BEING “ON PAPER”: A SUMMARY OF SUPERVISED RELEASE, PROBATION, PAROLE
Derek W. Logue of OnceFallen.com, Posted 12 September 2021

Many folks seem to be confused about issues related to supervised release, probation, or parole. If you are subjected to any of these processes, you are considered to be “on paper”). Those who are “on paper” have fewer rights than non-supervised Registrants. For example, you cannot refuse a warrantless search while “on paper” but certainly have that right if you are not under supervision.

Note: This page is specifically for those Registrants who are ALSO on probation, parole, or supervised release. If you have “EOS’ed” or “killed your number” (i.e., released after serving your full sentence and thus have no probation or parole responsibilities), then this page will not apply to you.

DIFFERENCES BETWEEN A PROBATION/PAROLE OFFICER AND A REGISTRATION OFFICER

It is extremely important to understand the difference between probation, parole, or supervised release and sex offense registration. Being forced to register is NOT the same as being “On Paper.”

Registration officers are NOT Parole or Parole Officers (POs)!

A PO may be able to make certain rules setting curfews or requiring you to go to counseling. A Registration officer’s only duty is enforcing SO laws, particularly the act of entering registration information, verifying your address, and community notification (if applicable). Registration Officers do not make rules; they merely enforce existing laws. Though registry officers may conduct compliance checks, they cannot enter your home without your permission or a warrant unless you are “On Paper.”

Registration officers will take complaints from citizens who assume registration officers and POs are the same. Some LEOs hope you don’t understand the difference; they hope you will continue to follow rules that no longer apply to you. For example, some local agencies promoting Halloween curfews that apply only to those on probation or parole, may omit that information when talking to the media or in press releases. They do this in hopes of luring registrants to follow rules that they are no longer required to follow. It is your responsibility to know your rights.

RULES YOU MAY FACE WHILE ON SUPERVISION

Registered citizens will face more rules, and most likely more oversight than registrants “off paper” or non-registrants “on paper.” Rules vary by state or other jurisdiction (Federal has their own rules), and not every state publicly posts their rules online.

STATE RULES FOR SUPERVISION

In the following discussion of these types of rules, I will use Wisconsin as an example because their rules are publicly posted online. (I also chose Wisconsin because the Wisconsin state prisoners currently comprise the second largest subscriber group in my Corrlinks network as of 9/12/2021.) As stated, rules can vary state-to-state; however, and many supervision rules have similar restrictions to those in Wisconsin.

There are standard rules (rules that apply to all under supervision) and discretionary rules, i.e. additional rules that could be added to your terms of release by the courts or a PO.

In summary, Wisconsin, has 18 “standard rules of Supervision,” including notification for changes of housing or employment status, the payment of court and monitoring fees, getting permission to travel; borrow money; organize an event; subject yourself to random home/drug searches, and the requirement to attend all mandatory meetings, etc. The last Wisconsin general supervision rule is to “Comply with any court ordered conditions and/or any additional rules established by your agent. The additional rules established by your agent may be modified at any time as appropriate.” In other words, the PO has discretion to make up his/her own rules.

Here are the specific “standard rules in full:

You Shall:

1. Avoid all conduct which is in violation of federal or state statute, municipal or county ordinances, tribal law or which is not in the best interest of the public welfare or your rehabilitation.
2. Report all arrests or police contact to your agent within 72 hours.
3. Make every effort to accept the opportunities and cooperate with counseling offered during supervision to include addressing the identified case plan goals. This includes authorizing the exchange of information between the department and any court ordered or agent directed program for purposes of confirming treatment compliance; and subsequent disclosure to parties deemed necessary by the agent to achieve the purposes of Wisconsin Administrative Code Chapter DOC 328 and Chapter DOC 331. Refusal to authorize the exchange of information and subsequent disclosure shall be considered a violation of this rule.
4. Inform your agent of your whereabouts and activities as he/she directs.
5. Submit a written report monthly and any other such relevant information as directed by DCC staff.
6. Make yourself available for searches including but not limited to residence, property, computer, cell phone or other electronic device under your control.
7. Make yourself available for tests and comply with ordered tests by your agent including but not limited to urinalysis, breathalyzer, DNA collection and blood samples.
8. Obtain approval from your agent prior to changing residence or employment. In the case of an emergency, notify your agent of the change within 72 hours.
9. Obtain approval and a travel permit from your agent prior to leaving the State of Wisconsin.
10. Obtain written approval from your agent prior to purchasing, trading, selling or operating a motor vehicle.
11. Obtain approval from your agent prior to borrowing money or purchasing on credit.
12. Pay court ordered obligations and monthly supervision fees as directed by your agent per Wisconsin Statutes, and Wisconsin Administrative Code; and comply with any department and/or vendor procedures regarding payment of fees.
13. Obtain permission from your agent prior to purchasing, possessing, owning or carrying a firearm or other weapon, or ammunition, including incapacitating agents. An offender may not be granted permission to possess a firearm if prohibited under federal or state law.
14. Not vote in any federal, state or local election as outlined in Wisconsin Statutes s.6.03(1)(b) if you are a convicted felon, until you have successfully completed the terms and conditions of your felony sentence and your civil rights have been restored.
15. Abide by all rules of any detention or correctional facility in which you may be confined.
16. Provide true, accurate, and complete information in response to inquiries by DOC staff.
17. Report as directed for scheduled and unscheduled appointments.
18. Comply with any court ordered conditions and/or any additional rules established by your agent. The additional rules established by your agent may be modified at any time as appropriate.

