Tag Archives: supervised release

Too Much Frivolity For a Lawyer? – Update for May 9, 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.

APPLES AND ORANGES

noBS190509A long time ago, Congress decided that prisoners filed too many nonsense lawsuits. There was no cost to the prisoner, who always qualified for in forma pauperis status (which meant, among other things, that the prisoner did not have to pay the federal district court filing fee of $400.00 plus). So in 1996, Congress amended 28 USC § 1915, which requires courts to perform what one lawyer I know crudely but accurately calls the “bullshit review.” If after the judge casts his or her practiced eye on the complaint, the court decides that the complaint is utter crap – known in the legal world as “frivolous” – the prisoner will be denied in forma pauperis status. Of course, the inmate can still go forward by paying the filing fee, but for a guy making a quarter an hour, $400.00 buys a lot of Honeybuns at the commissary.

But that’s all in the civil litigation world. If you find yourself behind the criminal 8-ball, things are different. Apples and oranges.

Matthew Didham wanted to appeal the district court’s revocation of his supervised release. He asked for appointment of counsel, because he could not afford to keep paying his retained attorney, who withdrew after Matt was revoked.

The district court turned him down, because Matt had $750 in his commissary account, and therefore, the court reasoned, he could afford the appeal filing fee. Plus, the district judge found, citing 28 USC § 1915(a)(3), Matt’s appeal was frivolous, because he had “not articulated any argument to suggest that the court revoked his supervised release in error.”

Last week, the 7th Circuit reversed, and appointed counsel for Matt. It held that the district court had confused apples for oranges, applying the statute which applies for prisoners’ civil appeals, with the Criminal Justice Act, governing criminal and supervised release appeals. In 28 USC § 1915 cases, the court can deny counsel if the filing is frivolous. But for a supervised release violation, the right to counsel is set out in 18 USC § 3006A “for any person financially unable to obtain adequate representation.” It is not for the district judge to deny where he thinks he was right, and an appeal of his decision must therefore be wrong.

United States v. Durham, 2019 U.S. App. LEXIS 13264 (7th Cir.  May 2, 2019)

– Thomas L. Root

A Toast to Ripeness: Supervised Release Follies – Update for February 19, 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.

FUN AND GAMES WITH SUPERVISED RELEASE

A pair of decisions last week serve as a reminder to federal inmates that if they think prison is frustrating, just wait…

supervisedrelease180713More than one inmate lived in one federal district, but caught his or her case in another. That happened to Randy Pittman. When that happens, the BOP will release the inmate to the federal district in which the crime was committed, not the one in which the inmate lives, unless the inmate convinces the BOP to ask for a transfer of supervision.

With Randy’s prison term set to expire, he asked the district court to grant relocation of his supervised release under 18 USC 3605. There’s nothing unusual about such a request, and Randy justifiably saw no benefit to doing halfway house in Texas when he intended to live with his family in Georgia.

The district court denied his motion as premature because Randy was not yet on supervised release. Randy appealed, but last week the 5th Circuit threw the case out, holding it lacked jurisdiction.

The Circuit held that the district court’s denial of supervised release relocation as being premature was not a final order under 28 USC 1291. Randy argued that the harm he would suffer was real, because forcing him to enter a halfway house in the Texas would undermine his ability “to reintegrate into society.” After all, the halfway house was supposed to let him attain a stable residence, gainful employment, and to prepare for his reentry into society.”

The Circuit did not care. The district court said Randy’s motion was premature. “The best view is that,” the 5th said, is that “the denial of Pittman’s motion is simply not a final, appealable order.”

Of course, it seems that Randy’s harm was immediate, that being a term of halfway house in a place where getting a job, renting an apartment, opening a bank account and getting a current driver’s license made no sense. And it hardly served society either, telling a soon-to-be-released prisoner that he should engage in entirely futile attempts to reintegrate into a society 700 miles from his family. By the time Randy is on supervised release, the damage – an utterly stupid halfway house placement – would be done. The primary question of ripeness is whether the harm asserted has matured sufficiently to warrant judicial intervention. That should have made the issue here, even if it is a collateral order, reviewable.

nobeer180605For David Bell, who was on supervised release, the problem was that the district court has placed special conditions on him that he ““not consume or possess alcoholic beverages or beer, including 3.2% beer, at any time” and that he be at his “place of residence between the hours of 10:00 p.m. and 6:00 a.m., 7 days per week,” unless working.

