Justices Tell Government to Basically, Shut Up!

It was encouraging to read the oral argument transcripts in Haymond and see the Solicitor General take a drubbing. He was unable to get out a single sentence before the Justices interrupted him to tell him he was wrong. And the hearing never improved for him thereafter!
For decades, the Government has gotten so used to judges accepting the parole/probation/supervised release comparison without a question that the Solicitor General was completely unprepared for the repeated and forceful rejection of that claim. Time and time again, he returned to the tried and true, only to be told that the two were nothing alike. Not a single one of the Justices bought what he was selling.
Seemingly citing the Eaton briefs, the Justices noted that, unlike parole, the releasee has done all his time; he has been given no benefit of early release. Whereas termination of parole is merely the loss of a benefit, revocation of release imposes a new penalty. It seemed like the Court rejected the idea that this was part of the penalty for the original crime, calling it both an extension and a new penalty. Never before have we had such a system, and the fact that a conviction is valid does not mean release is too.
No matter how far the Court ultimately goes in its opinion, the Haymond case is a long overdue look at the legality of supervised release. As we examined in the past months, release has largely adopted the questionable practices of parole despite being on a different legal standing. The Eighth Circuit, seeing the writing on the wall, has already implemented new legal protections in release hearings. (United States v. Sutton, No. 17-3195 stating that while a revocation hearing is not a criminal trial, the Federal Rules of Civil Procedure give a releasee the opportunity to cross-examine witnesses.)
Justice Alito, seemingly the only one against this reform, bemoaned the fact that the Court was spelling the end of supervised release. We can only hope!
In two other big cases, the Georgia Supreme Court has ruled that lifetime GPS monitoring of sex offenders constitutes a search and thus is illegal under the Fourth Amendment (Park v. Georgia, No. S18A1211). In another big ruling, the Third Circuit Court of Appeals ruled that sex offenders under Pennsylvania registration laws are “in custody” for habeas purposes. (Piasecki v. Court of Common Pleas, No. 16-4175).
Both of these also showcase that the constitutional protections that everyone is entitled to, including sex offenders, are still available. I am particularly interested in the Third Circuit ruling where basically the Court has said that with all the restrictions a sex offender must abide by, it is the equivalent of being incarcerated practically.
We will continue to monitor both of these cases and several others. In closing, I want to say thanks to two other sites for helping provide us with news and case updates. One is Wayne Dowdy’s “Straight from the Pen” blog located at https://straightfromthepen.wordpress.com and the other is Doug Berman’s Sentencing Law and Policy blog located at http://sentencing.typepad.com/sentencing_law_and_policy.
Have your family check them both out as they are full of valuable information as well.
BackSoSoon is a blog dedicated to helping sex offenders successfully reintegrate back into society. Our Corrlinks address is backsosoonblog@gmail.com and our website is www.backsosoonblog.com.
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Supreme Court Claims Certain Violations May Be Unconstitutional

On Tuesday, the Supreme Court heard oral arguments in United States v Haymond. As we have mentioned several times the background of Haymond’s case, we won’t go into full detail. However, because of a previous sex offense, Haymond was violated under 18 USC 3583(k) which provides for a mandatory minimum five year violation because he had additional CP on his phone and possibly up to life.

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Is Supervised Release Running on Fumes?

There have been several high profile, compelling cases in recent days.

The first, going up for oral argument now, is United States v Haymond. Haymond, on supervised release for a porn offense was violated for having more child porn in his internet cache. Because the evidence was insufficient to convict him, it was treated as a violation instead and he was sentenced to five years. Without the commission of another porn offense, it would’ve been a maximum of two years. Now, the court is hearing oral arguments that this scheme denies a releasee due process and violates Booker.

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The Dark Figure of Sexual Recidivism

With endless research now disproving the long held myth of high sex offender recidivism and even Attorneys General calling for the registry’s abolishment, a new study seeks to fan the dying flames of this once white hot hysteria. The paper makes the claim that all previous studies of sex offenders are flawed because they underreport the actual recidivism, as they only deal with those rearrested, and most reoffenders are never rearrested.

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Michigan A.G. States Sex Offender Registry is Punishment

It has been a busy week this past week and for the most part, it has been beneficial to inmates, or at least rather to those convicted of felonies.

First, let’s begin out of Michigan. Michigan’s sex offender registry has been in the news a lot in the last few years. In fact, it has been to the U.S. Supreme Court twice. Once, it upheld a decision by the appellate court that parts of the registry were punishment and therefore could not be applied retroactively. In that case, the U.S. Supreme Court upheld the decision. In another decision, when the state appealed to the U.S. Supreme Court, their cert petition was denied.

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The Import of Haymond

Later this month, the Supreme Court is set to hear arguments in United States v Haymond, a case that tests the legality of increased mandatory minimums and maximums for sex offenders who are accused of committing another sex offense while on release. Haymond had the misfortune to get malware on his smartphone, which gave him all sorts of nasty little goodies, including child pornography. As the evidence was pretty conclusive that he did not deliberately download these files, the Government tried to convict him through the back door of revoking his supervised release.

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How to Petition to Get Your Extra Good Time

First off, I apologize for the delay. I had another brain fart and send this post to the wrong email, so that is the reason for the delay from yesterday. As previously mentioned, one court in Illinois has denied the opportunity to correct the good time fix by stating that it is not in effect until at least July. We disagree with that. So we have prepared a sample motion for people to file with the district court in the district in which you are PRESENTLY LOCATED, not the district in which you were sentenced.

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How to Petition to Modify Your Conditions of Supervised Release-Part 3

One of the main factors of supervised release-that it was not supposed to be punishment at all, but was meant to help the individual reintegrate into society-has largely been forgotten. Yet, it is something that courts should be reminded of, and the petition should explain how any challenged condition impedes this goal. Pointing out the real world consequences of a condition are far more likely to sway any judge than a legal argument, and many judges have modified conditions on this basis alone.

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Lessons from the “Remedy Process”

Most of us have been on the receiving end of misbehavior by prison officials. Trying to bring staff’s bad behavior to the attention of the higher ups is, at best, an exercise in frustration, and, often, futility. Poorly designed “remedy” procedures are staffed by apathetic and-to be fair-usually overworked aides who just want to quickly dispose of numerous complaints and move on to one of their other myriad duties. The actual signee, like the Warden, usually does not even read what they sign.

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How to Petition to Modify Your Conditions of Supervised Release-Part 2

In challenging conditions already imposed, you must essentially treat this as a reverse sentencing, showing the condition does not comply with the release statute. Courts have broad discretion to impose conditions that are related to one of the following:

(1) the characteristics and nature of the offense;
(2) preventing more crime;
(3) protecting the public; and
(4) providing you needed services or treatment.

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