Wisconsin has the following stipulations specific to Registered Persons (copied verbatim):

• “Have no contact or attempt contact with (blank space to add whoever the PO desires) nor with any prior victims of your offenses nor their family members without prior agent approval. Contact includes face-to-face contact, contacts facilitated by third parties and any other forms of communication including but not limited to telephone, computer, mail and any other electronic or scientific means.
• Fully cooperate with, participate in, and successfully complete all SO evaluations related to risk and treatment.
• Fully cooperate with, participate in, and successfully complete all SO services deemed appropriate through the SO evaluation process. Successful completion shall be identified through completion criteria determined through the sex SO standards.
• Not reside nor “stay” overnight in any place other than a pre-approved residence without prior agent approval. “Overnight” is defined as the daily period of time between the hours of _ pm and _ am unless redefined by your agent in advance.
• Permit no person to reside nor stay in your designated residence between the hours of _ pm and _ am without prior agent approval. (Times defined by agent.)
• Comply with any additional SO rules that may be established by your agent. The rules may be modified at any time as appropriate.”

As the information above clearly indicates, the “agent” (either the PO or the court) has power to change or add rules to the terms of supervised release in Wisconsin.

(Source: “Standard Rules of Community Supervision.” WIDOC. Accessed 9/12/2021 at https://doc.wi.gov/Pages/AboutDOC/CommunityCorrections/SupervisionRules.aspx)

Federal Supervised Release

For federal parolees, mandatory conditions of supervised release are set forth in 18 USC §3583(d) and USSG §5D1.3(a). These mandatory conditions include that a defendant not commit another offense while on supervision; refrain from unlawful use of controlled substances and submit to drug testing; make restitution to the victim of the offense; and submit to the collection of a DNA sample, among others. The only additional mandatory stipulation for Registrants is the requirement to register according to the laws of your jurisdiction of residence (18 USC §3583(d); USSG §§5D1.3(a)(7)(A) and (B)).

Many districts have set forth standard conditions of supervision in general orders, usually available on the US District Court’s website. Sentencing courts have discretion to impose any of the conditions listed in §5D1.3 or to create and impose “any other condition it considers to be appropriate.” A discretionary supervised release condition may be imposed if it is “reasonably related” to the statutory sentencing factors in 18 USC §3553(a)(1) and §3553(a)(2)(B)-(D). These factors include the nature and circumstances of the offense, the history and characteristics of the defendant, the need to protect the public from further crimes by the defendant, and the need to provide educational or vocational training, medical care, or other correctional treatment, involves “no greater deprivation of liberty than is reasonably necessary” to serve the purposes of deterrence, protection of the public, and training and treatment; and is consistent with any policy statements issued by the Sentencing Commission.

The guidelines recommend that, in every case, the court impose the 15 “standard” conditions of supervised release set forth in USSG §5D1.3(c). These standard conditions require the convicted person to:

• Obtain permission to leave the area,
• Report to the probation office as directed,
• Maintain or seek employment,
• Avoid excessive alcohol use and any use of a controlled substance without a prescription, and
• Report any contact with law enforcement to the probation office, among others.

