Editor’s Note: This is the first of a three-part series on understanding conditions of supervised release.
Supervised release was something that was created in order to replace parole. While the legality of it has been questioned over time, the courts have routinely ruled it is not a second sentence and thus did not violate the double jeopardy clause. Until they rule otherwise, individuals subject to it are usually faced with numerous conditions that they must follow or face violations.
There are three types of conditions. Standard conditions, are ones that are imposed on all defendants who are given supervised release. These are a set of conditions that the court and others have determined are adequate in order to protect public safety, deter future criminal conduct and other conditions that satisfy the requirements of 18 USC 3553(a). There are mandatory conditions that Congress has set in place as well that is basically expanded standard conditions. Finally, there are special conditions that must be individually tailored to the individual.
There are numerous mandatory conditions. Some are mandatory for everyone, some are only mandatory based on the offense. The first condition says that the defendant must report to the probation officer in the district to which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons. This is basically self explanatory. If for any reason you cannot make an appearance within 72 hours (normally due to a holiday or weekend), yourself or someone else should contact the probation officer prior to the expiration of the 72 hours and address the problem. Most will have no problem saying report as soon as possible.
The second condition states the defendant shall not commit another federal, state, or local crime. Although this is pretty self-explanatory, many crimes do not have the mens rea (criminal mind) element and you can be charged with a crime without having any intention to. However, most of the time, if it feels wrong, it probably is.
Next condition states that the defendant shall not unlawfully possess a controlled substance, shall refrain from any unlawful use of a controlled substance, shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as determined by the court.
A controlled substance is any substance that the Food and Drug Administration has classified. The most common one that people will have a problem with these days is marijuana. Although many states have legalized marijuana or medical marijuana, it still remains illegal under federal law. To date, the author has not been able to find a single case where a probationer was able to use marijuana while on supervised release, even for medical purposes. Also, the drug testing requirement may be waived if the defendant has no history of substance abuse, but normally, this isn’t the case.
The next condition states the defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon. The firearm and ammunition part are mostly obvious. While some (although very few probation officers) will allow antique weapons, such as muskets and single shot muzzleloaders, assume they will not. Also, crossbows are a common concern as well. Most of these are not allowed. While the rumor goes that anything with a trigger is banned, this is not always the case. There is no clear cut definition on what is considered a firearm or destructive device. If you have a question about one, ask your probation officer. Another issue of concern is with fireworks. Unfortunately, most probation officers will also prohibit you from even possession fireworks. But again, ask first. You might get lucky.
The defendant shall cooperate in the collection of DNA as directed by the probation officer. If you are convicted of a felony, you are required to provide a DNA sample. If you have been in BOP custody since 2011, it is their policy to collect a sample prior to your release. However, there have been cases where a defendant has to provide another sample upon release. It’s not a big deal, it’s usually just a cheek swab.
The next condition states the defendant shall register with the state sex offender registration agency in the state where the defendant resides, works, or is a student, as directed by the probation officer. This condition causes the most headaches for defendants convicted of a sex offense. There are so many different laws for each state, it’s nearly impossible to keep track of them all. The website, www.narsol.org has created a wiki page with numerous state laws and answers to frequently asked questions regarding registering for each individual state.
With the increased use of internet correspondence courses or even mail order correspondence for college classes, a question now arising is whether you have to register at your college if you are a student. After speaking with numerous legal experts and a probation officer, the author was told if you do not physically have a presence on the campus, you are not required to register that you are a student there.
Finally, when it comes to registration, there is a large gray area on the length of registration. For instance, you may have a law that says you only have to register for ten years, but your supervised release may be for life. I have personally seen individuals who legally have no requirement to register, but their probation officer has violated them for failing to register. Although no new charges were filed, the violations were upheld. So be careful with that aspect and seek proper legal advice if this applies to you.
The next condition does not apply to a lot of individuals, but it states that the defendant shall participate in an approved program for domestic violence. There have been some updates to this condition that waive this requirement if no approved program is located within 50 miles of the defendant’s release residence.
The next to last mandatory condition states that if a judgment imposes a fine or restitution, it is a condition of supervised release that the defendant pay in accordance with the Schedule of Payment sheet of this judgment. Many defendants are fortunate enough to only receive the special assessment and most pay this while still incarcerated. However, if you still have any outstanding balances upon your release, your probation officer will work with you develop a schedule to adhere to. Normally, they will take no more than 25% of your gross earnings.
The final mandatory condition leads in to the standard and special conditions of supervised release. It states that the defendant must comply with the standard conditions that have been adopted by this court as well as with any additional conditions on the attached page.
Next week, we will look at the 13 standard conditions of supervised release.
#BackSoSoon is a blog dedicated to helping sex offenders successfully reintegrate back into society. Our Corrlinks email address is email@example.com.