CHALLENGING SEX OFFENDER SUPERVISION CONDITIONS. Tom Bartee Tim Burdick

CHALLENGING SEX OFFENDER SUPERVISION CONDITIONS Tom Bartee Tim Burdick

18 USC 3583(d) (1) Is reasonably related to the factors set forth in section 3553(a)(1), (a)(2)(b), (a)(2)(c), (a)(2)(d); (2) Involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(c), and (a)(2)(d); and (3) Is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a);

5D1.3(d)(7) Special Conditions (Policy Statement) Sex Offenses (A)A condition requiring the defendant to participate in a program approved by the United States Probation Office for the treatment and monitoring of sex offenders. (B)A condition limiting the use of a computer or an interactive computer service in cases in which the defendant used such items.

Notice of Conditions 18 U.S.C. 3583(f) The court shall direct that the probation officer provide the defendant with a written statement that sets forth all the conditions to which the term of supervised release is subject, and that is sufficiently clear and specific to serve as a guide for the defendant s conduct and for such supervision as is required. 18 U.S.C. 3603(1) A probation officer shall instruct a probationer or a person on supervised release, who is under his supervision, as to the conditions specified by the sentencing court, and provide him with a written statement clearly setting forth all such conditions.

Nondelegation Cases Article III of the United States Constitution confers the authority to impose punishment on the judiciary, and the judiciary may not delegate that authority to a nonjudicial officer. United States v. White, 782 F.3d 1118, 1141 (10th Cir.2015) In this case, the court explicitly stated it hoped it would not be riding herd in the probation officer s decision to require Kent to undergo psychiatric treatment.... [W]e find that the lower court improperly delegated a judicial function to Kent s probation officer when it allowed the officer to determine whether Kent would undergo counseling. United States v. Kent, 209 F.3d 1073, 1079 (8 th Cir.2000)

SOTP Agreement (Contact w/ Minors) Supervised contact with minors I must submit a written request to my assigned officer specifying the nature of the contact, the reasons for the contact, where and when the propsed contact would take place, who the contact would be with, and a plan for the supervision of the contact by a supervising agent. A supervising agent is a responsible adult who is aware of the offense and my sexual offending relapse cycle, understands how a child can be victimized... Definitions Contact: telephonic comm, written corresp, electronic corresp, indirect comm Supervised Contact: does not include overnight visits or lodging

18 USC 3583(d) (1) Is reasonably related to the factors set forth in section 3553(a)(1), (a)(2)(b), (a)(2)(c), (a)(2)(d); (2) Involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(c), and (a)(2)(d); and (3) Is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a);

US v. Bear 769 F.3d 1221 (10 th Cir.2014) But restrictions on a defendant s contact with his own children are subject to stricter scrutiny. The relationship between parent and child is constitutionally protected, and a father has a fundamental liberty interest in maintaining his familial relationship with his children. Given the importance of this liberty interest, special conditions that interfere with the right of familial association can do so only in compelling circumstances, and it is imperative that any such restriction be especially fine-tune.

United State v. Dougan 684 F.3d 1030 (10 th Cir.2012) while we recognize that it is permissible to impose special sexoffender-related conditions of supervised release even where the crime of conviction is not a sex crime,... in such cases we would require a stronger nexus than we have here between the defendant's history and characteristics and the sex-offender-related conditions before we could conclude that the latter were reasonably related to the former, as required by 18 U.S.C. 3583(d)(1). Even with a failure to register, no appellate court has upheld the imposition of special sex-offender conditions of release when based upon an underlying offense that is seventeen years old.

SOTP Agreement (Children s Toys) I will not have children s toys or children s clothing in my possession, without the prior knowledge and permission of the probation officer.

SOTP Agreement (Possession of Sexual Material) I will not possess or have under my control any material that describes or depicts human nudity, exploitation of children, consensual sex acts, non-consensual sex acts involving forcer or violence including but not limited to: computer programs, computer links, computer social networking sites, photographs, drawings, video/audio tapes, CDs/DVDs, flash drives, cell phones or any digital storage device containing photographs displaying nudity, magazines, books, literature, writings, or any other material deemed to be sexually stimulating as determined by the treatment provider and my assigned Officer.