For those convicted of sex offenses, the standard conditions require the convicted person to:

• Participate in a treatment and monitoring program,
• Limit the use of a computer or access to the internet (if the defendant used computers or the internet to commit the offense), and
• Permit law enforcement to search his person or property if law enforcement has a reasonable suspicion that the defendant violated the terms of supervised release or committed any other unlawful act.

In short, federal courts and POs abiding by USSG §5D1.3 have a list of mandatory conditions for release, some recommended “standard” conditions of release, the option to create “discretionary” rules as deemed necessary, and “special” conditions that are applied to certain cases (including sex offense convictions) and rules that can be applied on a case-by-case basis. The complete statute of USSG §5D1.3 can be found in Appendix 3 under “federal registration notes.”

SOCIAL MEDIA/INTERNET BANS WHILE ON PAPER

As of September 2021, there is an ongoing legal battle on internet bans for Registrants on paper. SCOTUS suggested in Packingham v NC that they would be open to a narrowly tailored internet or social media ban, and currently some jurisdictions have upheld internet/social media restrictions, and others have not.

In Packingham v. NC, 137 S.Ct. 1730 (US 2017), the US Supreme Court decision declared social media bans targeting people listed on SOR were unconstitutional. However, the justices hinted they would be open to a upholding a legal challenge where a narrow internet ban was imposed as a condition of supervision for a Registrant if the offense involved the Internet. Since that decision, there have been numerous decisions, some good and some bad, have decided if/when internet bans can be imposed as a supervision condition.

It seems only a matter of time before SCOTUS revisits this issue, especially given the split between US Circuit courts, with the 3rd, 4th, and 5th Circuits ruling in favor of the right to Internet access for Registrants on supervision, while the 4th, 8th, and 11th Circuits upheld various Internet bans while under supervision. (Note that the 4th Circuit make both a favorable and unfavorable ruling on Internet use while on supervision). There is also a split in state-level courts on the subject of Internet identifier disclosure (which impacts the right to free and anonymous speech); New York dismissed a charge for failing to disclose a Facebook page under the state’s eSTOP law, while New Jersey and Florida have upheld criminal convictions based on failure to disclose Internet identifiers.

Rulings favorable to the Registered Person On Paper:

• US v. Ellis, No. 19-4159 (4th Cir. 2021): Opinion vacating conditions of supervised release banning individual from the internet, and from possessing legal pornography.
• State v. Hotchkiss, No. 2020 MT 269 (MT 2020): MT Sup Ct opinion reversing a trial court’s imposition of conditions of supervision restricting internet access, where the underlying offense had no nexus with the internet.
• US v. Becerra, 977 F.3d 373 (5th Cir. 2020): Vacating, on plain error review, a supervised release condition that imposed a ten year ban on internet and computer usage.
• US v. Herndon, No. 18–50541 (5th Cir. 2020): Vacating various conditions of supervised release imposing bans on internet access, computer use, and other activities and remanding for re-sentencing.
• State v. RK, No. A-2022-18T2 (NJ Super. Ct. App. Div. 2020): NJ appellate court finding that blanket social media ban imposed on people on supervised release was unconstitutional under the 1st Amdt
• US v. Arbaugh, No. 18–4575 (4th Cir. 2020): Opinion affirming in part a federal sentence for engaging in illicit sexual conduct with a minor in a foreign country, but reversing in part on the grounds that the district court failed to articulate reasons supporting computer-related conditions of supervised release.
• Fazili v. Commonwealth, No. 1379-18-4 (VA Ct. App. 2019): VA Court of Appeals reversing trial court’s imposition of general internet usage restriction as a condition of probation without articulating why such a condition would be narrowly tailored.
• US v. Eaglin, 913 F.3d 88 (2nd Cir. 2019): Reversing trial court imposing internet ban and prohibition on viewing pornography as substantively unreasonable conditions of federal supervised release.
• US v. Holena, 906 F.3d 288 (3rd Cir. 2018): In context of revocation of Supervised Release, reversed imposition of lifetime internet use ban.
• Weida v. State, 94 N.E.3d 682 (IN 2018): IN Sup Ct holding that requirement that person on supervision for sex offense obtain approval from probation officer to access internet was unreasonable.
• People v. Ellis, No. 54 (NY 2019): NY Court of Appeals reversing decision of a trial court in refusing to dismiss an indictment charging Appellant with violating NY’s e-stop law for failing to disclose a Facebook account.
• Doe v. Tilley, 283 F.Supp.3d 608 (ED KY 2017): Federal civil rights lawsuit striking down KY state social media ban and internet identifier registration requirements.
• US v. Malenya, 736 F.3d 554 (DC Cir. 2013): DC Circuit Court of Appeals opinion reversing imposition of conditions of supervised release which, amongst others, prohibited defendant from using or possessing a computer or accessing any online service without prior approval.
• State v. Cornell, 146 A.3d 895 (VT 2016): VT Sup Ct reversal finding varied conditions of probation were overbroad and invalid.
• JI v. NJ State Parole Board, 155 A.3d 1008 (NJ 2017): NJ Sup Ct reversal of parole boards imposition of condition that registrant was banned from using internet-capable devices.

