In United States v. Patrick W. Carlineo, 2d Cir. No. 20-1020 (May 25, 2021), a Panel of the Court (Parker, Lohier, and Menashi) invalidated a special condition of supervised release requiring the defendant to “participate in a program known as the Partners in Restorative Initiatives” as too vague and as delegating too much authority to the Probation Office. Judge Parker’s opinion does not invalidate all such conditions. Rather, the takeaway is that if a district judge wishes to impose a restorative-justice-related condition of supervision, the judge must specify the details of the program — preferably one vetted by the Probation Office — and indicate specifically what the defendant must do to satisfy the condition and avoid violation.
Carlineo pleaded guilty to threatening Congresswoman Ihlan Omar and to possessing a gun after a felony conviction. Before sentencing, the district court received an unsolicited letter “from Will Bontrager, who identified himself as the founder of the Partners in Restorative Initiatives” Program, which “provides community-based sentencing options” and “suggested ‘possible restorative justice options’ for the district court to consider, including: (1) a sentencing circle, (2) a listening circle, (3) a combination of the listening circle and community service, and (4) community service.” Op. 4-5. “The letter goes on to describe each of these activities as ‘options,’ but d[id] not state which options or combination of options would constitute satisfactory participation. Moreover, the letter contemplates that the district court would choose among the program options listed and incorporate them into its sentence. App. 143 (‘I am writing to suggest possible restorative justice options you may choose to consider in sentencing him.’ (emphasis added)).”
The Circuit emphasized that “it does not appear that either the district court or the Probation Office had any particular familiarity with Partners. In contrast to substance abuse or mental health programs, which are reviewed and evaluated by Probation offices prior to referrals, there is no indication in the record that Partners was subjected to any such review or that either the district court or the Probation Office had prior experience with the Program.” Op. 6; see id. 10 (“The Program has not been approved. It has not been evaluated by the Probation Office, and there are no apparent licensing, certification, or objective standards that govern and define the Program.”).
After sentencing Carlineo to a year and a day in prison, the court imposed a three-year term of supervised release. The court added a special condition requiring him to participate in drug-abuse and mental-health treatment programs. The court also imposed a special condition, over objection, “requiring Carlineo to “participate in the Partners in Restorative Initiatives program . . . and that’s going to involve [] participating in a program which could include a sentencing circle . . . [a] listening circle as well . . . [and] the defendant would need to listen to stories about Muslim refugees or people who suffered from violence [for] being Muslim.” Op. 5-6.
On appeal, Carlineo challenged the special condition as vague and as impermissibly delegating judicial authority to the Probation Office. The Court agreed and struck the condition.
First, the condition “is vague because it would leave a reasonable person guessing as to what the requirements of the Program might be. During sentencing, the district court orally instructed Carlineo to participate in the program and noted that participation could include a sentencing circle and a listening circle and that he would need to listen to stories about Muslim refugees or people who suffered from violence for being Muslim. However, exactly what this might entail is not clear.” Op. 8.
No guidance was given as to what specific activities the sentencing circle and or the listening circle would involve. And none was given as to the required frequency of the circle sessions or as to what ‘successful participation’ might look like.” Op. 8-9. And while the court “relied on the letter from Bontrager” in imposing the condition, the letter “did not resolve these uncertainties.” As noted, rather, the letter specifically “contemplates that the district court would choose among the program options listed and incorporate them into its sentence.” Op. 9. In sum, the court failed to “clarif[y] which of the specific options Carlineo was required to engage in to fulfill the special condition.” Id.
The “condition also fails for vagueness because it does not put Carlineo on notice as to what conduct could trigger a charge of violating the condition.” Op. 9. “Because the condition does not inform Carlineo what he must do, or for how long, to ensure he will not be re-incarcerated, it fails to provide him with sufficient guidance as to what he must do to avoid a violation proceeding and possible re-incarceration.” Op. 10.
The Court acknowledged that “conditions of supervised release ‘need not . . . describe every possible permutation, or spell out every last, self-evident detail.’ But the challenged condition here failed to inform Carlineo of even the broad contours of the prohibited (and required) conduct.” Id. And “while the Guidelines authorize the imposition of special conditions such as substance abuse and mental health treatment, [] these programs must be ‘approved by the United States Probation Office.’ U.S.S.G. § 5D1.3(d)(4); U.S.S.G. § 5D1.3(d)(5). In contrast, the Program [here] has not been approved. It has not been evaluated by the Probation Office, and there are no apparent licensing, certification, or objective standards that govern and define the Program. The lack of prior approval and the cursory description of the Program in the [] letter together render the challenged special condition unduly vague.” Op. 10-11.
Second and relatedly, the special condition “results in the delegation of too much authority to the Probation Office.” Op. 11. Because the restorative-justice program here is “ill-defined,” “the ultimate discretion and authority to figure out what the special condition requires is left with the Probation Office.” Op. 12. “[T]he Probation Office would need to fill in too many blanks. It would be required to come up with some sort of configuration of the sentencing circle, the listening circle, and community service. Because one configuration could well be more onerous or restrictive than another and, as a consequence, impose greater or lesser restrictions on Carlineo’s liberty, the Probation Office, and not the district court, would be deciding the extent of Carlineo’s punishment. We have been clear that such a result is not appropriate.” Id.
The Circuit recognized that “the District Court was sensitive in its efforts to fashion a sentence that appropriately responded to the offense Carlineo committed and that it was imaginative in reaching out for the unusual special condition that is the subject of this appeal.” Op. 3. Nonetheless, because “the special condition is too vague and delegates too much authority to the Probation Office . . . , we vacate the special condition.” Id.
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