Last week Judge Weinstein issued a remarkable opinion, available here, terminating supervised release for a defendant who, apart from habitual marijuana use, has committed no crimes since his release from prison. See United States v. Trotter, No. 15-cr-382, DE 543 (E.D.N.Y. July 5, 2018). The lengthy-but-readable opinion is worth reading in its entirety, particularly for those not intimately familiar with the law governing supervised release.
The opinion in Trotter made headlines for Judge Weinstein’s commitments to avoid punishing supervisees for marijuana use, and to terminate supervised release for marijuana users who are otherwise rehabilitated. Equally relevant to practitioners, however, is Judge Weinstein’s more general critique of excessive supervision. Particularly important is Judge Weinstein’s suggestion that the defense bar move more frequently for termination of supervised release in the interest of justice pursuant to 18 U.S.C. § 3583. Indeed, Judge Weinstein urges practitioners to move for termination of supervised release in all cases after the defendant has completed one year of supervision.
The opinion’s introduction provides an excellent summary of its holding and analysis:
This case raises serious issues about sentencing generally, and supervised release for marijuana users specifically: Are we imposing longer terms than are needed for effective supervised release? Should we stop punishing supervisees for a marijuana addiction or habit?
After revisiting and reconsidering these issues, I conclude: (1) I, like other trial judges, have in many cases imposed longer periods of supervised release than needed, and I, like other trial judges, have failed to terminate supervised release early in many cases where continuing supervision presents such a burden as to reduce the probability of rehabilitation; and (2) I, like other trial judges, have provided unnecessary conditions of supervised release and unjustifiably punished supervisees for their marijuana addiction, even though marijuana is widely used in the community and is an almost unbreakable addiction or habit for some. As a result of these errors in our sentencing practice, money and the time of our probation officers are wasted, and supervisees are unnecessarily burdened.
In summary, in this and my future cases I will: (1) impose shorter terms of supervised release as needed; (2) give greater consideration to the appropriateness of conditions; (3) provide for earlier termination where indicated; and (4) avoid violations of supervised release and punishment by incarceration merely for habitual marijuana use.
Trotter, slip op. at 3.
Near the end of the opinion, Judge Weinstein offers this call to the defense bar for more frequent motions to terminate supervised release:
“The court may, after considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7) . . . terminate a term of supervised release and discharge the defendant released 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 interest of justice.” 18 U.S.C. § 3583. This provision is infrequently raised in applications by defense counsel or the Probation Department. Since the judge would not ordinarily examine the case on his or her own motion, unless a violation is charged, the provision is seldom used. Automatically raising the issue in all cases after one year should be considered. Such a plan would probably generally increase early terminations.
Trotter, slip op. at 40.
In related news, last week the Brookings Institution published a blog post summarizing the emerging scholarly consensus that intense supervision tends to worsen outcomes for the formerly incarcerated. This post by Jennifer L. Doleac, Associate Professor of Economics at Texas A&M, links to a number of articles that will be helpful in arguing for shorter and less cumbersome terms of supervised release. (Judge Weinstein’s opinion also contains a a wealth of reliable sources on this point, including a well received empirical law review article available here.)