Parole has been abolished in the federal criminal system. However, “supervised release” is almost ubiquitous. What that is, as judges admonish thousands of defendants every day, is a period of time after a prison sentence when there are conditions that you are given and must follow. If you don’t, you go back to prison. My qualm with that is that most attorneys don’t give the conditions a second thought. They are usually, and understandably, concerned with the actual prison sentence imposed (if they can’t get probation). But over the last few years, some conditions have been sneaking into the federal parlance– so-called “standard conditions”– that are unreasonable and overly broad. One that I have (so far) unsuccessfully challenged, is a standard condition stating that “[i]f the probation officer determines that [the defendant] pose[s] a risk to another person (including an organization), the probation officer may require [him or her] to notify the person about the risk and you must comply with that instruction. The probation officer may contact the person and confirm that [the defendant has] notified the person about the risk.”
I have two problems with this condition: (1) it gives the probation officer virtually unbridled discretion in deeming what constitutes a violation, (2) it is way too broad to effectively put a supervisee on notice about that they could be violated for, and therefore could put a lot of people in prison for innocuous conduct. These may be theoretical risks, because we don’t really know until a client is alleged to have violated the condition. But it should still be challenged.
I have recently filed an appeal on this condition, asking the 8th Circuit Court of Appeals to vacate it. Hopefully, that will happen. And the result should be that the condition gets wiped from the “standard conditions” for all defendants. Before I brought this challenge, I wasn’t aware that anyone else had attacked this condition. However, after I filed my appeal, the United States Court of Appeals for the Tenth Circuit vacated the same condition in United States v. Cabral, No. 18-1263 (10th Cir. Jun. 10, 2019).
Although the Tenth Circuit did not address the overly broad/vague challenge, it did conclude that the condition impermissibly delegates judicial authority to the probation officer. And while this holding is not binding on the Eighth Circuit, it still presents persuasive authority supporting the issues raised in my appeal. In Cabral, the Tenth Circuit invalidated a “risk condition” nearly identical to the one in my case, holding that “the risk-notification condition, as imposed by the district court, improperly delegates judicial power to a probation officer.” Id., Slip Op. at 2. The court held that “[b]y tasking Mr. Cabral’s probation officer with determining whether Mr. Cabral poses a “risk” to others in any facet of his life and requiring Mr. Cabral to comply with any order to notify someone of any such risk, the district court delegated broad decision-making authority to the probation officer that could implicate a variety of liberty interests.” Id., at 16. The court noted that the “risk-notification” condition implicated a multitude of liberty interests, including infringing on the fundamental right of familial association. The court also noted that the condition presented an impermissible occupational restriction. After this analysis, the Tenth Circuit unequivocally held that the risk-notification condition “is an improper delegation of judicial power.” Id., at 19.
We will see how the 8th Circuit falls on this issue. However, in the meantime, I encourage federal criminal defense practitioners and defendants to object to the standard condition and preserve the issue for appeal. Who knows, perhaps there might be a circuit-split and the Supreme Court will take up the issue, as it did in another one of my cases from the Southern District of California. See Tapia v. United States, 564 U.S. 319 (2011).