United States v. Siegel

• Decision Date: 29 May 2014
• Docket Number: Nos. 13–1633,13–1767.,13–1640,s. 13–1633
• Citation: 753 F.3d 705
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Shawn M. SIEGEL, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Haywood Norfleet, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

753 F.3d 705

UNITED STATES of America, Plaintiff–Appellee,

v.Shawn M. SIEGEL, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Haywood Norfleet, Defendant–Appellant.

Nos. 13–1633, 13–1640, 13–1767.

United States Court of Appeals, Seventh Circuit.

Argued April 8, 2014.

Decided May 29, 2014.

Joseph H. Hartzler, Office of the United States Attorney, Springfield, IL, for Plaintiff–Appellee.

Johanna M. Christiansen, Office of the Federal Public Defender, Peoria, IL, for Defendant–Appellant.

Before POSNER and TINDER, Circuit Judges and LAWRENCE, District Judge.^*

POSNER, Circuit Judge.

We have consolidated these two criminal appeals because (with an exception discussed at the end of the opinion) both challenge only conditions of supervised release, imposed by the district court, and because the challenges raise closely related issues concerning such conditions. The issues ramify far beyond these two cases, however, which exemplify common but largely unresolved problems in the imposition of such conditions as a part of federal criminal sentencing.

Defendant Siegel was convicted of child sexual abuse, and the conditions of supervised release imposed on him—all for the entirety of his life remaining upon completion of his prison sentence—include a ban on the possession of legal or illegal material that “contains nudity” and the use any mood-altering substance, and a requirement that he undergo a sexual-offender treatment program. Defendant Norfleet was convicted of distributing illegal drugs. The conditions of supervised release imposed on him (for an eight-year period commencing with his release from prison) include a ban on the use of mood-altering substances and on excessive use of alcohol, and a requirement that he undergo substance-abuse treatment and cognitive behavioral therapy. These are only a few of the discretionary conditions of supervised release imposed on the two defendants.

The Sentencing Reform Act of 1984 replaced parole for federal crimes with supervised release. 18 U.S.C. § 3583. Granted in the discretion of the federal parole board after a convicted defendant began serving his sentence, parole allowed him to be released before the expiration of his prison term, on conditions (coterminous with that term) designed to reduce the likelihood of his committing further crimes. In contrast, supervised release (a form of what is called “community supervision,” see, e.g., Leanne Fiftal Alarid, Community–Based Corrections (9th ed.2013); Edward J. Latessa & Paula Smith, Corrections in the Community (5th ed.2011)) entails restrictions imposed at sentencing that don't take effect until the defendant is released from prison. It thus lengthens his sentence, unlike parole. On supervised release generally, see U.S. Sentencing Commission, Federal Offenders Sentenced to Supervised Release (July 2010), www. ussc. gov/ sites/ default/ files/ pdf/ training/ annual- national- training- seminar/ 2012/ 2_ Federal_ Offenders_ Sentenced_ to_ Supervised_ Release. pdf (visited May 27, 2014, as were the other websites cited in this opinion).

Apart from a handful of conditions required by the Sentencing Reform Act itself, see section 3583(d) and U.S.S.G. § 5D1.3(a), conditions of supervised release are discretionary. Some of the discretionary conditions are designated as “standard,” §§ 5D1.3(c); others are called “special conditions” of supervised release, §§ 5D1.3(d)-(e), and are recommended for particular offenses. The list of conditions is not intended to be exhaustive; sentencing judges can impose conditions of their own devising. All discretionary conditions of supervised release must, however, comply with overall federal sentencing policy as stated in 18 U.S.C. § 3553(a), especially subsection (a)(2), which requires the judge to consider “the need for the sentence imposed—(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.” Conditions of supervised release are of course part of the sentence.

