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.

Both the district court and the Tenth Circuit have written great opinions on the serious problems this causes. Yet, all of these issues exist in release across the board. The Sentencing Commission has admitted that the vast majority of “laws violations” are ones that could not stand up at trial. For those who have a one or two year maximum, but receive multiple terms of imprisonment, that’s a Booker violation just as much as if it is all given at one time. And, the double jeopardy concerns raised by the lower courts are uncontested. A win for Haymond would be a big thing. Further, since 3583(k) sets sex offenders apart, if one part of it is unconstitutional, it probably all is.

Also being heard on Tuesday is Mont v United States. While on release, Mont committed new offenses which led to state charges and pretrial incarceration. The federal court waited to revoke his supervised release until after he was convicted, but, by then, his term of release had expired. The question is whether his term kept running while incarcerated. Though the public defender’s argument is interesting, that only post-conviction confinement is excluded, this does not seem faithful to the language of the statute and would require the Supreme Court to reject its prior ruling in Johnson v United States (2000).

While this issue is limited, a favorable ruling-which seems unlikely-would put limits on power to extend release or to revoke it after conclusion. While Mont only addresses the tolling provision, it is difficult to see why the Government would be able to file a violation report before release is concluded, but not revoke it until after the term concluded (which is also allowed by statute).

Finally, in an opinion on which is better for its rhetoric – “Sex offenders are not second class citizens” than for its actual import, an Alabama judge struck down two provisions of the state registry involving labeling the license with “sex offender” and with onerous reporting requirements on online activities. Finding this to be a form of “forced speech” which could be accomplished on a less intrusive means, the court struck this down as violating the First Amendment.

While its always nice to see a court strike down needless discrimination, this opinion itself, it not actually very meaningful. The Supreme Court has already ruled that license plates or government billboards are government speech, not individual. Since there is no means to distinguish government identification, this is-sadly wrong as a matter of First Amendment law. It may be able to be used to argue on other basis-equal treatment perhaps-but it is not precedent beyond that.

Once we get the arguments on Haymond and Mont, we will address it in more detail. However, it does seem to be a major issue when the two of the sections of the supervised release statute are being heard on the same day in the Supreme Court.

In closing, thanks to everyone for the well wishes over the weekend. I am feeling better and really appreciate everything you guys have done. While not everything I post (with the assistance of some friends) is always positive news (or even a positive opinion), we strive to provide what we believe the law is.

Also, several people have asked about more reentry information. When I started this blog last August, that was actually the intent of it and our website, as well as our footer on each message, states that “#BackSoSoon is a blog dedicated to helping sex offenders successfully reintegrate back into society.” I won’t lie, this is my first time in prison and it’s new ground for me. I’m using what I have researched, stories from others and my personal experiences to try and determine the best route to make all of us successful. Any suggestions you would like to provide for articles regarding reentry topics, feel free to send them to us with the subject line “Reentry Suggestions”.

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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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