Dave argued that these had nothing to do with his conviction for marijuana trafficking and money laundering, but the district court said

I’ve had too many defendants that go out and get to drinking, then they get intoxicated and then they go out and violate their supervised release.” As for the curfew, the court said, “And the same reason I put that curfew on there… [T]hey violate their probation, they’re out usually past midnight. They’re out on the prowl, and they get into trouble. They get drinking, then they’re out prowling the streets. Now, there’s no indication you do that. But I’m going to leave it on there because I’m not even going to give you the chance to be tempted by it.

Dave appealed, and last week, the 8th Circuit threw out the conditions. Supervised release conditions must 1 be reasonably related to the sentencing factors set forth in 18 USC 3553(a), involve no greater deprivation of liberty than is reasonably necessary for the purposes set forth in 3553(a); and be consistent with policy statements issued by the Sentencing Commission. What’s more, the sentencing court “must make an individualized inquiry into the facts and circumstances underlying a case and make sufficient findings on the record so as to ensure that the special condition satisfies the statutory requirements.”

The 8th Circuit noted it had previously vacated alcohol bans “where the defendant’s history or crime of conviction” did not support them. Drug convictions alone do not justify such restrictions, and “even repeated marijuana use and light alcohol consumption are not necessarily sufficient to establish dependency.”

supervisedleash181107Here, the Court ruled, the sentencing judge abused his discretion in imposing the condition prohibiting Dave from any alcohol consumption. “Rather than conducting an individualized inquiry into the circumstances of Bell’s alcohol use and drug dependence,” the appellate panel held, “the district court cited its general experience with prior offenders. In fact, the court admitted that there was no indication that Dave drank or prowled the streets.”

As well, the sentencing court abused its discretion in imposing a curfew. Rather than making individualized findings, the court referenced its general experience with offenders and admitted that there was “no indication” this experience pertained to Dave.

The 8th did not “see a reasonable probability that the court would have imposed the condition after an individualized assessment… It is unclear how the curfew is reasonably related to the protection of the public or Bell’s criminal history and rehabilitative and correctional needs given that the conspiracy involved distributing marijuana through the mail and laundering the proceeds.”

United States v. Pittman, 2019 U.S. App. LEXIS 4490 (5th Cir. Feb. 14, 2019)

United States v. Bell, 2019 U.S. App. LEXIS 4155 (8th Cir. Feb. 12, 2019)

– Thomas L. Root

‘Off With Their Heads’: Supervised Release Violations to be Aired at SCOTUS – Update for February 12, 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.

SUPREME COURT TO HEAR SUPERVISED RELEASE CASE WITH FAR-REACHING IMPLICATIONS

Nationally, about a third of all people on supervised release – which is a period of a few years to life after a prisoner is released that is much like parole – get violated. Many of those people are sent back to prison for a term specified in 18 USC 3583(e)(3). The revocation proceeding has a star-chamber quality, employing loosely-goosey evidentiary and procedural safeguards as well as a limp preponderance-of-the-evidence standard instead of reasonable doubt.

thThe revocation hearing often comes down to the Probation Officer, herself an employee of the very court hearing the revocation, telling the court what her investigation into the alleged violation found, with that being enough for the preponderance finding, confrontation clause rights and hearsay concerns be damned.

“Although such violations often lead to reimprisonment, the violative conduct need not [even] be criminal,” the Supreme Court observed 19 years ago in Johnson v. United States. In fact, where the “acts of violation are criminal in their own right, they may be the basis for separate prosecution,” the Court said.

Now, 34 years after supervised release was created as part of the Sentencing Reform Act of 1984, SCOTUS is finally asking the hard questions about revocation procedures. In two weeks, the Court will hear oral arguments in United States v. Haymond, a 10th Circuit decision that held the supervised-release emperor has no clothes. The Tenth ruled that it was “unconstitutional and unenforceable” for a district court to revoke supervised release and impose five more years of prison on a defendant based on finding by a simple preponderance of the evidence that he violated the conditions of his release by knowingly possessing child porn.

