United States v. Duane Arthur Myers, Docket No. 04-3498-cr (2d Cir. September 27, 2005) (Sotomayor, Raggi, Hall): This is yet another decision in a long line of cases evaluating the propriety of an intrusive condition of supervised release imposed by a district court on a kiddie porn offender. Readers should consult the opinion themselves to determine whether our evaluation is correct: What a terribly convoluted non-solution to a relatively simple problem!
Here, the district court imposed a 78-month sentence and a number of special conditions of supervised release prohibiting the defendant — convicted of receiving sexually explicit photos from an underaged girl in Colorado — from unsupervised contact with underaged children. Myers did not challenge these conditions. The court also imposed a special condition prohibiting Myers from having any contact with his 5-year-old son without the prior approval of the Probation Officer. The court clearly did so because of (1) the nature of the offense of conviction and (2) the defendant’s prior misdemeanor conviction for fondling the 8-year-old niece of a former girlfriend. However, there was no evidence whatsoever that the defendant was interested in underaged males, or that he posed a threat of any kind to his own five-year-old son. Myers challenged solely this condition, arguing that nothing justified a restriction on his right to see his own child.
The law governing special conditions of supervised release is clear. Such conditions will be upheld only if they are (1) reasonably related to the nature of the offense or the offender, and to the goals of sentencing, and (2) impose no greater deprivation of liberty than is reasonably necessary to achieve those ends. 18 U.S.C. § 3583(d). As we see it, neither prong is satisfied here. Nothing supports the belief that Myers posed a threat to his own son, and preventing him from seeing the child obviously infringes upon his liberty interest in having a relationship with his son.
Unfortunately, the Court did not see things so clearly. Rather, it concludes that remand for further fact-finding is required — on both prongs of the § 3583(d) analysis, no less. First, the Court concludes somehow that the record is unclear as to “the goals of the challenged condition.” As the Court sees it, while “[t]here is reason to believe the court designed the condition to protect Myers’s child,” there is “also reason to believe the condition was intended to protect other children with whom Myers might come into contact during visits.” Op. at 14. While the latter “is clearly related to a legitimate sentencing goal,” id., the former is not on the existing record. As the Court admits, “The government offered no evidence to show that Myers’s child, a male, was in any danger from his father. The evidence in the record does not show . . . how the condition will deter misconduct toward that child if that is indeed its goal.” Op. at 15. However, since it isn’t clear from the record which purpose the condition sought to fulfill, remand for additional clarification was required.
Second, the Court concludes that it could not determine on the basis of the existing record whether Myers in fact has a liberty interest in seeing his own son, since the child is in foster care and thus a ward of the state at the present time (due both to Myers’s conviction and the mother’s neglect). While Myers asserts that he has a Due Process right to see his son, the Court wasn’t so sure of this in light of the facts and the relevant state law. After broadly surveying the law on the extent of parental visitation rights over children born out of wedlock and in foster care, the Court concluded that the uncertainty in the record concerning Myers’s current rights vis-a-vis his son — pending resolution by the New York family court — also requires a remand for further fact-finding. Op. at 18-19.
While we disagree with both of the Court’s conclusions, we wholeheartedly agree with the sentiment buried in the final footnote of the opinion:
“On remand, the parties may wish to address how a special condition relating to Myers’s contact with his own child may affect or otherwise interrelate with any state proceedings or orders relating to Myers’s custodial or visitation rights. Because ‘domestic relations law is almost exclusively the province of the states,’ Brissett v. Ashcroft, 363 F.3d 130, 133 (2d Cir. 2004), a federal court properly proceeds cautiously in concluding that the responsible supervision of a criminal defendant requires conditions with respect to a parent’s access to a child that are different from or in addition to those ordered by a state court.”
Op. at 20. District judges should take this advice to heart. Meddling in affairs and relationships governed by state law, in an area in which federal courts possess neither experience nor expertise, almost always leads to clumsy and heavy-handed solutions.