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Handbook Cover for Treatise on Internet Sex Crimes

Chapter 8:

Supervised Release


LENGTH OF RELEASE

Prior to the PROTECT Act of 2003, supervised release was governed by 18 U.S.C. § 3583(b), which is the provision applicable to all federal offenses that do not carry mandatory supervised release terms. All child pornography offenders (either Class C or D felonies) without predicate convictions for sex offenses were sentenced to a maximum of three years of supervised release.

However, after the enactment of the PROTECT Act, every child pornography offender sentenced to any amount of imprisonment for conviction of any production or non-production child pornography offense (U.S.C. Chapter 110, title 18) must serve a mandatory minimum term of five years of supervised release, and can be sentenced up to a maximum term of lifetime supervision.

Generally, judges are instructed to impose at least the statutory minimum term, but a policy statement recommended “the statutory maximum term of supervised release” for all offenders convicted of a “sex offense.” Child pornography offenses are considered sex offenses. Therefore, “the current guideline effectively recommends a lifetime term of supervised release for all child pornography offenders.” However, this policy statement was added when the statutory maximum term of supervised release was three years, not life.

A Ninth Circuit concurrence argues: “The routine imposition of lifetime terms of supervised release on Internet-only child pornography offenders [as opposed to those who had committed contact offenses against children] departs from Congress’s purpose in enacting § 3583(k) and ignores the best available empirical evidence. This practice results in onerous sentences imposed without individualized attention to the ‘history and characteristics of the defendant,’ 18 U.S.C. § 3553(a)(1), or the ‘need for the sentence imposed to protect the public from further crimes of the defendant.’ Id. § 3553(a)(2)(C).” The Fifth Circuit believes the lifetime supervision recommendation goes beyond Congress’s decision to require a minimum mandatory five-year term of supervision. The Third Circuit cautions that “even when a given term of supervised release term is strongly recommended by the Guidelines, district courts should refrain from imposing that recommended term blindly and without careful consideration of the specific facts and circumstances of the case before it.”


[1] United States Sentencing Commission. (2012). Chapter 10: Post-Conviction Issues in Child Pornography Cases. In Federal Child Pornography Offenses. https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/sex-offense-topics/201212-federal-child-pornography-offenses/Chapter_10.pdf

[2] 18 U.S.C. § 3583(k)

[3] USSG § § 5D1.1(a)(1) & 5D1.2(b)

[4] USSG § 5D1.2, comment (n.1)

[5] United States Sentencing Commission. (2012). Chapter 10: Post-Conviction Issues in Child Pornography Cases. In Federal Child Pornography Offenses. https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/sex-offense-topics/201212-federal-child-pornography-offenses/Chapter_10.pdf

[6]  United States v. Apodaca, 641 F.3d 1077, 1085–87 (9th Cir. 2011)

[7] United States v. Apodaca, 641 F.3d 1077, 1085 (9th Cir. 2011)

[8] United States v. Alvarado, 691 F.3d 592, 598 (5th Cir. 2012)

[9] United States v. Kuchler, 285 F. App’x 866, 870 (3d Cir. 2008)

CONDITIONS OF SUPERVISED RELEASE

It is mandatory for a defendant to comply with state and federal sex offender registration requirements.[10]

USSG § 5D1.3(d)(7) is a policy statement providing the recommended conditions of supervised release in sex offense cases. Under this section, the defendant must participate in a program approved by the Probation Office for the treatment and monitoring of sex offenders, limit the use of a computer or computer service in cases in which the defendant used such items, and submit to a search, at any time, with or without a warrant, and by any law enforcement or probation officer, of their person and property upon “reasonable suspicion” concerning a violation of a condition of release or unlawful conduct. 

All circuits to have considered the matter have refuted defendants’ challenges against participation in treatment programs.[11] Challenges have also risen based on the Fifth Amendment right against self-incrimination. Because defendants may be required to admit to past sexual conduct without a grant of immunity while in treatment, the Ninth Circuit has held that a district court may not revoke a sex offender’s supervised release for refusing to make incriminating statements during mandated therapy, and the First Circuit clarified that participants faced no additional penalties for refusal to answer sexual history questions.[12]

Defendants have also raised Fifth Amendment challenges to polygraph test requirements. The Second, Third, Fourth, and Eleventh Circuits regularly impose polygraph testing as a condition of release and found no violation in the requirement “so long as an offender is permitted to challenge the use of incriminating statements if a separate prosecution is brought based on any compelled answers.”[13] However, the First Circuit declined to issue a “blanket decision on the propriety of polygraph testing as a tool of supervised release.”[14]