The Circuit decision invalidated the parts of 18 USC 3583(k) that required a district court to impose prison based on a preponderance finding that a defendant violated the conditions of his release, even where the violation itself might by not be criminal.

imageA Supreme Court decision upholding the appellate decision in Haymond could have implications for over 150,000 people who are now or will someday be on supervised release. Simple math suggests that 50,000 of them will be violated – itself suggesting a systemic failure in the supervised release program – and a substantial percentage of them will face a return to prison. Not stripping defendants of their liberty, restricted though it is on supervised release, without a finding beyond a reasonable doubt that they violated supervised release seems a small price to exact from a system that fails so many.

Law360, High Court Takes On Supervised Release Revocations (Feb. 4)

United States v. Haymond, Case No. 17-1672 (Supreme Court, oral argument Feb. 26)

– Thomas L. Root

Supreme Court Hears Failure-to-Appeal Argument – Update for September 6, 2018

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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.

SUPREME COURT SEEMS SKEPTICAL OF ATTORNEY RIGHT NOT TO APPEAL; AGREES TO HEAR PAIR OF SUPERVISED RELEASE ISSUES

While it can be dangerous to predict an outcome from the justice’s comments at oral argument, Supreme Court observers are predicting that it seems more likely than not that the Court will rule that a lawyer who unilaterally decides to disregard his or her client’s instruction to appeal provides ineffective assistance of counsel, even where the client has waived appeal rights.

appeal181107Under Strickland v. Washington, in order to establish ineffective assistance of counsel, a petitioner must show the lawyer rendered objectively unreasonable representation, and that there is a reasonable probability that the poor performance caused adversely affected the result of the proceeding. The issues in last week’s Garza v. Idaho case were whether the lawyer rendered deficient performance by refusing to file an appeal, despite his client’s repeated requests and without consulting him, and whether Garza must demonstrate prejudice or whether it is assumed as provided for in the Court’s 2000’s Roe v. Flores-Ortega decision.

Idaho argued there was no prejudice because the state “had already secured the waiver of many, many, many issues, in fact, all of the reasonable issues that could be tried.”

“Well, many but certainly not all,” interjected Chief Justice John Roberts. “They didn’t assure themselves of victory on appeal since there were arguments outside the scope of the agreement, including some that have to be available outside the scope of the agreement,” Roberts explained, alluding to possible claims that the plea and appeal waiver were themselves involuntary.

supervisedrevoked181106In other Supreme Court developments, the Court granted certiorari in Mont v. United States, a 6th Circuit case asking whether a period of supervised release for one offense is tolled under 18 USC 3624(e) during a period of pretrial confinement for a new criminal case, if upon conviction the time is credited toward the defendant’s sentence for the new crime.

A week before, the Court granted certiorari to another supervised release case, United States v. Haymond. Last spring, the 10th Circuit held in that case that 18 USC 3583(k), which requires additional prison time for sex offenders who violate the terms of their supervised release, is unconstitutional, because it takes away the sentencing judge’s discretion and imposes additional punishment on sex offenders based on new conduct for which they had not been convicted beyond a reasonable doubt. The government petitioned for high court review.

SCOTUSblog.com, Argument analysis: Court skeptical that a lawyer may unilaterally countermand client’s instruction to file a criminal appeal (Oct. 31, 2018)

Mont v. United States, Case No. 17-8995 (cert. granted Nov. 2, 2018)

United States v. Haymond, Case No. 17-1672 (cert. granted Oct. 26, 2018)

– Thomas L. Root

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Two Circuits Say Supervised Release Is Not a Guessing Game – Update for October 25, 2018

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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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5TH CIRCUIT SLAPS LIMITS ON RUNAWAY SUPERVISED RELEASE CONDITIONS

Just about everyone serving a federal sentence will find themselves on supervised release sooner or later. Given some of the loosey-goosey SR terms and arbitrary probation officers, it is little wonder that one out of three people on SR end up getting violated.

writingB160425Jonathan Rivas-Estrada had three special SR conditions included in his sentence, that he had to surrender himself for deportation after serving his time, had to give requested financial information to his probation officer, and had to participate in (and pay for) drug testing and treatment. At the end of a long sentencing proceeding, the district judge glossed over those special conditions, which had been in his presentence report and to which Jonathan never objected. While they were not mentioned at sentencing, the special conditions appeared in Jonathan’s written judgment.

