Probation Deep Dive: Conditions of Federal Supervised Release

This is a deep dive into the conditions a defendant must follow on supervised release, for a general primer on supervised release as a whole, please visit our main Federal Supervised Release page.

When a federal criminal sentence is handed down, over 90% of those sentences include time in prison. Federal sentences are broken up into incarceration time and supervision time. When no prison time is given, the supervision time is called “Probation.”

When there is a sentence of prison time, the supervision after prison is called “Supervised Release.” The distinction is not usually important. Defendants are supervised by the same office, and usually by the same officers in the United States Probation Office near where they live.

The difference comes into play when the supervision term needs to be modified somehow. Probation and Supervised Release are governed by different statutes (laws).

For supervised release (a vast majority of cases), changes in supervision are governed by 18 U.S.C. §3583(e), whereas probation is governed by §3564. That, however, is a topic for a different blog post.

Here, we’ll look at the conditions that defendants on either/both types of supervision must live under. Importantly, though, when conditions of supervised release are violated, supervised release can be revoked and a new term of incarceration and supervision can be imposed.

Mandatory Conditions

There are several conditions of supervised release that are required by law. These do not apply to probation-only cases. Three of these are always applied, one applies to all offenders with no convictions since 2000, and two of them are specific to domestic violence and sex offense convictions. They are:

• That the defendant not commit another Federal, State, or local crime during the term of supervision,
• That the defendant make restitution in accordance with sections 3663 and 3663A, or any other statute authorizing a sentence of restitution, and
• That the defendant not unlawfully possess a controlled substance.
• That the defendant refrain from any unlawful use of a controlled substance and submit to a drug test within 15 days of release on supervised release and at least 2 periodic drug tests thereafter (as determined by the court) for use of a controlled substance. ((There can be an exception made for this rule if the defendant doesn’t have any history of alcohol or substance abuse))
  • Positive drug tests result in that pee specimen being sent to a drug testing lab for chromatography/mass spectrometry confirmation because field tests are known to show positive for using things like Sudafed ((But not normally things like poppy seed bagels));
• ONLY For defendants convicted of domestic violence:
  • That the defendant attend a public, private, or private nonprofit offender rehabilitation program that has been approved by the court, in consultation with a State Coalition Against Domestic Violence or other appropriate experts, if an approved program is readily available within a 50-mile radius of the legal residence of the defendant.
• ONLY For defendants convicted of sex crimes subject to registering as a sex offender:
  • That the person comply with the requirements of their State’s Sex Offender Registry laws.
• For all defendants convicted for the first time, or for their first conviction since the DNA Analysis Backlog Elimination Act of 2000: that the defendant cooperate in the collection of a DNA sample from the defendant

Other Conditions of Supervised Release

Each district will normally have a set of “standard” conditions of supervision that it will apply to every defendant in every case, and a host of other conditions called “special conditions” that are tailored to each defendant specifically.

This isn’t good policy, because the law puts restrictions on any and all conditions of supervision that are beyond the mandatory conditions listed above. Under the statute for supervised release, no other condition of supervised release may be imposed unless it meets these three standards:

1. It is reasonably related to:
   • The nature of the crime committed;
   • Promoting deterrence to future criminal conduct;
   • Protecting the public from future crimes of the defendant; and/or,
   • Providing other correctional treatment for medical, educational, occupational, or other needs in the most effective manner.

2. Involves no greater deprivation of liberty than is reasonably necessary for the purposes of:
   • Promoting deterrence to future criminal conduct;
   • Protecting the public from future crimes of the defendant; and/or,
   • Providing other correctional treatment for medical, educational, occupational, or other needs in the most effective manner.

3. Is consistent with policy statements of the Sentencing Commission. (Currently, this section of the Guidelines Manual is §5D1.3)

“Standard Conditions”

The Guidelines Manual recommends the following conditions of supervised release be applied in all cases:

1. The defendant will report to their assigned probation officer/department within 72 hours of release from prison;
2. After that initial report, the defendant shall report periodically to the probation department (usually once a month);
3. The defendant won’t leave the supervising district without permission;
4. The defendant will answer all of their probation officer’s questions truthfully; ((Application note 1. to this guideline states, “Although the condition in subsection (c)(4) requires the defendant to “answer truthfully” the questions asked by the probation officer, a defendant’s legitimate invocation of the Fifth Amendment privilege against self-incrimination in response to a probation officer’s question shall not be considered a violation of this condition.” Meaning “I plead the Fifth” is a truthful answer to a question posed by a probation officer, even if they don’t like that answer.))
5. The defendant will love at a place approved by their probation officer and will notify the probation department at least 10 days before moving;
6. The defendant will allow the probation officer to visit them at his home or somewhere else, and the probation officer can confiscate any ‘contraband’ observes in plain view;
7. The defendant will work full-time at a lawful place of employment in a lawful occupation and notify their probation officer (to the extent possible) 10 days before changing jobs. Otherwise, the defendant must notify the officer within 3 days of an unexpected change (e.g. getting fired);
8. The defendant will not communicate or interact with anybody engaged in criminal activity. Nor will the defendant knowingly communicate/interact with anybody with a felony conviction in their past without first getting permission to do so from their probation officer;
9. The defendant will notify their probation office within 72 hours of being arrested or questioned by law enforcement officer(s);
10. The defendant won’t own/possess or have access to any firearms, ammunition, explosives, or “dangerous weapons”;
11. The defendant won’t act as a criminal informant for any law enforcement agency without permission from the Court;
12. The supervising probation officer may notify, or order the probationer to notify, other people of the probationer’s conviction if that probation officer determines there is some risk posed by the probationer;
13. The defendant will follow the instructions of the probation officer related to the conditions of supervision if there is a question as to their application.

There are a LOT of clarifications that are needed on these “standard” conditions of supervised release, but those will be talked about in another lengthy blog post entirely.

“Special” Conditions

Depending on where the district court is which sentences a defendant, “special” conditions of supervised release can appear at the beginning, middle, or end of the listed conditions for which a defendant must obey on supervised release.

Special conditions can range from giving a probation officer full access to financial information, restrict a defendant’s ability to apply for new credit lines and loans, support dependents, and go through treatment for substance abuse or mental health issues.

In convictions for sexual offenses, special conditions can be very specific for things like computer usage, treatment programs including polygraph examinations, and contact with minors.

Many sentences come with restrictions on what occupation a supervisee may or may not engage in. A defendant convicted of embezzlement or honest services fraud can be restricted from owning their own company (big or small). A major restriction on financial cases is usually for fiduciary roles (accounting, wealth management, etc.).

Special conditions go further than this, too. Home detention, community confinement (halfway house placement), community services, curfews, and intermittent confinement can all be additional “special conditions of supervised release.