Unfortunately the directives in section 3553(a)(2) are vague and general, and as with so many multifactor standards there is no attempt to give weights to the different factors, though without weighting its factors a multifactor test is not a test but a list, and cannot yield an objective result. A recent article offers some helpful guidance, however. It explains that before imposing conditions of supervised release (other than a handful that must be imposed regardless of the offense, such as not committing another crime after being released from prison), “the judge must find that such a condition: (1) is ‘reasonably related’ to the background of the offense, the offender, or to one of the purposes of sentencing (other than punishment); (2) involves no greater deprivation of liberty than ‘reasonably necessary’ for the relevant purposes of sentencing; and (3) is consistent with the policy statements of the Sentencing Commission.” Fiona Doherty, “Indeterminate Sentencing Returns: The Invention of Supervised Release,” 88 N.Y. U.L.Rev. 958, 1012 (2013) (footnotes omitted). Logically, (3) is not applicable to discretionary conditions already listed in the guidelines, such as substance-abuse treatment; but the decision to impose any discretionary conditions must comply with the section 3553(a) sentencing factors. See 18 U.S.C. §§ 3583(c), (d)(1), (d)(2). So although a defendant's presentence report, prepared by the federal probation service, normally recommends particular conditions of supervised release, the judge is not bound by the recommendations and cannot be, because he is required to conform all parts of his sentence to section 3553(a).

As we'll see when we examine the particulars of our two cases, there are serious problems with how some district judges are handling discretionary conditions of supervised release at sentencing. Two of the problems are relatively minor, and we mention them quickly to get them out of the way. One is the number—thirty—and the other the variety of the listed discretionary conditions. See 18 U.S.C. § 3563(b); U.S.S.G. §§ 5B1.3(c)-(e). The sheer number may induce haste in the judge's evaluation of the probation service's recommendations and is doubtless a factor in the frequent failure of judges to apply the sentencing factors in section 3553(a) to all the recommended conditions included in the sentence.

Because conditions of supervised release, though imposed at sentencing, do not become operational until the defendant is released, the judge has to guess what conditions are likely to make sense when the defendant is released. The longer the sentence, the less likely the guess is to prove accurate. Conditions that may seem sensible at sentencing may not be sensible many years later, when the defendant is finally released from prison. (Defendant Siegel was sentenced to 30 years in prison.) And while it's true that conditions of supervised release can be modified at any time, 18 U.S.C. § 3583(e)(2), modification is a bother for the judge, especially when, as must be common in cases involving very long sentences, modification becomes the responsibility of the sentencing judge's successor because the sentencing judge has retired in the meantime.

A more serious problem with the current system is that, as we'll see when we discuss the conditions imposed in our two cases, a number of the listed conditions, along with a number of conditions that judges modify or invent, are vague.

Another serious problem is the difficulty of predicting recidivism. Reducing recidivism is the main purpose of supervised release, though some of the conditions of supervised release are intended to help the released prisoner adjust to life on the outside even if there is no worry that without them he would be likely to commit crimes; it may be apparent that by the time he's released from prison he will be too old or infirm to resume a life of crime.

There is an extensive social scientific literature on the causes and cures of recidivism. See, e.g., Francis T. Cullen, Cheryl Lero Jonson & Daniel S. Nagin, “Prisons Do Not Reduce Recidivism: The High Cost of Ignoring Science,” Prison Journal, vol. 91, no. 3 supp., Sept. 2011, p. 48S; Cassia Spohn & David Holleran, “The Effect of Imprisonment on Recidivism Rates of Felony Offenders: a Focus on Drug Offenders,” 40 Criminology 329 (2002); R. Karl Hanson & Monique T. Bussière, “Predicting Relapse: A Meta–Analysis of Sexual Offender Recidivism Studies,” 66 J. Consulting & Clinical Psychology 348 (1998). And the probation service is well aware of this literature. See, e.g., U.S. Courts, “Risk Assessment Tool Helps Probation Officers,” www. youtube. com/ watch?v=SnGDKgdTi4; Laura M. Baber & Mark Motivans, “Extending Our Knowledge About Recidivism of Persons on Federal Supervision,” Federal Probation, vol. 77, no. 2, Sept. 2013, www. uscourts. gov/ uscourts/ Federal Courts/ PPS/ Fedprob/ 2013– 09/ knowledge. html.

But there are limitations to the studies as guides to sentencing. There is the difficulty of determining the number of crimes committed by a person after his release from prison—the number that is the real measure of recidivism—as distinct from the number of his arrests or convictions, which may be much smaller. And statistical studies are unlikely to enable a confident prediction that a particular inmate will or will not commit crimes after he is released. Moreover, while there is evidence that supervised release and other programs of community supervision do reduce recidivism, perhaps substantially, see D.A. Andrews & James Bonta, “Rehabilitating Criminal Justice Policy and Practice,” 16 Psychology,...