Last week, the 5th Circuit said it did not matter what was in his PSR or what he did not object to prior to sentencing. It held that when a defendant had no opportunity to object to special conditions at sentencing (because they were not read by the district judge), any such “unpronounced” special conditions must, upon remand, be stricken from the written judgment.

drinkMeanwhile, in the 7th Circuit, Solomon Smith complained that an SR condition that he refrain from excessive alcohol use was not tailored to his offense (tax fraud) and was vague. The Circuit said he had waived the “tailoring” argument when his trial judge said he had no objections, but it held that the district court’s omission of a definition of what constituted “excessive” rendered the condition unduly vague. The district court originally proposed a BAC of 0.08%, but somehow dropped that from the final judgment. The Circuit said the written judgment should prevent uncertainty over what conditions or version of a condition the district court intend[s] to impose; liberty should not turn on guess-work.”

United States v. Rivas-Estrada, Case No. 17-40033 (5th Cir. Oct. 15, 2018)

United States v. Smith, Case No. 16-3575 (7th Cir. Oct. 16, 2018)

– Thomas L. Root

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We’ve Got the Shorts (Again) – Update for September 25, 2018

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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. Today, a few short takes from last week’s federal criminal news…

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CASE SHORTS

Hobbs Act Robbery “Violent Crime” in Another Circuit: The 1st Circuit last week held that Hobbs Act robbery is a crime of violence under 18 USC 924(c), a statute that sets extra punishment for carrying or using a gun during a crime of violence. The Circuit joins a number of others that have reached the same conclusion.

United States v. Garcia-Ortiz, Case No. 16-1405 (1st Cir. Sept. 17, 2018)

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bathsalt180925DEA Takes a “Bath” in Analogue Case: In a case full of organic chemistry and implications for the regulatory state, the 6th Circuit held that the DEA rules criminalizing the possession of a “positional isomer” of a banned drug require the rule of lenity to be applied. The rule of lenity is a principle of criminal statutory interpretation that requires a court to apply any unclear or ambiguous law in the manner most favorable to the defendant. In this case, the defendant was tried for possessing ethylone, which under the DEA definition was a “positional isomer” of butylone, a scheduled drug. The problem was that under one of several accepted scientific definitions of “positional isomer,” ethylone is not a positional isomer of butylone at all. The Court ruled that where there was more than one definition, and the DEA rules were unclear what definition was to apply, the defendant gets the benefit of the less restrictive definition under the rule of lenity.

United States v. Phifer, Case No. 17-10397 (6th Cir. Sept. 21, 2018)

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Motion Claiming Juror Lied About Her Background is Structural Error: A couple of guys being tried for a pot-growing operation discovered after the trial that one juror’s son had been convicted of being a marijuana trafficker, a fact the juror concealed on her jury questionnaire. When the defendants raised the juror problem in a motion for new trial, the district court ruled there was no proof of prejudice resulting from of the juror’s false statement, because the overwhelming evidence would have convicted the defendants anyway. The 1st Circuit reversed, ruling that a biased juror would “deprive defendants of ‘basic protections’ without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence.” Thus, it is what is known as a “structural error.” Generally, a constitutional error that does not contribute to the verdict is considered harmless, which means the defendant is not entitled to reversal. However, a structural error, one which “affects the framework within which the trial proceeds,” as defined in Arizona v. Fulminante, defies harmless error analysis. When a structural error is raised on direct review, the defendant is entitled to relief without any inquiry into harm. The Circuit granted French a new trial.