Rulings favorable to the state (upholding Internet/social media bans/restrictions):

• US v. Hamilton, No. 19-4852 (4th Cir. 2021): Opinion vacating lifetime supervised release conditions relating to employment where there was no connection between employment and the offense of conviction, but upholding two other conditions related to internet use and presence restrictions (unfavorable in terms of Internet use)
• US v. Bobal, No. 19–10678 (11th Cir. 2020): Lifetime computer restrictions for an individual on supervised release did not violate the 1st Amendment.
• US v. Carson, No. 17–3589 (8th Cir. 2019): Affirming imposition of social media-related restrictions for individual on federal supervised release.
• Iowa v. Aschbrenner, No. 18–1045 (Iowa 2019): IA Sup Ct Opinion affirming the conviction of Appellant who was charged with violating Internet Identifier reporting requirements over challenges based on Ex Post Facto and 1st Amdt grounds.
• Delgado v. Swearingen, No. 16-CV–501 (ND FL 2018) Held, in context of civil rights lawsuit under 1st & 14th Amendments, those FL statutes requiring those on SOR provide internet identifiers to authorities were constitutional, though enjoined FDLE from public disclosure.
• US v. Comer, No. 19-4466 (4th Cir. 2021): Upheld a supervision condition of requiring permission to open a social media account, finding that as applied to Appellant’s case the condition prohibiting her from social network use without prior approval was not void for vagueness, that it did not constitute a greater deprivation of liberty than is necessary and that it was not an impermissible delegation of judicial authority. (Note: Comer was convicted of using social media to lure women into prostitution & violated probation by using social media to broker a drug deal, so his case was specifically an Internet-related offense.)

Other legal arguments that may be useful in challenges to Internet/social media bans while on paper:

• 18 USC 3593 (d)(2) establishes any special conditions of supervised release must entail “no greater deprivation of liberty than is reasonably necessary for the purposes” of sentencing articulated in 18 USC 3553(a)(2)(B),(a)(2)(C), and (a)(2)(D).
• US v Scott, 316 F.3d 733 (7th Cir.2003): VACATED AND REMANDED special condition of supervised release requiring agent consent to access the Internet.
• US v Holm, 326 F.3d 872 (7th Cir.2003):VACATED AND REMANDED condition of probation banning computer and Internet access, despite serving sentence for posessing 10,000-20,000 images of CP.

While the courts are mostly rejecting Internet or social media bans , some have upheld such restrictions, particularly where the offense was related to Internet or social media usage. Do not be surprised if you are given an internet/social media ban while on paper.

YOUR RIGHTS DURING “SEX OFFENDER TREATMENT”

Some courts may require order you to take treatment. You may be required to pay for expensive therapy or endure controversial testing practices like polygraphs or penile plethysmographs. Unfortunately, problems with a treatment provider can only be addressed either with the PO, the probation/parole board supervisor, or by petitioning the court for a change in treatment.

Polygraphs: A consensus of legal decisions regarding polygraph usage agree that despite the majority of studies on polygraph use suggesting the polygraphs are not effective tools in “sex offender” treatment, courts still allowed states to use the polygraph as a “treatment” tool. While you generally lack the ability to refuse to take the entire polygraph test, you SHOULD have the right to plead the 5th Amendment ONLY WHEN that particular question could lead to future criminal charges. There should be agreements written out in treatment programs and/or polygraphs that specifically state whether or not the results can be used against you in a court of law.

For more on the polygraph controversy and legal history, see https://oncefallen.com/polygraph/

Despite the well-known fact the polygraph is nothing more than smoke and mirrors, some of you still believe they work and search online for techniques to “beat” the polygraph. Polygraphers look for evidence you’re employing these tricks as evidence you’re hiding something, so don’t waste your time and money on these so-called tricks to “sting” the polygraph. Most people who fail the poly do so because (1) they are using some technique they learned online, like holding your breath or the thumbtack in the shoe (2) you act in another way that may seem suspicious, such as pause on a question or try to over-explain something, or (3) you didn’t actually fail but are told you did in hopes you’ll confess to something.

