United States federal probation and supervised release

The length and conditions of supervision can be modified by the court after sentencing, although the defendant has a right to a hearing if changes are being proposed that would adversely affect them.

When this was first announced by the Supreme Court in 1916 in the case of Ex Parte United States,[25] an abrupt halt was brought to a practice which, by then, had become widespread in the federal system, and which had existed for more than 70 years.

A person charged with violating the conditions faces the burden of proof of showing by clear and convincing evidence at a detention hearing that they are not a flight risk or danger to the community.

Grade B Violations are conduct constituting any other federal, state, or local offense punishable by a term of imprisonment exceeding one year.

[58] It was originally recommended by the Federal Courts Study Committee that the U.S. Parole Commission or a successor agency conduct hearings in supervised release cases, but this proposal was rejected by the Judicial Conference of the United States, partly because the judges felt that the judicial officer who imposed the supervised release conditions would be best able to interpret those conditions in the way that was intended at sentencing.

Specifically, a corporation could be sentenced to probation over a period of time not to exceed 5 years, coupled with suspension of payment of part of the fine.

[89] However, the trial court has power to place the defendant on probation effective after a subsequent event, such as completion of service of sentence on another charge.

[101] As required conditions for all offenders,[102] the defendant shall not leave the federal district where he resides (without prior permission of his supervising officer), commit another federal, state or local offense; shall not unlawfully possess a controlled substance; shall refrain from any unlawful use of a controlled substance and submit to one drug test within 15 days of release on probation and at least two periodic drug tests thereafter (as determined by the court) for use of a controlled substance, but the condition stated in this paragraph may be ameliorated or suspended by the court for any individual defendant if the defendant's presentence report or other reliable information indicates a low risk of future substance abuse by the defendant; if a fine is imposed and has not been paid upon release to supervised release, shall adhere to an installment schedule to pay that fine;[103] shall make restitution[104][105][106][107][108][109][110] and pay the special assessment on convicted persons;[111] shall submit to the collection of a DNA sample from the defendant at the direction of the United States Probation Office if the collection of such a sample is authorized pursuant to section 3 of the DNA Analysis Backlog Elimination Act of 2000.

The report asks about employment; vehicles; finances (including bank accounts, past due debts, cash inflows and outflows, major expenditures, post office boxes, safe deposit boxes, and storage units); questionings by law enforcement; arrests; dispositions of charges; contacts with others who have criminal records; firearm possession and/or access; illegal drug use and/or possession; travel outside the probation district; special assessments, restitution, and fine balances and payments; community service obligations and hours completed, missed, and remaining; and drug, alcohol, and mental health aftercare and any sessions missed.

[124] However, the 2006 U.S. Supreme Court decision Samson v. California eliminated any requirement of reasonable suspicion prior to a search of parolees' homes or persons.

A probation condition prohibiting a former city councilman convicted under the Hobbs Act of attempting to affect commerce by extortion from seeking or serving in elected public office was affirmed.

[126] Even in a case in which the defendant was convicted of bringing large amounts of illegal drugs into the country, and the appellate court agreed that the defendant should not return to Israel, where his troubles began, it was ruled that the District Court must make findings in support of a restriction against travelling out of the U.S.[119] The concept of community restitution was not authorized by the former U.S. federal law.

[127] Also under that law, restitution was struck down where aggrieved parties were not identified and actual damages or loss caused were not evaluated with exactitude.

§ 3563, sentencing courts are permitted to impose restitution as a condition of release to the extent agreed to by the government and defendant in a plea agreement.

"[141][142] In the case of United States v. Reeves, the 2nd Circuit struck down a provision that the defendant notify the probation officer upon entering into a "significant romantic relationship": [143] We easily conclude that people of common intelligence (or, for that matter, of high intelligence) would find it impossible to agree on the proper application of a release condition triggered by entry into a "significant romantic relationship."

For some, it would involve the exchange of gifts such as flowers or chocolates; for others, it would depend on acts of physical intimacy; and for still others, all of these elements could be present yet the relationship, without a promise of exclusivity, would not be "significant."

See, e.g., Wolfgang Amadeus Mozart, The Marriage of Figaro (1786); Jane Austen, Mansfield Park (Thomas Egerton, 1814); When Harry Met Sally... (Columbia Pictures 1989); He's Just Not That Into You (Flower Films 2009).The 6th Circuit also struck down a provision of "third party risks" in regards to romantic relationships or friendships as unduly vague and a violation of due process rights.

[146] A requirement that a defendant who headed the "Pure American Freedom Party" and was convicted of possessing an unregistered firearm avoid associating with other skinheads and neo-Nazis was upheld.

[169] It was ruled that a court did not abuse its discretion in requiring, as a condition of supervised release, that the defendant report financial obligations in excess of $250 incurred by his wife.

[171] It was permitted for a federal court to prohibit an Indian boy to possess a firearm until age 21, even though it infringed on his religious rite of passage of participation in a tribal hunt.

[172] The United States Court of Appeals for the Ninth Circuit recently addressed the procedures required before a supervised release program could include penile plethysmograph testing.

[176] Thus, such restrictions are most common in cases involving downloading of child pornography, online solicitation of sex with children, threats made via Internet, computer hacking, etc.

As a result of his supervised release conditions, for three years Kevin Mitnick was unable to act as a consultant for any computer related subject or communicate via email.

[178] However, in a case involving a defendant deemed to be at risk of contacting young children and soliciting sex with them, a total Internet ban was affirmed by the Second Circuit.

[179] The court ruled in U.S. v. Peterson:[153] The computer/Internet restrictions prohibit the defendant outright from possessing or using a computer that includes either a modem, an Internet account, a mass storage device, or a writable or re-writable CD Rom.

The fact that a computer with Internet access offers the possibility of abusive use for illegitimate purposes does not, at least in this case, justify so broad a prohibition ...

[181] In a case involving a counterfeiter who employed scanner, computer, and printer to counterfeit currency but did not utilize any other devices, and in no way involved or relied upon the internet, electronic bulletin boards, or other networks, the Ninth Circuit struck down a condition that stated, "The defendant shall use only those computers and computer-related devices, screen user names, passwords, email accounts, and internet service providers (ISPs), as approved by the Probation Officer ... All computers, computer-related devices, and their peripheral equipment, used by the defendant, shall be subject to search and seizure and the installation of search and/or monitoring software and/or hardware, including unannounced seizure for the purpose of search.

"[182] The United States Court of Appeals for the Seventh Circuit overturned a condition that "The defendant shall be prohibited from access to any Internet Services without prior approval of the probation officer," finding that, despite a few child pornography images having been found on the defendant's computer in the midst of a fraud investigation, he did not have "a record of extensive abuse of digital communications that could justify an outright ban.

In U.S. v. Walser, the 10th Circuit ruled, in reference to a condition prohibiting the defendant from using the Internet without the probation officer's permission, that the "vagueness of the special condition leaves open the possibility that the probation office might unreasonably prevent Mr. Walser from accessing one of the central means of information-gathering and communication in our culture today," but nonetheless affirmed because it was not "persuaded this concern rises to the level necessary to clear the extremely high hurdle set by the plain error standard".

[188] The difference is that in the White case, the condition stated that the defendant "shall not possess a computer with Internet access throughout his period of supervised release," while the conditions imposed in the Walser and Zinn cases allowed the probation officer to grant permission, which the 10th Circuit held "more readily accomplishes the goal of restricting use of the Internet and more delicately balances the protection of the public with the goals of sentencing."