United States v. Thompson
| Decision Date | 13 January 2015 |
| Docket Number | 14–1772.,14–1676,14–1521,Nos. 14–1316,s. 14–1316 |
| Citation | 777 F.3d 368 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. David M. THOMPSON, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Derek Ortiz, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Charles Bates, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Domingo Blount, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
OPINION TEXT STARTS HERE
Suzanne M. Garrison, Office of the United States Attorney, Fairview Heights, IL, for Plaintiff–Appellee.
Peter W. Henderson, John C. Taylor, Office of the Federal Public Defender, Urbana, IL, for Defendant–Appellant.
Before POSNER, KANNE, and ROVNER, Circuit Judges.
We have consolidated for decision four appeals, heard on the same day, that present issues relating to supervised release. In a recent opinion, United States v. Siegel, 753 F.3d 705 (7th Cir.2014), the court expressed concern with how the district courts of our circuit are administering supervised release. To recapitulate briefly the fuller discussion in the Siegel opinion, the Sentencing Reform Act of 1984 replaced parole for federal crimes with supervised release (to take effect in 1987). 18 U.S.C. § 3583. Parole of federal convicts is granted (though nowadays only in a very limited class of cases, see United States Parole Commission, Wikipedia, http:// en. wikipedia. org/ wiki/ United_ States_ Parole_ Commission (visited Jan. 11, 2015, as was the other website cited in this opinion)) by an administrative agency after a convicted defendant begins serving his sentence. An inmate granted parole is thus released from prison before the expiration of his term, but becomes subject to restrictions imposed by the agency on his conduct between his release and when, had he not been paroled, he would have been released upon the expiration of his prison sentence. The restrictions are intended to reduce the likelihood of his committing crimes in the future.
Supervised release, in contrast to parole, consists of restrictions, imposed by the judge at sentencing, called conditions or terms of supervised release, that are to take effect when the defendant is released from prison and continue for a specified term of years (which can be life). Parole shortens prison time, substituting restrictions on the freed prisoner. Supervised release does not shorten prison time; instead it imposes restrictions on the prisoner to take effect upon his release from prison. Parole mitigates punishment; supervised release augments it—most dramatically when the defendant, having been determined to have violated a condition or conditions of supervised release, is given, as punishment, a fresh term of imprisonment. 18 U.S.C. § 3583(e)(3). Supervised release is required by statute in fewer than half of cases subject to the sentencing guidelines. United States Sentencing Commission, Federal Offenders Sentenced to Supervised Release 3 (July 2010), www. ussc. gov/ sites/ default/ files/ pdf/ training/ annual- national- training- seminar/ 2012/ 2_ Federal_ Offenders_ Sentenced_ to_ Supervised_ Release. pdf. In the other cases the sentencing judge has discretion to order or not order it, see 18 U.S.C. § 3583(a), but almost always the judge orders it in those cases too, United States Sentencing Commission, supra, at 69–70, often without explaining why. Although the defendants in our four cases object to particular conditions of supervised release imposed on them, they do not challenge the propriety of the inclusion of some conditions of supervised release in their sentences.
Supervised release as it is designed and administered has turned out to be problematic in a number of respects. See, e.g., Christine S. Scott–Hayward, “Shadow Sentencing: The Imposition of Federal Supervised Release,” 18 Berkeley J.Crim. L. 180 (2013); Fiona Doherty, “Indeterminate Sentencing Returns: The Invention of Supervised Release,” 88 N.Y.U. L.Rev. 958 (2013). One is that the list of conditions required or suggested is very long. The supervised-release statute, 18 U.S.C. § 3563(b), imposes 9 “mandatory” conditions and 23 “discretionaryconditions,” for a total of 32. The sentencing guidelines get into the act as well, see U.S.S.G. § 5B1.3, imposing 10 “mandatory” conditions, 14 “standard” conditions, and 13 “special” or “additional conditions”—a total of 37. The statutory and guideline conditions, where they overlap, are generally the same substantively, but their wording often differs. Sentencing judges usually use the guideline wording rather than the statutory wording. All but the mandatory conditions are optional. And the judge is free to add or substitute (except with regard to the mandatory conditions) conditions of his own devising. Understandably, given the number of conditions, many district judges simply list the conditions that they impose, devoting little or no time at sentencing to explaining them or justifying their imposition.