United States v. French, Case No. 16-2386 (1st Cir. Sept. 17, 2018)

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polygraph180925Written Judgment Cannot Add Anything to Terms Imposed at Sentencing: Lincoln R. Washington was sentenced on a conviction for failure to register as a sex offender. In the judgment form entering his sentence into the record, the district court added a supervised release term that Linc submit to polygraph testing, a requirement the court had not mentioned at the sentencing hearing. The 2nd Circuit ruled last week that imposing such a duty in the written judgment without doing so during the spoken sentence was an impermissible modification of the spoken sentence, notwithstanding the fact that the Presentence Report had made reference to the polygraph requirement.

United States v. Washington, Case No. 17-2841 (2nd Cir. Sept. 18, 2018)

LISAStatHeader2small– 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

Only a Matter of Time: Supervised Releasees Are Set Up to Fail – Update for June 6, 2018

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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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SUPERVISED RELEASE IS “SHADOW CRIMINAL JUSTICE SYSTEM”

A Federal public defender from Philadelphia last week blasted the statutorily-required supervised release system for pulling “tens of thousands of former inmates back into prison without a fair trial.”

probation180607Noting that one-third of all former inmates on supervised release are violated sometime during their term, author Jacob Schuman wrote that famous former inmate and now law professor Shon Hopwood told him that despite his going to law school and writing a book while on supervised release, there was still “a prevailing attitude among the probation officers that it was only a matter of time before I messed up and went back.” Hopwood said that probation officers “seemed more interested in policing violations than offering support.”

Schuman writes that supervised release “is incredibly strict, and that its reach is vast. Between 2005 and 2009, federal judges imposed supervised release in approximately 300,000 cases, with an average term lasting over 40 months. By 2010, more than 10,000 federal inmates were locked up for violating their supervised release.

Schuman called for Congress to limit supervised release only to those defendants who need it most and by reducing the punishments for violations,” and on judges to “stop sending people to prison for violations that are merely symptoms of an underlying drug addiction, not bad intent. To encourage this practice, Congress should end mandatory revocations for drug possession and prohibit imprisonment for drug-related technical infractions.”

Our experience with the arbitrary and standardless supervised release system is consistent with Schuman’s article. (Example: Any contact with a person with a criminal record – estimated to be one out of three American adults – is to be reported to the Probation Officer, an impossible standard to meet but one that can easily be used to violate).

Any system that reincarcerates one out of three participants has a problem, and it’s not with the people being supervised.

The New Republic, America’s Shadow Criminal Justice System (May 30, 2018)

– Thomas L. Root
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“Early Termination? Dilly Dilly!” – Update for December 20, 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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DISTRICT JUDGE MUST CONSIDER 3553 SENTENCING FACTORS WHEN DECIDING EARLY SUPERVISED RELEASE TERMINATION

If you’re familiar with the phrase “Dilly Dilly,” you can thank Bud Light for turning the phrase into a cultural phenomenon. The company ads have gone viral thanks to constant appearances during commercial breaks in NFL and college football games. 

Anheuser-Busch InBev Chief Marketing Officer Miguel Patricio admits that  “‘Dilly Dilly’ doesn’t mean anything. That’s the beauty of it. I think that we all need our moments of nonsense and fun. And I think that “Dilly Dilly,” in a way, represents that.”

As a substitute for a longer, reasoned response, “dilly dilly” works. Used in lieu of an explanation, it’s not so welcome.

dilly171220After a federal defendant serves a prison term, he or she must then complete a term of supervised release, a post-incarceration period during which the defendant is under the thumb of a U.S. Probation Officer. The PO controls where the defendant lives, who he or she associates with, where he or she travels or works, even what he or she buys. Violation of the terms of supervised release – not necessarily commission of a crime – can land the defendant back in prison, once again disrupting his or her life and the lives of loved ones.

One of the few positive nuggets found in the dross of the supervised release statute is found in 18 USC 3583(e)(1), which lets an ex-inmate on supervised release get off paper after a year. Those defendants who know about the provision at all think that whether the court will cut them loose is up to whether the judge has indigestion from lunch or, if the defendant is fortunate, whether the probation officer got lucky the night before. Even POs are not immune: we have had one tell us that the judge will not grant a motion unless it is filed by the Probation Officer, and another told us she refuses to ever agree to early termination.

