The Second Circuit finally found a condition of supervised release it didn’t like in United States v. Reeves. Via Eugene Volokh,
But this decision does open the door to consideration of the conditions of supervised release that both extend into the ordinary affairs of people, as well as give unfettered discretion to probation officers to make demands on their charges upon pain of violation. For the judge imposing the condition, it may be a significant and deliberately imposed restriction, included with the best of intentions. But who decides?
Consider, for example, a rather typical condition of supervised release (or probation), that the defendant receive therapy if the probation officer believes it appropriate. Are probation officers competent to diagnose defendants? Yet they are placed in a position to command that a defendant receive psychiatric treatment, including revealing his inner thoughts or being medicated. If the defendant fails to do so, whether because he lacks the financial ability to comply or disagrees with the need, he risks being violated for the mere disobedience to the command and further incarceration.
Given the current obsession with sex offenders, and particularly the public’s disdain for any rights (including associational) they may have, the inclusion of a condition (such as the one by EDNY Judge Nicholas Garaufis in Reeves) doesn’t seem terribly surprising. Granted it was done in a particularly flippant manner, in that it was neither requested by the government nor subject to due process at the sentence, but even if it had been raised during sentence and the defense was given the opportunity to challenge it, it might well have been imposed nonetheless.
The language of the condition suggests that Judge Garaufis sought to limit the bleeding somewhat. It only applied to significant romantic relationships. By making it conditional, the court made it unconstitutionally vague. So would it have been acceptable if the condition included all romantic relationships? Still too vague. What about any relationship involving any sexual contact whatsoever? Aside from President Clinton, this doesn’t seem too vague for a person of reasonable intelligence to comprehend. Even a probation officer should be able to determine compliance (assuming he’s got some way to figure out who the defendant is courting).
If the kiddie porn collector, even one who had otherwise never laid hands on a child or had any cognizable psychological impulse to do so, became involved with my daughter, you can bet that I would want to know. And you can similarly bet that I would, supervised release condition or not. It’s just how I roll.
If the logic holds true, that anyone who has a conviction that might raise a concern for someone with whom they subsequently start a romantic relationship, then shouldn’t notification become a standard condition of release? But if that so, then we are branding them with the scarlet letter, and we are effectively precluding them from establishing relationships following a conviction by forcing them to “disclose” their wrong-doing at a time when its abundantly likely to be premature, to kill the opportunity to establish the type of trust and feeling that might cause a person to trust another despite having been convicted of a crime.
If a person on supervised release harms someone, and particularly if the person is convicted of a crime relating to sex and children, and the harm is to a child, I would anticipate the townspeople storming the courthouse, pitchforks and torches in hand. Should there be a condition of disclosure? And if so, should it be left to probation officers to decide if, when, how? It’s a disastrous recipe, but it’s not entirely crazy either.
This appeal requires us to consider the validity of a condition of supervised release [following a prison term for possessing child pornography] that obligated Reeves, upon entry into a “significant romantic relationship,” to notify the United States Probation Department and to inform the other party to the relationship of his conviction. We conclude that the condition is unduly vague and not “reasonably necessary” to achieve the objectives of 18 U.S.C. § 3553(a)(2)….The court easily disposed of the fact that no person of reasonable intelligence has a clue what “significant romantic relationship” means, and the technical aspects of its inclusion in the formal judgment but never having been raised during the sentence. Similarly, given the facts of the case, where the defendant was initially investigated for the theft of social security funds, which resulted in finding a cache of child pornography (bet you didn’t know that theft of social security funds is a gateway crime for kiddie porn), that the condition failed to bear even an arguable relationship to any legitimate sentencing objective. Eugene discusses these issues fully, and no need to revisit them here.
But this decision does open the door to consideration of the conditions of supervised release that both extend into the ordinary affairs of people, as well as give unfettered discretion to probation officers to make demands on their charges upon pain of violation. For the judge imposing the condition, it may be a significant and deliberately imposed restriction, included with the best of intentions. But who decides?
Consider, for example, a rather typical condition of supervised release (or probation), that the defendant receive therapy if the probation officer believes it appropriate. Are probation officers competent to diagnose defendants? Yet they are placed in a position to command that a defendant receive psychiatric treatment, including revealing his inner thoughts or being medicated. If the defendant fails to do so, whether because he lacks the financial ability to comply or disagrees with the need, he risks being violated for the mere disobedience to the command and further incarceration.
Given the current obsession with sex offenders, and particularly the public’s disdain for any rights (including associational) they may have, the inclusion of a condition (such as the one by EDNY Judge Nicholas Garaufis in Reeves) doesn’t seem terribly surprising. Granted it was done in a particularly flippant manner, in that it was neither requested by the government nor subject to due process at the sentence, but even if it had been raised during sentence and the defense was given the opportunity to challenge it, it might well have been imposed nonetheless.
The language of the condition suggests that Judge Garaufis sought to limit the bleeding somewhat. It only applied to significant romantic relationships. By making it conditional, the court made it unconstitutionally vague. So would it have been acceptable if the condition included all romantic relationships? Still too vague. What about any relationship involving any sexual contact whatsoever? Aside from President Clinton, this doesn’t seem too vague for a person of reasonable intelligence to comprehend. Even a probation officer should be able to determine compliance (assuming he’s got some way to figure out who the defendant is courting).
If the kiddie porn collector, even one who had otherwise never laid hands on a child or had any cognizable psychological impulse to do so, became involved with my daughter, you can bet that I would want to know. And you can similarly bet that I would, supervised release condition or not. It’s just how I roll.
If the logic holds true, that anyone who has a conviction that might raise a concern for someone with whom they subsequently start a romantic relationship, then shouldn’t notification become a standard condition of release? But if that so, then we are branding them with the scarlet letter, and we are effectively precluding them from establishing relationships following a conviction by forcing them to “disclose” their wrong-doing at a time when its abundantly likely to be premature, to kill the opportunity to establish the type of trust and feeling that might cause a person to trust another despite having been convicted of a crime.
If a person on supervised release harms someone, and particularly if the person is convicted of a crime relating to sex and children, and the harm is to a child, I would anticipate the townspeople storming the courthouse, pitchforks and torches in hand. Should there be a condition of disclosure? And if so, should it be left to probation officers to decide if, when, how? It’s a disastrous recipe, but it’s not entirely crazy either.
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