The Imposition of Discretionary Supervised Release Conditions: Nudging Judges to Follow the Law
When a federal court sentences a defendant to prison, the judge may choose to impose a term of supervised release. Supervised release is a “system of post-incarceration supervision” designed to help reintegrate defendants into their communities and to protect public safety by requiring that defendants follow conditions advancing these two goals. In making this choice, judges are required by 18 USC § 3553(a) to independently weigh the imposition of discretionary conditions and by 18 USC § 3553(c) to provide reasons for imposing discretionary conditions to ensure that they are tailored to the defendant’s circumstances. Nevertheless, the Seventh Circuit recently observed that sentencing judges regularly fail to fulfill this legal duty by forgoing independent assessments of the appropriateness of discretionary conditions for individual defendants. In particular, judges appear to frequently impose thirteen discretionary conditions recommended by the United States Sentencing Commission—called “standard conditions”— without considering whether they enhance public safety or rehabilitation in each case.
This practice is troubling because Congress intended supervised release to be curative, not punitive. Since courts already punish defendants with prison sentences, Congress instructed judges to consider only nonpunitive factors when imposing conditions of supervised release. By imposing standard conditions without considering their applicability to particular defendants, courts expand defendants’ liability for violating conditions of supervised release, which can itself carry a new prison term. More fundamentally, unjustified discretionary supervised release conditions unduly restrict defendants’ freedom of association and will probably go unchallenged by most defendants. “[O]nce a defendant is serving supervised release, he typically finds himself without the right to counsel and may lack the legal sophistication to recognize the potential infirmities in the conditions he has been ordered to obey.” Given these stakes, judicial inattention to discretionary supervised release conditions warrants further inquiry.
This Comment advances the literature on this problem by providing the first examination of sentencing judges’ compliance with § 3553(c) when imposing discretionary conditions of supervised release. In making this contribution, this Comment offers insight into the effectiveness of appellate guidance in mitigating this problem. It appears that appellate guidance has had little effect on sentencing judges’ regular noncompliance with their obligation to provide reasons for imposing discretionary conditions of supervised release and may be an ineffective remedy for this problem. Based on both this observation and consideration of behavioral psychology literature, this Comment argues that the current format of the judgment-and-commitment form used by judges to impose supervised release hinders their ability to fulfill this legal obligation. By presenting standard conditions in boilerplate language on this form, federal courts have established a default format that creates recurring opportunities for judicial noncompliance. Ultimately, this Comment advocates two proposals. First, sentencing judges should eliminate the boilerplate language used to impose standard conditions. Second, sentencing judges should hold follow-up sentencing hearings when they lack adequate information to comply with their sentencing obligations.