Cole Donahue | Supervised Splits: Vagueness and Constitutionality in the Conditions of Federal Supervised Release

BACKGROUND

Supervised release and parole are similar tools in the federal criminal justice system, and serve similar purposes. Released prisoners living under the conditions of both supervised release and parole are in the custody of their assigned parole officer and must also follow court-imposed conditions and guidelines to remain out of prison—like the conditions suggested in the Federal Sentencing Guidelines.

Take, for example, Soulemane Barry, who used fake credit, debit, and gift card to make purchases for approximately two hours. He was convicted of attempting to use “counterfeit access devices” in violation of 18 U.S.C. § 1029. As part of his sentence, he was given two years of supervised release, with many commonly applied supervised release conditions. Specifically, Barry was prohibited from “frequent[ing] places where controlled substances are illegally sold, used, distributed, or administered.”

Barry challenged the District Court’s imposition of this condition, arguing that it was unconstitutionally vague. In short, Barry argued that the condition “neither specifies how many trips result in ‘frequent[ing]’ sites of drug activity, nor does it clarify whether Barry must knowingly be in such a place to violate it.” Ultimately, in December 2018, the Third Circuit rejected Barry’s argument in United States v. Barry. The Third Circuit’s decision means that another federal appellate court has taken a position in a burgeoning circuit split.

THE ISSUE

Is a supervised release condition that prohibits “frequent[ing] places where controlled substances are illegally sold, used, distributed, or administered” unconstitutionally vague?

THE SPLIT

The Third Circuit did not create the circuit split on this issue—prior to its decision, the Seventh, Ninth, and Tenth Circuits had all taken a position. The Ninth and Tenth Circuits, in United States v. Phillips (2012) and United States v. Llantada (2016), respectively, held that the condition in question isn’t unconstitutionally vague. In Phillips, the Ninth Circuit focused on a “common sense reading,” drawing on the dictionary definition of “frequent.” It analogized the term “frequent” to “associate,” which it had previously held that “‘men of common intelligence’ could understand.” The court concluded that “a reasonable person would understand the prohibition on ‘frequent[ing] places’ where illegal drugs are used or sold prohibits [a defendant] from knowingly going to a specific place where drugs are illegally used or sold, but that it does not prohibit him from living in Seattle or going to a given neighborhood simply because a person is selling drugs somewhere within that neighborhood.”

In Llantada, the Tenth Circuit’s reasoning echoed the Ninth’s, but rejected the appellant’s argument much more cursorily. The court there noted that it “reject[s] this type of literal reading of the condition,” and observed, “The probation officer, and any judges tasked with deciding whether Llantada violated the condition, must interpret the condition in a reasonable, commonsense manner. We have little doubt that the condition allows for reasonable interpretation and enforcement.”

The Seventh Circuit, on the other hand, struck down several supervised release conditions in United States v. Thompson (2015) among them, the prohibition on “frequent[ing] places where controlled substances are illegally sold, used, distributed, or administered.” In Thompson, the court criticized this prohibition as providing no “indication of how many trips constitute ‘frequent[ing]’ such places.” The Seventh Circuit rejected the Ninth’s approach in Phillips, arguing that the limitations of supervised release should be clearly established in the condition itself, because “otherwise the defendant may think himself bound by the broader interpretation.” The court summarized its concern with a snappy example: “If you’re 90 percent certain that purchasing girl scout cookies from someone who rings your doorbell wouldn’t violate a condition of supervised release, do you want to risk going back to prison because you may have guessed wrong? If out of caution therefore you decline to purchase the cookies, the sentencing guideline would deter lawful conduct, and thus be overbroad.”

In arriving at its opinion that the District Court didn’t err in imposing this condition, the Third Circuit took a relatively neutral position in Barry—it upheld the condition but cautioned the District Court against its imposition. The court noted the posture of the case and the legal standard required—“any mistake by the District Court in imposing this condition is not plain error”—as its main justification for upholding the condition. But the court urged the District Court to reconsider in its conclusion: “We recognize, however, given the split of authority . . . Barry’s concerns regarding these conditions are not unwarranted. We therefore encourage the District Court . . . to impose the updated condition recommended by the Sentencing Guidelines in place of the controlled-substance and association conditions.”

CONCLUSION

Suppose that a man is released from prison on a term of supervised release. Deprived of his ability to enjoy his favorite food, he’s excited to return to his favorite hole-in-the-wall restaurant. But the restaurant happens to be in an area known for high drug use. Would visiting the restaurant violate the terms of his supervised release, if it contains the aforementioned condition? What factors would be relevant in answering this question: Must people inside or immediately outside the restaurant be using drugs? Is it a problem if people just near the restaurant are?

The different circuits’ answers to this question illustrates the key problem with different interpretations of the same release conditions. The activities of different parolees or supervised releasees in different places may be chilled, depending on how their circuit answers this question. A ruling by the Supreme Court on this narrow, technical question—or a broader ruling that more generally addresses constitutional vagueness in release conditions—would provide a resolution not only to this specific question, but would also make supervised release and parole more transparent. Courts and parole officers would be able to more effectively implement these programs, and releasees and parolees would be able to more effectively abide by them.