Courts have sometimes banned all Internet access. The Eighth Circuit held that the First Amendment disfavored such a ban[15], but the Eighth Circuit and other circuits have implemented them nonetheless in certain child pornography cases.[16] The circuits generally emphasize the importance of narrowly tailoring Internet bans to serve sentencing objectives without overly restricting a defendant’s liberty.[17] This often involves considering the nexus between the Internet and the underlying offense.[18]

Furthermore, in cases in which a defendant has only possessed child pornography, some courts have considered a total Internet ban unreasonable because “such a ban renders modern life – in which, for example, the government strongly encourages taxpayers to file their returns electronically, where more and more commerce is conducted on-line, and where vast amounts of government information are communicated via website – exceptionally difficult.”[19]

Courts may also impose additional conditions of supervised release. However, federal courts may not compel state action, such as by suspending a defendant’s drivers license or pay an outstanding child support obligation.[20] The following are examples of common additional conditions of supervised release in child pornography cases. 

Courts often ban all possession of any kind of pornography. With regard to the First Amendment, the Ninth Circuit recognized that a “defendant’s right to free speech may be abridged to effectively address [their] sexual deviance problem.”[21] However, the Third Circuit recognizes the need to balance pornography bans with FIrst Amendment concerns.[22] Thus, the circuits look for “a significant nexus between restricting the defendant from access to adult materials and the goals of supervised release.”[23] For example, the First, Fourth, and Eighth Circuits have struck down pornography bans where no such nexus existed and there was no other justification for the condition.[24] The Third and Ninth Circuits have held that a ban on “any pornography” is too vague due to different interpretations, but have upheld conditions that prohibit possession of depictions of “sexually explicit conduct” due to its definition in 18 U.S.C. § 2256(2)(A).[25]

Courts may also prohibit association with minors or from frequenting places such as parks or schools where children are present without permission from a probation officer. This condition can significantly impact rights to free association, travel, work, and contact with their own children. Regardless, circuits generally uphold these conditions.[26] However, the Second Circuit struck down a condition requiring a defendant to obtain permission before visiting his son because they could not determine whether the condition was reasonable, related to the sentencing goals, and represented no greater deprivation of liberty than was necessary.[27] The Second, Third, Eighth, and Ninth Circuits have not upheld conditions that lack clarity or total restriction of access to family members in Internet-only offenses.[28]

Courts may also require penile plethysmograph testing (see section on Psychological Assessments for more information on the test itself). The Fourth and Tenth Circuits have upheld these conditions for their relation to the treatment of sex offenders and the goals of sentencing.[29] However, the Ninth Circuit requires courts to justify the condition as necessary to a particular defendant based on specific findings and evidence.[30]

Courts frequently require psychosexual treatment as a condition of supervision. The appropriate treatment is usually determined on a case-by-case basis through a thorough psychosexual evaluation. (See Psychological Expert Section for more information on psychological evaluations and risk assessments). Sex offenders, including child pornography offenders, are most commonly treated with cognitive behavioral therapy (CBT).[31]

While the above covers common examples of federal conditions of supervised release, also bear in mind that many federal districts have their own unique special conditions that are not found explicitly in the guidelines or statutes. It is important to review the potential conditions of supervised release for the specific jurisdiction a case falls under.


[10] 18 U.S.C. § 3583(d); USSG § 5D1.3(a)(7)

[11] United States v. Metzener, 584 F.3d 928, 935 (10th Cir. 2009); United States v. Kreitinger, 576 F.3d 500, 505 (8th Cir. 2009); United States v. Taylor, 338 F.3d 1280, 1283-84 (11th Cir. 2003)

[12] United States v. Antelope, 395 F.3d 1128 (9th Cir. 2005); Ainsworth v. Stanley, 317 F.3d 1 (1st Cir. 2002)

[13] The United States Sentencing Commission. (2010). Federal Offenders Sentenced to Supervised Release. https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2010/20100722_Supervised_Release.pdf; United States v. Johnson, 446 F.3d 272 (2d Cir. 2006); United States v. Dotson, 324 F.3d 256 (4th Cir. 2003); United States v. Zinn, 321 F.3d 1084, 1089-90 (11th Cir. 2003); United States v. Lee, 315 F.3d 206 (3d Cir. 2003)

[14] United States v. York, 357 F.3d 14, 23 (1st Cir. 2004)

[15] United States v. Bender, 566 F.3d 748 (8th Cir. 2009)

[16] United States v. Love, 593 F.3d 1, 12 (D.C. Cir. 2010); United States v. Alvarez, 478 F.3d 864, 868 (8th Cir. 2007); United States v. Mark, 425 F.3d 505 (8th Cir. 2005)