SOTP Agreement (Patronize Any Place) I will neither possess nor have under my control any pornographic, sexually oriented, or sexually stimulating materials, including visual, auditory, telephonic, or electronic media, computer programs, or services. I will not patronize any place where such material or entertainment is available. I will not use any sex related services.

SOTP Agreement (Permission to Date) I will not reside with, enter into a romantic relationship with, or marry anyone who has minor children under the age of eighteen years without the advanced permission of my assigned officer. I will inform my assigned officer of any new and/or existing current, close relationship in which I am involved. I will inform those persons with whom I have a significant relationship or close affiliation of my sexual offense history.

SOTP Agreement (Permission to Visit Public Places) I will not be present at schools, parks, playgrounds, fairs, circuses, carnivals, video arcades, toy stores or other areas where children congregate, unless I have received the prior authorization of my assigned officer.

Dist of KS Special Cond (Notification of Risk) STANDING ORDER NO. 88-6 14. As directed by the probation officer, the person shall notify third parties of risks that may be occasioned by his or her criminal record or personal history or characteristics, and shall permit the probation officer to make such notification and to confirm his or her compliance with such notification requirement. US v. Sexton 2017 WL 6546956 (6 th Circ.2017) (unpublished)

CIMP As directed by the U.S. Probation Officer, the defendant shall cooperate with and abide by the policies of the United States Probation Office's Computer and Internet Monitoring Program which includes restrictions and/or prohibitions related to: computer and Internet usage, possession and use of electronic, cellular, gaming, and Internet appliance devices; possession and use of computer hardware and software, encryption hardware or software, and accessing certain types of web sites to include: social networking, chat rooms, and those depicting sexually explicit conduct or pornographic material.

U.S. v. Ullmann 788 F.3d 1260 (10 th Cir. 2015) Ullmann's two objections: (1)"to the 'prohibitions' on his access to the Internet and use of the panoply of devices listed in the proposed condition." (2) "He also objects that some of the devices listed in the modified condition, such as 'Internet appliance devices,' are neither intended for nor capable of use for interpersonal communication.

Ullmann (cont.) Tenth Circuit upheld, pointing to the district court's statements: At the hearing on the proposed modification, the district court orally clarified that the restrictions and/or prohibitions language only restricted and did not prohibit use of various Internetcapable devices. Additionally, the court explained that the restrictions covered only certain Internet-capable devices by stating that Ullmann has not been prohibited from using his computer, cell phone or any other electronic appliance with internet access. Rather, [Ullmann]'s use of these items may be restricted in order to monitor his post-release conduct.

Ullmann (cont.) But Tenth Circuit cautioned: In future cases, the ambiguous language of the boilerplate condition at issue, unaccompanied by oral clarification, could reasonably be construed as prohibiting any Internet or computer use. We therefore caution that adjudicating further appeals because of the restrictions and/or prohibitions language is not a valuable use of our limited judicial resources.

Packingham v. NC 137 S.Ct. 1730 (2017) In short, social media users employ these websites to engage in a wide array of protected First Amendment activity on topics as diverse as human thought. Even convicted criminals and in some instances especially convicted criminals might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.

When to Object? U.S. v. LeCompte, 800 F.3d 1209 (10 th Cir.2015) Defendant does not waive an as applied challenge to a condition of supervision if no objection was made at the time of sentencing. Defendant does waive a facial challenge to conditions if no objection was made at sentencing US v. Mickelson, 433 F.3d 1050 (8 th Cir.2006) Standard of review in the 10 th Circuit is Abuse of Discretion

Confidentiality Waiver The confidential information to be released will include: date of entrance to program; attendance records; drug detection test results; type, frequency, and effectiveness of therapy; general adjustment to program rules; type and dosage of medication; response to treatment; test results (e.g., psychological, psycho-physiological measurements, vocational, sex offense specific evaluations); date of and reason for withdrawal or termination from program; diagnosis; and prognosis.

Treatment Provider Disclosure Vendor testimony The vendor....shall: (1) Appear or testify in legal proceedings convened by the federal court...only upon order of the federal court...and, (1) A request by the United States Probation and/or Pretrial Services Offices, United States Attorney s Offices, or United States Parole Commission, or (2) In response to a subpoena. (5) Not create, prepare, offer, or provide any opinions or reports, whether written or verbal that are not required by this statement of work and the treatment program unless such action is approved in writing by the Chief US Probation Officer....