Under a criminal justice system governed by laws instead of caprice, we should expect more.

more171220Anthony Johnson expected more. He did about 20 years before the Supreme Court’s Johnson decision knocked his 22-year Armed Career Criminal Act sentence back to the 10-year maximum it should have been all along. So with having served seven years more than the law required, having gotten a solid job, joined a church, and completed a squeaky-clean year on SR, Anthony filed a 3583(e)(1) motion to have his supervision terminated.

dillyshirt171220The judge denied his request in a one-sentence handwritten order on page one of Anthony’s motion, without so much as even asking the PO for his views or requiring the government file an opposition. He might as well have written “Dilly Dilly” in the margin.

Anthony expected more, and so he appealed to the 11th Circuit. Last week, the appellate panel reversed the district court.

The Circuit said that a 3583(e)(1) motion cannot be denied on a whim. Instead, the district court is required to apply the same 18 USC 3553(a) sentencing factors to a termination motion as it is supposed to have used in sentencing the ex-inmate to begin with. Given that Anthony had the statutory right to appeal denial of a motion to terminate SR, the 11th said, his district court was obligated to explain its decision to deny early termination in terms of the sentencing factors – the nature the offense, history of the defendant, the need for the sentence to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense – that the court should have used 21 years before when it locked him up.

The district judge will get another whack at Anthony’s early termination motion, this time explaining his decision by applying the 3553 sentencing factors.

United States v. Johnson, Case No. 17-12577 (11th Cir. Dec. 15, 2017)

– Thomas L. Root

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Can You Find Me Now? – Update for December 5, 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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PRIVACY IN THE SMARTPHONE AGE

Waldo171205The Supreme Court heard oral argument last Wednesday in Carpenter v. United States, an important criminal case asking whether prosecutors may use cellphone location records against a defendant when the records were obtained from cellphone companies without a warrant.

The more basic question is whether personal information collected by third parties (often without one’s consent or even knowledge) remains private to the extent that the 4th Amendment requires a search warrant before the government swoops in to commandeer it.

Cellphones send signals to the nearest cell towers as long as the phone is on, even when no call is being made. Cellphone companies store records of the tower to which a cellphone is linked for up to 18 months. By stringing together 18 months of cell tower records, one can easily build a historical record of just about everywhere one was for the past year and a half. Scary.

For robbery suspect Tim Carpenter, the data obtained by the government without a warrant showed he was in the vicinity of several Radio Shack locations right at the time those stores were being robbed (of smartphones, ironically enough). We call that location data “circumstantial evidence,” but – contrary to popular belief – circumstantial evidence is perfectly good evidence, and in Tim’s case, it was good enough to convict. Tim got sentenced to a mere 116 years.

radioshack171205At oral argument, the Supreme Court seemed sympathetic with the idea that information in the hands of a third party may nevertheless be so personal that a search warrant is required before it is retrieved. At the same time, the Court was puzzled as to how to frame a rule to cover the situation. As Justice Stephen Breyer put it at one point, “This is an open box. We know not where we go.”

Even if the Court does hold that cellphone location records required a search warrant to obtain, the holding probably would not help people who have already been convicted. The decision would be a new constitutional rule of criminal procedure, but in all likelihood it would not be a “watershed” rule that would be retroactive for convictions that were already final.

... except when it's not.
... except when it’s not.

What’s more, even if the location data is held to be protected by the 4th Amendment, incarcerated people who will someday be on supervised release should recognize that their cellphones – which now more than ever contain the user’s entire life story – are not private. In a decision last week affirming Valentino Johnson’s felon-in-possession conviction, the 9th Circuit held that a warrantless search of his cellphone was permissible because he was on parole.

The Circuit said parole is different from probation, because it is akin to actual imprisonment. “On the ‘continuum’ of state-imposed punishments,” the Court said, “parolees appear to hold the most limited privacy interests among people convicted of a crime but are not actually imprisoned.” Although the case relates to state parole, its analysis would apply equally to supervised release.

SCOTUSBlog.com, Argument analysis: Drawing a line on privacy for cellphone records, but where? (Nov. 29, 2017)

United States v. Johnson, Case No. 16-10184 (9th Cir. Nov. 27, 2017)

– Thomas L. Root

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