Conditions of Release

United States v. Siegel | 13-1633; -1640
United States v. Norfleet | 13-1767 (consolidated)

July 2014

At a sentencing hearing, most defense attorneys give little (if any) thought to supervised release conditions. The goal is to minimize a client’s prison sentence – not worry about how often he is drug tested once he gets out. The opinion in the consolidated appeals of  United States v. Siegel and United States v. Norfleet should change that. The opinion addresses challenges brought in two different cases by two different defendants who were upset about the supervised release conditions imposed upon them. Among other things, Siegel objected to a ban on the possession of legal or illegal material that “contains nudity” and Norfleet objected to a prohibition on the use of “mood-altering substances.”

In short, both defendants won. The Seventh Circuit reversed the sentencing court’s decision to impose these (and other conditions) and remanded for a new hearing. The essential holding was that a district court must give 18 USC §3553(a) reasons for any discretionary condition of supervised release that the court imposes. Failure to do so, generally speaking, will lead to reversal on appeal. Moreover, it is not enough for the court to say Prohibition A is “justified in this case.” That is only a conclusion – and a conclusion not related to anything in §3553(a)(2).

But the opinion goes further. It chastises both sentencing courts for imposing vague, duplicative, ill-informed, unfounded and unfunded conditions of release. It notes that a prohibition on material that “contains nudity” bars Siegel from reading the Bible and it suggests that Norfleet would violate the prohibition on “mood-altering substances” if he ate blueberries. (Google it, you’ll see.)

The opinion then ends with best practices for future cases, including requiring the probation office to communicate its supervised release recommendations to defense counsel two weeks prior to sentencing and imposing only simply worded easy to follow conditions that are independently determined to be tailored to the needs of a particular defendant.

And lest this case be considered a fluke . . . in no less than four cases since this opinion was issued, the Seventh Circuit has remanded cases on appeal back to the district court to address conditions of supervised release. See United States v. Benhoff (complete ban on “sexually stimulating” material is vague); United States v. Baker (complete ban on alcohol use); United States v. Farmer (remanding for review, and reiterating its belief that proposed terms of supervised release should be communicated to counsel in advance of sentencing); United States v. Johnson (ordered sexual offender counseling at direction of probation office in a felon-in-possession/drug case, noting that the condition was simply announced and never discussed by the court).

Siegel is never going to change the main focus at sentencing from prison length. But it should be seen as a golden opportunity for our clients to limit the restrictions on liberty they face upon release – and defense counsel would be wise to take advantage.