” was “an unsubstantiated assertion that has the veneer of accuracy due to its supposed status as a product of scientific research.” And it was persuasive: the district court told Ernie it had chosen the sentence length “because you need that long to reset and maybe get another, maybe get another chance at remaining clean and sober.” The Circuit concluded “the district court, therefore, violated Adams’s due-process right when it incorporated this unreliable information in its sentencing decision, and thus this sentence is procedurally unreasonable.”

The 6th Circuit said that while it presumes that a sentence below or within the sentencing range is substantively reasonable, that’s not invariable. Here, Ernie argued that the district court imposed a substantively unreasonable sentence because it to impose a sentence of imprisonment and extended the length of the sentence in order to rehabilitate him. The Circuit noted that the Supreme Court has held that extending a sentence in order to rehabilitate is prohibited, and concluded that the sentence – even though it was below-guidelines – was substantively unreasonable.

United States v. Adams, Case No. 16-2786 (6th Cir., Oct. 11, 2017)

– Thomas L. Root

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Supervised Release: The Neverending Nightmare – Update for January 20, 2017

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WHAT’S IN A WORD?

Bob Cross is doing life by the installment plan. He caught a marijuana case (or marihuana, as the government would put it) 2006, and sentenced to 60 months in prison, followed by four years of supervised release.

groundhog170120In August 2010, Bob got out and started his supervised release term, which – for those of you who have had the enjoyment of crossing swords with the federal criminal justice system – is nothing but glorified parole, and a seemingly endless bad dream to boot. Essentially, during supervised release, an offender has to file a monthly report on a form that is as vague and all-encompassing as the federal criminal code itself, and must adhere to equally spongy conditions. Violating the conditions is as easy as walking out your front door in the morning, leaving an offender’s continued freedom pretty much at the mercy of his or her probation officer (and, of course, the court for which the probation officer works).

You’ve heard the old business aphorism, “The customer is always right?” See how that applies when you’re arguing to a district court that the opinion of a probation officer on whom the court relies for so much – and who is a judicial agency employee to boot – should be overruled. You may as well ask Donald Trump to overrule Melania or Ivanka.

right170120Sometimes, however, the violation is fairly obvious. It was for Bob. During his supervised release term, Bob caught state drug possession and theft cases, both of which of course violated his supervised release conditions.

The district court learned about the drug possession beef first, and revoked his supervised release in April 2013, ordering him to do 8 more months in prison and an additional two years of supervised release. In December 2013, Bob finished the 8 months in the cooler, and resumed his supervised release.

Fifteen months later, the district court finally tumbled to Bob’s 2012 theft conviction, and revoked his supervised release again. Apparently due to the age of the conviction and the fact it could have punished him before, the court sentenced him to a single day in jail and another five years of supervised release.

Bob appealed, arguing that the court had revoked his previous supervised release term when it gave him 8 months in prison, and that because it had revoked it, the court had no jurisdiction to revoke the new term for something – the theft – that had happened in the old term. On Wednesday, the 6th Circuit gave Bob a grammar lesson.

word160208The Circuit explained that, “revocation and termination of supervised release are distinct concepts. Termination discharges the defendant and thereby ends the district court’s supervision of him. Thus, if the district court later discovered that the defendant had earlier violated some condition of his supervised release, the court would lack authority to send him back to prison for that violation qua violation. Revocation, in contrast, means that the defendant must “serve in prison all or part of the term of supervised release. Thus, revocation does not terminate the defendant’s supervised release; quite the contrary, it requires him to serve “all or part” of it in prison… Revocation therefore revokes only the release part of supervised release; the district court’s supervisory authority continues until the defendant’s supervised release terminates or expires.”

The Court held that because the district court’s authority continues throughout an offender’s supervised release term, so too does the court’s ability to police violations of the release’s conditions. Here, Bob’s supervised release term – and the district court’s right to supervise it – had “neither terminated nor expired by June 2015.” Therefore, the district court could revoke Bob’s supervised release a second time based upon its discovery that he had committed a second violation, no matter where in the supervised release term it happened.

sword170120So Bob gets to live under the Sword of Damocles until summer 2020 (unless of course the district court finds another reason to prolong it even more). By then, Bob will be 15 years into a 5-year pot sentence.

United States v. Cross, Case No. 15-5641 (6th Cir. Jan. 18, 2017).

– Thomas L. Root

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