Judge Weinstein issued an opinion this week terminating the supervised release of a defendant who violated a standard condition of release by consuming alcohol while in a drug treatment program. See United States v. Thomas, No. 15-cr-382, DE 575 (Nov. 6, 2018), available here. The opinion builds on Judge Weinstein’s more extensive opinion in United States v. Trotter concerning violations of supervised release for marijuana use. As Judge Weinstein urged in Trotter, practitioners should move to modify or terminate supervised release where the defendant’s only violations consist of minor infractions. (Indeed, Judge Weinstein suggests in Trotter that practitioners should move for termination of supervised release in all cases where the defendant has completed one year of supervision.)
As is customary with Judge Weinstein, the opinion’s introduction provides an excellent synopsis of its analysis:
The instant memorandum considers [an] important issue in supervised release: what to do with a supervisee who habitually uses alcohol in socially acceptable amounts and conditions violating the terms of his supervised release. The marijuana holding in Trotter is followed and extended to habitual use of alcohol socially: it avoids violations of supervised release and punishment by incarceration merely for alcohol use.
The court will not find violations of supervised release and punishment by incarceration merely for habitual, socially acceptable use of alcohol except in unusual cases. When a supervisee appears to be reintegrated into society but uses alcohol socially, the supervisee shows no interest in stopping alcohol use, and alcohol played no part in the underlying offense, the court will consider terminating supervision, releasing defendant as unimproved with respect to this habit.
Slip op. at 2-3.
Later in the opinion, Judge Weinstein lightly chastises the government for prosecuting violations of supervised release in cases like the defendant’s:
Continued supervision is unlikely to assist in the rehabilitation of Thomas. He began using alcohol more than a decade ago. He appears to be unable to stop using alcohol socially. This habit has led to, and will necessarily lead to, conflict between Thomas and his supervisor.
The government seeks to punish the defendant for something that is legal, and of which an overwhelming majority of Americans approve. This would be unfair, since he is employed and has been otherwise compliant with the terms of his supervised release. The court will not incarcerate him for violating the conditions of supervised release when those violations are for habitual, social or approved alcohol use.
The court should avoid a cycle of supervised release, use of alcohol, and prison. Thomas has been unable or unwilling to comply with the conditions relating to alcohol for nearly a year,so he would be likely to remain in future violations of supervision conditions.
Id. at 16.
Also relevant to practitioners facing this issue is Judge Cabranes’s opinion in United States v. Betts, 886 F.3d 198 (2d Cir. 2018), reversing a special condition of supervised release barring alcohol consumption. (Not to be confused with the also-helpful Ninth Circuit opinion, United States v. Betts, 511 F.3d 872 (9th Cir. 2007), holding the same).