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.

This must deprive you of no more liberty than necessary and comply with all pertinent policy statement of the U.S. Sentencing Guidelines.

So long as it even looks like the condition is relevant under factor (1), as it almost always will be, it will likely be upheld. Given this, the best chance of attacking your conditions is to use the argument that it deprives you of more liberty than is reasonably necessary to accomplish whatever the stated goal is, or, if your judge was the average, and failed to explain why he imposed it, what the goal could have been.

For example, if your judge banned you from the internet because you used a computer in the commission of your crime, you can highlight all the less restrictive ways he could have accomplished the same end-such as random searches and monitoring software. If the condition bans you from being in places where alcohol is sold, point out this forbids you from going to Wal-Mart, grocery stores, and many restaurants. Instead, suggest that the court could restrict you from bars or other similar establishments.

If the court imposes conditions to prevent recidivism or protect the public, show statistics and research that shows you are unlikely to reoffend-whether this is due to age, criminal history, type of crime, or personal characteristics. If you will not reoffend, obviously there is nothing to protect society from and nothing to deter. Highlight whatever is in your favor, and present the strongest case you can.

If you are provided “needed services,” show that you don’t need such help (if possible). Because of the lack of scrutiny, it is not uncommon for judges to impose alcohol or cognitive behavioral therapy for no reason. Or, if there is history, it is often so old and irrelevant that it is not a proper basis for conditions. A drinking problem a decade ago is not a reason to need treatment today, especially if you are just getting sentenced to a term of years with no alcohol available.

If you have taken any therapy in prison, any programs, or your circumstances have changed, bring that up as well.

Modification is not an easy affair. Most judges are lazy and don’t want to revisit their prior errors. Any request to do so must be more than “I want this changed.” It has to be powerful and compelling. Put forward your best case with as much support as you can. Any less will go absolutely nowhere.

Here is an example of my particular case. I was sentenced in July 2010 and currently my release is set for November 2020. I petitioned the district court in August 2017. I was denied because three years is still too far out. My arguments included having a complete (lifetime) internet ban was more restrictive than necessary. I added that technology has changed so much that having internet access is no longer a luxury, but a necessity. In fact, previously, courts had ruled that broadband internet access as a utility (which has since been overturned, but still in litigation). Therefore, you had just as much right to use it as you do water.

Also, nearly every item is internet connected or internet capable. Heck, refrigerators, televisions, even toilets use the internet now. In addition, if the internet is a utility, point out how if a marijuana grower uses grow lights to produce his plants, they don’t take away his access to electricity or someone who drowns somebody does not have their access to water restricted. In addition, look at statistics. The almanac is a simple place to look. I included stats about the number of internet connections in the U.S. and how it has doubled in the last seven years. Using hypothetical arguments get you nowhere, but the likelihood that we will go backwards in technology is not hypothetical.

If and when the district court denies you, it will be even harder to get your argument heard. I am from the Eighth Circuit and was not even allowed to brief my argument. In fact, after reviewing 176 cases where the petitioner was pro se, NOT A SINGLE ONE was allowed to file a brief. Therefore, as much as you probably hate lawyers, if you can, hire one to put this together. In the alternative, at least hire one to put there name on it, even though you may do all the work. This simple step may be an astronomical help for you.

Finally, the Supreme Court is the last step and the odds of them hearing your appeal is as likely as getting a pardon from President Lincoln (hence, no chance). But, you must present an argument that shows how your similar circumstances will affect many people or if there is a circuit split.

Supervised release, while I believe is a second sentence, is being addressed in numerous cases of various degrees in the Supreme Court this term. It therefore is showing that the ideology behind it may be changing. Until that time, you are responsible for following the terms and conditions of your release whether you like it or not.


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