Delegational Delusions: Why Judges Should Be Able to Delegate Reasonable Authority over Stated Supervised Release Conditions

Article excerpt

Introduction
I. Background
   A. Article III: Judicial Impartiality
      1. Delegation: An "Essential Attribute" of the
         Administrative State
      2. Punishment: Deference to Prison Authorities
   B. Supervised Release and the Sentencing Reform Act of
      1984
      1. Sentencing and Parole Before the Act: "Unfettered
         Discretion".
      2. Congress' Intent: Rehabilitation's Tenuous Hold
      3. In Practice: Costly and Ineffective
   C. The Supervised Release Statute
      1. Imposing Conditions
      2. The Right to Appeal
      3. Termination, Modification, and Revocation
      4. Probation Officers' Duties
II. Conflict
   A. The Majority Approach: Article III Literalism
      1. The Ultimate Responsibility Rule: United States v.
         Johnson
   2. Policy Implications: United States v. Heath and United
      States v. Stephens
      a. Heath Facts: Leeway, But Only So Much
      b. Heath Holding: An Impermissibly Ambivalent
         Sentence
      c. Narrow Tailoring and United States v. Stephens
         i. Stephens Facts: A Struggle With Drug Use
         ii. Stephens Holding: A Struggle to Find the
             Limiting Principle
   3. Protecting Defendants' Rights: United States v. Pruden
      a. Facts: An Extraneous Condition
      b. Holding: Two Legal Reasons to Strike the
         Condition
   B. The Minority Pragmatic Approach
      1. Recasting United States v. Johnson's "Ultimate
         Responsibility".
      2. Policy Rationale: Delegation Limiting Supervised
         Release Conditions
III. Resolution
   A. Constitutional Reasons to Delegate
      1. Literally Constitutional
      2. In the Pipeline
         a. Plurality
         b. Dissent
      3. The Judicial Probation Officer and the Executive
         Prison Authority
   B. Policy Reasons to Delegate
      1. The Original Goals of Supervised Release
         a. A Sentence With No Surprises
         b. Removing the Strategy from Sentencing
         c. Rehabilitation
      2. Critiques of Supervised Release
Conclusion

INTRODUCTION

Presiding over a sentencing hearing in 2005, a federal judge faced a dilemma. (1) He had sentenced Lawrence Bowman to three years in prison for possession of child pornography. (2) He had also sentenced Bowman to three years of supervised release, (3) which would require Bowman to report to a probation officer and abide by certain conditions upon his release from prison. (4)

But the particulars of the case presented the judge with a difficult choice: because Bowman had a ten year-old son and a young grandson, the judge was worried about whether they could safely spend time with Bowman when he returned from prison. (5) On the other hand, the judge recognized that a psychologist had concluded that Bowman did not have sexual proclivities that would endanger young children. (6) Therefore, he did not want to impose a condition that would cruelly punish not only Bowman, but also his family by keeping them separated unless it was truly necessary. (7) The judge stated that, even though Bowman did not appear to pose a risk at the time of sentencing, he did not want to allow Bowman to see his son and grandson unsupervised "without having input from the counselors ... and from the probation officer who knows the matter best." (8)

At the suggestion of Bowman's probation officer who spoke at the hearing, the judge resolved this dilemma by making the supervision requirement a condition of Bowman's supervised release, but adding that his probation officer could relieve him of the condition if, after consulting with his sex offender treatment provider, she determined that he was not a threat. (9)

Most appellate courts, however, would not permit this solution. (10)

The majority of circuit courts hold that allowing a probation officer to decide whether or not to impose a particular condition of supervised release-- depending on that officer's assessment of the defendant's needs--violates the Constitution. …