PPGs (Penile Plethysmographs/”Peter Meters”): In U.S. v. Weber, 451 F.3d 552 (9th Cir. 2006), the Court ruled the PPG is an intrusive procedure, both physically and psychologically, likening the procedure to a device from a George Orwell novel. The court utilized a standard of review involving tests that are “non-routine manipulative intrusions on bodily integrity” and that such tests “will be scrutinized” to determine whether there are less intrusive options. While the court concluded that the level of accuracy of penile plethysmography reported in the scientific literature is low and that the test’s true validity is academically controversial, this test could be a required condition for supervised release if there was evidence supporting the efficacy of this test over less intrusive procedures, such as the Abel and polygraph tests.

Abel Assessments: In United States v. Birdsbill, No. 03-30204 (9th Cir. May 4, 2004, unpublished), the Court also ruled the Abel test can be used for treatment, but is unreliable to be used as evidence to determine sexual deviancy for five reasons:

1. The AASI test is a psychological instrument to be used for treatment, not for diagnostic purposes, and it is not designed to assess the tendency of a person to abuse children sexually;
2. Dr. Abel did not use a control group and it is unclear how or whether the test ferrets out “fakers”;
3. The test has not been subject to adequate peer review because Dr. Abel has proprietary rights over the test and has not shared his formula with other scientists (and those who have tried to assess the test’s validity have come up with dubious and inconsistent results);
4. The potential error rate “varies from poor … to appalling,” which makes it an unreliable instrument; and
5. The relevant scientific community does not generally accept the AASI test as a diagnostic test for pedophilia.

However, U.S. v. Stoterau, 524 F.3d 988 (9th Cir. 2008), the same Court rejected an argument the Abel test is intrusive, noting the test was far less intrusive than a PPG, does not implicate a particularly significant liberty interest, and while inadmissible in court, the test could be used as part of a treatment plan. The court concluded even unreliable tests like the Abel test has “value” in “rehabilitation” and “treatment” in determining attraction to children.

In short, arguments against the use of tests otherwise inadmissible as evidence in courts are usually allowed in treatment settings unless the condition is overly intrusive when less intrusive alternatives exist (as the polygraph and PPG are strapped to the human body), or if specific questions would trigger a violation of a 5th Amendment right against self-incrimination (i.e., a question about your sexual history leading to a new criminal case levied against you.) Only under these circumstances would you find relief through the courts.

CHALLENGING SUPERVISION CONDITIONS

If you feel your PO is violating the law or harassing you or you feel a certain rule is going too far, you could choose to file a complaint with the supervisor at the probation/parole office, with the State Police (on the state level) or the FBI (on the federal level). In all honesty, that likely won’t go far. Thus, you may have to go to court to get relief from a bad PO or to challenge a condition of your release.

In challenging conditions of supervision, the short answer is that there IS a chance a bad rule can be challenged successfully, and it is even possible to get terminated from lifetime supervision. The report below is NOT detailed but is merely a brief discussion about federal supervision appeals and termination. The information listed below covers challenging federal supervision conditions but the same arguments could be applied to the state courts.

The link to the full article: https://www.ussc.gov/sites/default/files/pdf/training/primers/2015_Primer_Supervised_Release.pdf

Early Termination of Supervised Release

A court may terminate supervised release “at any time after the expiration of one year of supervised release . . . if it is satisfied that such action is warranted by the conduct of the defendant released and the interests of justice.” (18 USC §3583(e)(1))

The guidelines “encourage . . . [courts] to exercise this authority in appropriate cases,” particularly noting that a court may impose a longer term of supervised release on a defendant with a drug, alcohol or other addiction, but may then terminate the supervised release term early when a defendant “successfully completes a treatment program, thereby reducing the risk to the public from further crimes of the defendant.” (USSG 5D1.2, cmt. n. 5)

A court may terminate supervised release early even if the statute of conviction originally required a particular term of supervised release. See, e.g., US v. Spinelle, 41 F.3d 1056, 1069 (6th Cir. 1994); US v. Gainer, 936 F.Supp.785, 786 (D. Kan. 1996); US v. Scott, 362 F. Supp. 2d 982, 984 (N.D. Ill. 2005); US v.McClister, 2008 WL 153771, *2 (D. Utah 2008); but see US v. Hernandez-Flores, 2012 WL 119609,*4 (D. NM 2012) (expressing reservations, but declining to reach the issue because the defendant’s conduct did not merit early termination even if 8the court had the authority to grant it).

