US v Thompson

1-13-15 7th Cir.:

US v Thompson

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, 2014, 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_Feder al_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.

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The judge should have explained the need for a 10-year term of supervised release to take effect when this defendant is in his 60s. How likely is the defendant to reenter the heroin trade, or engage in other criminal activity, at that age? He has a long criminal record but all related it seems to dealing in heroin. He may be burned out by the time he's released from prison.

To impose a 10-year term of supervised release to take effect in 22 to 25 years requires justification; and while the term can be modified at any time, a superior alternative might well be to impose at the outset a nominal term, with the understanding (contrary to the error by the district judge in Thompson's case) that it can be extended, if that seems needful, on the eve of the defendant's completion of his prison sentence.

The government in defending the conditions of supervised release imposed in these four cases relies not on case law but rather on the proposition that the defendant can ask the probation officer what a condition means, and the officer will give him a sensible answer. This is some protection against unreasonable or ambiguous conditions, but not enough.

It is too much like telling a defendant he'll be on supervised release until the probation officer decides he's been on it long enough, or that if he isn't sure what is "excessive use of alcohol" he should ask the probation officer. As a practical matter the terms of supervised release would be determined not by a judge but by a probation officer exercising an essentially unlimited discretion (for example to define "excessive use of alcohol").

The law doesn't authorize that. United States v. Tejeda, 476 F.3d 471, 473-74 (7th Cir. 2007). It's true that probation officers are employees of the federal judiciary, but so are law clerks and judges' secretaries, yet they are not allowed to decide the sentences of convicted defendants.

To conclude, in all four cases the judgments are reversed and the cases remanded for resentencing. Although we find no reversible error in the prison sentences treated in isolation from the conditions of supervised release, we vacate the entire sentences because reconsideration of those conditions may conceivably induce one or more of the judges to alter the prison sentence that he imposed.

REVERSED AND REMANDED.