Second Circuit Continues To Give A Close Look To Supervised Release Conditions
In a recent nonprecedential summary order, the Second Circuit (Winter, Lynch, Chin) vacated and remanded a sentence due to a condition of supervised release that prohibited the defendant from having unsupervised contact with any minor, including his nine-year old son. The summary order in United States v. Donohue, 17-943-cr, reflects the Circuit’s continuing concern that the conditions of supervised release be appropriate given the defendant’s conviction and personal circumstances.
It was totally unsurprising and proper that the district court considered a sentence that involved limitations on the defendant’s access to children, as the defendant’s offense of conviction was the receipt of child pornography. At his original sentencing, the district court imposed a special condition prohibiting the defendant from having direct, unsupervised contact with anyone under the age of 18 years old.
After his release from prison, the defendant violated the terms of his supervised release by viewing adult pornography and nude photos of children under the age of 18. He also violated the terms of his release by using his employer’s computer to search for child pornography. The defendant admitted to the three violations of supervised release contained in the specifications against him but asked for a modification of the special condition discussed above in order to permit him to maintain his relationship with his 9 year-old son. The district court stated that it was prohibiting such contact, but added that the probation officer might modify the condition in the future.
The Court of Appeals reversed on procedural grounds. The Court explained that it needed to consider both the important societal interest in protecting children and a parent’s due process rights concerning his relationship with his children. The Court stated: “Whether the purpose of the condition was to protect other children or to protect Donohue’s son, the district court was required to create a full record to determine whether Donohue has any parental rights that triggered due process concerns.” The Court very much left open the idea that the special condition could be imposed on remand, after additional fact-finding. But the Court wanted the district court to address the following subjects: (i) to identify explicitly the sentencing goal behind the special condition; (ii) explain whether the protection of Donohue’s son was one of the sentencing goals animating the special condition; (iii) determine whether Donohue’s relationship with his son is “sufficiently established” to merit constitutional protection; and (iv) whether the condition is a “greater deprivation of liberty than is reasonably necessary,” as is required where fundamental rights are at issue.
The district court’s concerns about the defendant’s access to children seem very well-placed given the defendant’s record. Not only did the defendant commit a child pornography offense, but his illegal conduct continued unabated post-incarceration. The defendant must be prevented from harming children. At the same time, the Circuit is insisting on the procedural formalities that are accorded even to defendants who have committed offenses that harm children. As we have seen in recent months, the Circuit is very closely scrutinizing supervised release conditions to see that they are tailored to fit the crime, and that they are based on a well-developed record. Otherwise, the Circuit has shown little reluctance to reverse and remand for further proceedings. See, e.g., United States v. Betts (reversing alcohol restriction); United States v. Browder (reversing mental health treatment condition).