Appellate Issues

A term of supervised release will be reviewed for reasonableness in light of the court’s stated reasons, as with a sentence of imprisonment. See, e.g., US v. Presto, 498 F.3d 415, 418 (6th Cir. 2007) (discussing procedural and substantive reasonableness of lifetime term of supervised release); US v. Hayes, 445 F.3d 536, 527(2nd Cir. 2006). But see US v. O’Georgia, 569 F.3d. 281, 289 (6th Cir. 2009) (where a district court has articulated § 3553(a) factors in imposing its sentence, a repetition of those factors in support of a term of supervised release would serve no useful purpose in the ordinary case).

Appeal of Challenged Conditions

Challenges to conditions of supervised release are ordinarily reviewed on appeal for abuse of discretion, (See, e.g., US v. Watson, 582 F.3d 974, 981 (9th Cir. 2009); US v. Stults, 575 F.3d 834 (8th Cir. 2009); US v. Theilemann, 575 F.3d 265 (3d Cir. 2009)) although the issue of “whether a supervised release condition illegally exceeds the [district court’s statutory authority] or violates the Constitution is reviewed de novo.” (See, e.g., Watson, 582 F.3d at 981) (“De novo” means “from the beginning.”)

Unpreserved claims that a district court imposed an invalid condition raised for the first time on appeal are reviewed only for “plain error” under Federal Rule of Criminal Procedure 52(b). (See, e.g., US v. Weatherton, 567 F.3d 149, 152 (5th Cir. 2009).)

Appeal of Revocation Conditions

The issue of whether a district court had jurisdiction to revoke supervised release is reviewed de novo. See, e.g., US v. Johnson, 581 F.3d 1310 (11th Cir. 2009).

The district court’s factual findings that a defendant violated the conditions of release are reviewed for clear error; legal conclusions are reviewed de novo. See, e.g., US v. Farmer, 567 F.3d 343 (8th Cir. 2009); US v. Kontrol, 554 F.3d 1089 (6th Cir. 2009).

If the government proved by a preponderance of the evidence that the defendant violated a valid condition of supervised release, the district court’s decision to revoke supervised release is reviewed for abuse of discretion. See, e.g., US v. Black Bear, 542 F.3d 249 (8th Cir. 2008). See also US v. Disney, 253 F.3d 1211 (10th Cir. 2001) (district court abused its discretion when it revoked defendant’s supervised release for inquiring into address of DEA case agents because inquiry did not violate statute proscribing threats or intimidation of law enforcement officers); US v. Turner, 312 F.3d 1137 (9th Cir. 2002) (district court abused its discretion in revoking defendant’s supervised release where record did not support court’s finding that defendant had incurred new debt).

With respect to appellate review of the type and length of the sentence imposed upon revocation, the federal courts of appeals are divided over whether sentences are reviewed under a Booker-type “reasonableness” standard or, instead, under the “plainly unreasonable” standard that uniformly was followed in supervised release appeals before Booker. Compare, e.g., US v. Bungar, 478 F.3d 540 (3d Cir. 2007) (“reasonableness” standard), with US v. Crudup, 461 F.3d 433 (4th Cir. 2006) (“plainly unreasonable” standard). See also US v. Sweeting, 437 F.3d 1105 (11th Cir. 2006) (holding that “unreasonable” and “plainly unreasonable” have essentially the same meaning).

Ripeness and Mootness Issues on Appeal

On a regular basis, appellate courts must decide whether a defendant’s challenge to a condition of supervised release is ripe when raised on direct appeal of the original sentence (as opposed to being raised on appeal of a judgment revoking supervised release for a violation of the challenged condition). The courts of appeals have issued inconsistent decisions regarding ripeness of challenges to conditions raised on direct appeal. Compare, e.g., US v. Lee, 502 F.3d 447 (6th Cir. 2007) (on direct appeal of his original sentence, defendant’s challenge to a condition requiring penile plethysmograph testing was deemed not ripe for review; court held that his challenge could not be brought until after he was released from prison because there was no guarantee he would ever be subject to the test; if a probation officer sought to implement that condition, the defendant could move to modify the condition under 18 USC 3583(e)(2) and appeal if he were to lose), with US v. Weber, 451 F.3d 552 (9th Cir. 2006) (defendant’s challenge to plethysmograph testing as supervised release condition was ripe for review on direct appeal and prior to the defendant’s release from prison). See also US v. Myers, 426 F.3d 117 (2d Cir. 2005) (challenge to constitutionality of condition that defendant convicted of possessing CP could not visit with his son unless supervised was ripe prior to release from imprisonment because a motion to modify the condition after release under 18 USC §3583(e)(2) cannot challenge the lawfulness of the condition).