Because conditions of supervised release do not take effect until the defendant completes his prison term and is released, defendants given long prison sentences—and long prison sentences are common in federal sentencing—often have little interest in contesting conditions of supervised release at sentencing. Criminals who court long prison sentences tend to have what economists call a high discount rate. That is, they give little weight to future costs and benefits. Defendants or their lawyers may also worry that a successful challenge to a condition or conditions of supervised release may induce the judge to impose a longer prison sentence, thinking that resistance to supervised release implies recidivist tendencies or intentions. And often a defendant is given no notice in advance of the sentencing hearing of the conditions of supervised release that the judge is thinking of imposing, which can make it difficult for his lawyer to prepare arguments in opposition.
Many district judges appear to have overlooked the fact that because the imposition of conditions of supervised release is part of the sentence, a sentencing judge is required by the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), to evaluate the propriety of any conditions of supervised release that the judge is thinking of imposing, by applying to the proposed conditions the sentencing considerations listed in 18 U.S.C. § 3553(a). The considerations include (in subsections (1), (2), and (3) respectively) “the nature and circumstances of the offense and the history and characteristics of the defendant,” “the need for the sentence imposed,” and “the kinds of sentences available.”
Any doubt that conditions of supervised release are a part of the sentence and subject therefore to the requirement that the judge before imposing sentence apply the sentencing factors in section 3553(a) is dispelled by 18 U.S.C. § 3583(c). It provides that “the court, in determining whether to include a term of supervised release, and, if a term of supervised release is to be included, in determining the length of the term and the conditions of supervised release, shall consider the factors set forth in [eight enumerated subsections of] section 3553(a).” And being part of the sentence, the imposition of conditions of supervised release is subject to the further requirements that “the court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence,” 18 U.S.C. § 3553(c), and “in determining the length of the term and the conditions of supervised release, shall consider the factors set forth in” eight enumerated subsections of section 3553(a). 18 U.S.C. § 3583(c).
Subsection (a) of section 3553 lists the sentencing factors that the judges are to consider in determining the sentence. From the omission of subsection 3553(a)(2)(A), the court in United States v. Murray, 692 F.3d 273, 280 (3d Cir.2012), inferred “that the primary purpose of supervised release is to facilitate the reentry of offenders into their communities, rather than to inflict punishment.” The omitted subsection (a)(2)(A) is “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 sheer number of conditions may induce haste in a sentencing judge's evaluation of the recommendations of the probation officer assigned to the case as to what conditions of supervised release to impose (if there are such recommendations—often there are not; there are not in any of the four cases before us) and is doubtless a factor in judges' frequent omission to mention any of the sentencing factors in section 3553(a) or even any of the conditions recommended by the parties or the probation officer that the judge decides to include in the sentence.
And because conditions of supervised release, though imposed at sentencing, do not become operational until the defendant is released, the judge has to guess at the time of sentencing what conditions are likely to make sense in what may be the distant future. Conditions that may seem sensible at sentencing may not be sensible many years later, when the defendant is finally released from prison. Although nonmandatory conditions of supervised release can be modified at any time, 18 U.S.C. § 3583(e)(2), modification is a bother for a judge, especially when, as is common in cases involving very long sentences, it becomes the responsibility of the sentencing judge's successor because in the meantime the sentencing judge has retired or died, resigned, or been promoted. Furthermore, although reducing recidivism is the purpose of supervised release, it is difficult, often impossible, to predict whether a defendant is likely upon release to resume criminal activity. Often rehabilitation is named as an additional purpose of...
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