[17] United States v. Russell, 600 F.3d 631 (D.C. Cir. 2010); United States v. Perazza-Mercado, 553 F.3d 65 (1st Cir. 2009); United States v. Bender, 566 F.3d 751 (8th Cir. 2009); United States v. Boston, 494 F.3d 660, 668 (8th Cir. 2007); United States v. Voelker, 489 F.3d 139 (3d. Cir. 2007); United States v. Freeman, 316 F.3d 386, 392 (3d Cir. 2003); United States v. Holm, 326 F.3d 872, 877-78 (7th Cir. 2003); United States v. Zinn, 321 F.3d 1084 (11th Cir. 2003)

[18] United States v. Miller, 594 F.3d 172 (3d Cir. 2010); United States v. Crume, 422 F.3d 728 (8th Cir. 2005)

[19] United States v. Holm, 326 F.3d 872, 878 (7th Cir. 2003)

[20] United States v. Snyder, 852 F.2d 471; United States v. Lakatos, 241 F.3d 690 (9th Cir. 2001)

[21] United States v. Reardon, 349 F.3d 608 (9th Cir. 2003)

[22] United States v. Thieleman, 575 F.3d 272 (3d Cir. 2009)

[23] The United States Sentencing Commission. (2010). Federal Offenders Sentenced to Supervised Release. https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2010/20100722_Supervised_Release.pdf; United States v. Thieleman, 575 F.3d 272 (3d Cir. 2009); United States v. Reardon, 349 F.3d 608 (9th Cir. 2003)

[24] United States v. Perazza-Mercado, 553 F.3d 65, 78 (1st Cir. 2009); United States v. Armel, 585 F.3d 182, 186 (4th Cir. 2009); United States v. Bender, 566 F.3d 748 (8th Cir. 2009)

[25] United States v. Thieleman, 575 F.3d 277 (3d Cir. 2009); United States v. Rearden, 349 F.3d 608 (9th Cir. 2003)

[26] United States v. Daniels, 541 F.3d 915, 928-29 (9th Cir. 2008); United States v. Johnson, 446 F.3d 272 (2d Cir. 2006); United States v. Mickelson, 433 F.3d 1050 (8th Cir. 2006); United States v. Crume, 422 F.3d 728 (8th Cir. 2005); United States v. Roy, 438 F.3d 140 (1st Cir. 2006)

[27] United States v. Myers, 426 F.3d 117 (2d Cir. 2005)

[28] United States v. Reeves, 591 F.3d 77 (2d Cir. 2010); United States v. Blinkinsop, 606 F.3d 1110 (9th Cir. 2010); United States v. Voelker, 489 F.3d 139 (3d Cir. 2007); United States v. Davis, 452 F.3d 991 (8th Cir. 2006)

[29] United States v. Dotson, 324 F.3d 256, 260-61 (4th Cir. 2003); United States v. Morgan, 44 F. App’x 881 (10th Cir. 2002)

[30] United States v. Weber, 451 F.3d 552 (9th Cir. 2006)

[31] United States Sentencing Commission. (2012). Chapter 10: Post-Conviction Issues in Child Pornography Cases. In Federal Child Pornography Offenses. https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/sex-offense-topics/201212-federal-child-pornography-offenses/Chapter_10.pdf (p. 280)

REVOCATION

18 U.S.C. § 3583 provides that for  any defendants required to register as a sex offender, which necessarily includes all of those convicted of title 19 chapter 10 U.S.C. child pornography offenses, who violate the conditions of supervised release by committing an enumerated sex offense, revocation of supervised release is mandatory.[32] Child pornography offenses are included in such enumerated sex offenses.[33] The court is also required to impose a mandatory minimum term of five years of imprisonment.[34]

Importantly, the offender does not need to be convicted of a new sex offense in order for mandatory revocation of supervised release and imprisonment to occur. Instead, a court only needs to find that the offender committed a new sex offense while on supervised release by a preponderance of the evidence.[35]


[32] 18 U.S.C. § 3583(k)

[33] 18 U.S.C. § 3583(d); § 3583(k)

[34] 18 U.S.C. § 3583(k)

[35] United States v. Cunningham, 607 F.3d 1264, 1267–68 (11th Cir. 2010); 18 U.S.C. § 3583(e)(3)

SUPERVISED RELEASE DATA

The United States Sentencing Council found that “[e]ven before the PROTECT Act, courts imposed terms of supervised release in virtually all child pornography cases in which a term of imprisonment was imposed” in both production and non-production cases. Furthermore, the average terms of supervised release for child pornography cases rose dramatically in the years following the PROTECT Act’s enactment. For example, in 2010, average terms of supervised release were 323 months for production offenses, 273.7 months for receipt/transportation/distribution offenders, and 220.3 for possession offenders.


[36] United States Sentencing Commission. (2012). Chapter 10: Post-Conviction Issues in Child Pornography Cases. In Federal Child Pornography Offenses. https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/sex-offense-topics/201212-federal-child-pornography-offenses/Chapter_10.pdf (p. 274)

[37] Ibid (p. 291)

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