Friday, May 4th, 2018

Second Circuit Vacates Imposition of Lifetime Supervised Release

It’s been a busy week for the Second Circuit. On Wednesday, the Circuit reversed a sentence imposing a life term of supervised release for a defendant who had initially been convicted of drug offenses. See United States v. Brooks, No. 16-4063 (2d Cir. 2018) (per curiam) (Parker, Lynch, Chin) (appeal from Kaplan, J., SDNY). The opinion, available here, contains great language for use at sentencings and appeals.

The defendant in Brooks had initially pled guilty to distributing and possessing with intent to distribute cocaine and heroin, in violation statutes including 21 U.S.C. § 841(a)(1). After release from prison, he was charged with numerous supervised release violations, and pled guilty to violating three conditions related to drug use. At his revocation hearing, the defendant’s attorney noted the defendant’s “serious drug problem” as a “huge underlying and contributing factor” to his violations. Neither the government nor Probation recommended a specific term of supervised release. The District Court sentenced the defendant to 12 months’ imprisonment and, as authorized under U.S.C.§ 841(b)(1)(C), a life term of supervised release.

The Second Circuit reversed the supervised release term as unreasonable (hedging as to whether it was deciding on procedural or substantive unreasonableness grounds). For the district court to impose a life term of supervised release, there “had to be a significant justification to support the severity of that sentence or conduct that distinguished Brooks from similar recidivists.” Slip op. at 16.  Here, the record showed no such justifications or conduct.

Interestingly, the Circuit took issue with the district court’s finding that the term was justified in part because the defendant had already received ʺchance after chance after chance,ʺ but failed to ʺmuster the strength of characterʺ to take advantage of those opportunities. This justification was inappropriate, the Circuit explained, because “‘a court may not take account of retribution (the first purpose listed in § 3553(a)(2)) when imposing a term of supervised release.’ʺ Slip op. at 17, (quoting Tapia v. United States, 564 U.S. 319, 326 (2011)).

Nor, the Circuit explained, was the defendant’s conduct distinguishable from that of “many other recidivist defendants struggling with drug addition.” Id at 18. As the Circuit explained, “Brooksʹs violations of supervised release center on a drug habit that he has been unable, thus far, to kick. Unfortunately, cases are legion in which offenders with repeated drug violations or other recidivism problems a resentenced to far shorter terms of supervised release.” Id. (The panel observed, however, that life terms of supervised release are far more frequent in cases involving child pornography or violent crimes).

Beyond these rulings, the Circuit’s opinion in Brooks contains wonderful language that might be worth mining in appropriate cases. Here are some examples:

[S]upervised release is itself a serious sanction that imposes significant limitations on a defendantʹs liberty. . . . .

A lifetime of supervised release is an extreme and unusual remedy. It indefinitely subjects a defendant to the possibility of imprisonment for violating its terms. . . .

A lifetime of supervised release is also, to some degree, at odds with the rehabilitative purpose of supervised release, as it presumes that the need for supervision will never end and that the defendant is essentially incorrigible.  Accordingly, the severity of a life sentence of supervised release justifies a closer look at the district courtʹsdecision to impose such a sentence. We have previously recognized this principle.

Slip op. at 12-13 (citations omitted).


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