Similarly, the courts are divided as to whether an appeal from a judgment of revocation is the appropriate point at which to challenge a condition when the challenge was not originally made on direct appeal. See, e.g., US v. Brimm, 302 F. App’x 588, 589 (9th Cir. 2008) (“We also reject the government’s contention that Brimm waived the right to appeal the conditions of his supervised release because he waited until after he violated the conditions before he challenged them. Compare US v. Jeremiah, 493 F.3d 1042, 1044, 1046 (9th Cir. 2007) (finding jurisdiction to hear the appellant’s challenges to the conditions of his supervised release during an appeal of the revocation of supervised release)”), with US v. Ofchinick, 937 F.2d 892, 897 (3d Cir. 1991) (“We deem an order to be ripe for appeal in the present context when a . . . condition of probation . . . is imposed, and failure to timely appeal will result in a waiver. The imposition of such a condition or sanction, if opposed, creates a controversy worthy of adjudication and is of sufficient immediacy to establish ripeness.”).

Finally, courts have held that a defendant’s challenge to the district court’s revocation of supervised release on appeal is moot if the defendant has been unconditionally released from all types of custody (including any recommenced term of supervised release) at the time that the appellate court hears the appeal. See, e.g., US v. Hardy, 545 F.3d 280, 284 (4th Cir. 2008) (“courts considering challenges to revocations of supervised release have universally concluded that such challenges also become moot when the term of imprisonment for that revocation ends”).

CONCLUSION

If you are newly free, you’ll want to celebrate. I get it. But if you want to STAY free, then you must take registration and supervision laws seriously. These laws are rigid, and many POs love to send Registered Persons back to prison for the smalles infractions. Don’t fall into a cognitive distortion I call the “FALL”—the “Free At Long Last” syndrome.

Multiple studies have found that most people who return to prison do so within the first three years of release. According to the 2014 California Dept. of Corrections and Rehabilitation Outcome Evaluation Report, 5522 (65.2%) of the 8471 persons convicted of sex offenses released from the CDRC in the 2009-2010 Fiscal Year were returned to prison within 3 years of release. But of those 5522 returns:

• 5074 (91.9%) returned on a parole violation;
• 294 (5.3%) returned on a new non-sex crime;
• 109 (2%) returned for a “Failure To Register” (FTR) Offense; and
• 45 (0.8%) returned for a new sex offense

You are far more likely to be sent back to prison for a parole violation or FTR than for a new sexual offense. There are many ways you can be in violation and be sent back to prison (Note: this is by no means an exhaustive list):

FTR: Violations can include failing to pay fees, failure to update registry information (could be email address, phone number, vehicle info, physical address), Failure to notify authorities of travel (most states require notice of gone from home a certain length of time, and federal guidelines require 21 days’ advance notice of international travel)

Supervision Violations can include: Failing to pay fees, missing or being late to therapy sessions or refusing to participate in treatment (which may include refusing to take the poly/PPG), missing curfew or a check-in with the PO, or breaking any of the mandatory rules or any discretionary rules made by the courts/PO (Internet/Social Media bans while on paper are a particularly controversial rule and are currently contested in the courts).

Our lives unfortunately revolve around these rules. We literally have to drop everything and schedule the daily activity of our lives with these rules in mind. Horror stories exist of RCs being arrested for failing to update an email address, for being late to counseling sessions, for the inability to pay exorbitant fees, or (the one I hear the most) for assuming that state registry offices share information; the RC doesn’t tell registry office A of a move to location B because they think registry offices share information. They assume the new registry office will tell the old office about the move. This simple, innocent, faulty assumption can result in a FTR charge. You need to know the laws that apply to you and follow them. You will not necessarily get any sympathy from the courts, your PO, or your registry officer. Strict adherence to these rules is YOUR responsibility!