Delegational delusions: why judges should be able to delegate reasonable authority over stated supervised release conditions.

Author:Schraa, Eugenia

Introduction I. Background A. Article III: Judicial Impartiality 1. Delegation: An "Essential Attribute" of the Administrative State 2. Punishment: Deference to Prison Authorities B. Supervised Release and the Sentencing Reform Act of 1984 1. Sentencing and Parole Before the Act: "Unfettered Discretion". 2. Congress' Intent: Rehabilitation's Tenuous Hold 3. In Practice: Costly and Ineffective C. The Supervised Release Statute 1. Imposing Conditions 2. The Right to Appeal 3. Termination, Modification, and Revocation 4. Probation Officers' Duties II. Conflict A. The Majority Approach: Article III Literalism 1. The Ultimate Responsibility Rule: United States v. Johnson 2. Policy Implications: United States v. Heath and United States v. Stephens a. Heath Facts: Leeway, But Only So Much b. Heath Holding: An Impermissibly Ambivalent Sentence c. Narrow Tailoring and United States v. Stephens i. Stephens Facts: A Struggle With Drug Use ii. Stephens Holding: A Struggle to Find the Limiting Principle 3. Protecting Defendants' Rights: United States v. Pruden a. Facts: An Extraneous Condition b. Holding: Two Legal Reasons to Strike the Condition B. The Minority Pragmatic Approach 1. Recasting United States v. Johnson's "Ultimate Responsibility". 2. Policy Rationale: Delegation Limiting Supervised Release Conditions III. Resolution A. Constitutional Reasons to Delegate 1. Literally Constitutional 2. In the Pipeline a. Plurality b. Dissent 3. The Judicial Probation Officer and the Executive Prison Authority B. Policy Reasons to Delegate 1. The Original Goals of Supervised Release a. A Sentence With No Surprises b. Removing the Strategy from Sentencing c. Rehabilitation 2. Critiques of Supervised Release Conclusion INTRODUCTION

Presiding over a sentencing hearing in 2005, a federal judge faced a dilemma. (1) He had sentenced Lawrence Bowman to three years in prison for possession of child pornography. (2) He had also sentenced Bowman to three years of supervised release, (3) which would require Bowman to report to a probation officer and abide by certain conditions upon his release from prison. (4)

But the particulars of the case presented the judge with a difficult choice: because Bowman had a ten year-old son and a young grandson, the judge was worried about whether they could safely spend time with Bowman when he returned from prison. (5) On the other hand, the judge recognized that a psychologist had concluded that Bowman did not have sexual proclivities that would endanger young children. (6) Therefore, he did not want to impose a condition that would cruelly punish not only Bowman, but also his family by keeping them separated unless it was truly necessary. (7) The judge stated that, even though Bowman did not appear to pose a risk at the time of sentencing, he did not want to allow Bowman to see his son and grandson unsupervised "without having input from the counselors ... and from the probation officer who knows the matter best." (8)

At the suggestion of Bowman's probation officer who spoke at the hearing, the judge resolved this dilemma by making the supervision requirement a condition of Bowman's supervised release, but adding that his probation officer could relieve him of the condition if, after consulting with his sex offender treatment provider, she determined that he was not a threat. (9)

Most appellate courts, however, would not permit this solution. (10)

The majority of circuit courts hold that allowing a probation officer to decide whether or not to impose a particular condition of supervised release-- depending on that officer's assessment of the defendant's needs--violates the Constitution. (11) These courts hold that imposing a sentence is an exclusively judicial task, and that conditions of supervised release are part of a sentence. (12) Because Article III of the Constitution requires that federal judges enjoy life tenure and guaranteed salaries, (13) these courts hold that probation officers, who do not enjoy those protections, (14) cannot exercise authority to determine whether or not to impose a stated supervised release condition, (15) such as needing supervision to spend time with a son and grandson.

However, Bowman's sentencing judge happened to sit in one of only two circuits that have upheld the kind of delegation he employed. (16) Had the sentencing judge sat in one of the majority circuits, he would in all likelihood have imposed the supervision condition on Bowman without allowing Bowman's probation officer to relieve him of the burden of needing an officer to be present when spending time with his son and grandson. Presumably, most judges would err on the side of safety in such situations, even to the detriment of the defendant. In a majority circuit, therefore, Bowman would either have had to abide by the condition, or go through the expense of petitioning for another hearing in hopes of having the condition removed. (17)

This Note examines the split in federal circuit courts over whether sentencing judges may delegate to probation officers the decision to implement specified conditions of a defendant's term of supervised release. Part I.A examines the original intent behind Article III, the long history of delegation of judicial functions to non-Article III officers, and the deference that the judiciary must give to the executive branch in the realm of punishment. Part I.B traces the history of supervised release, the scheme that replaced parole in the Sentencing Reform Act of 1984's overhaul of federal sentencing rules. Part I.C discusses the major components of the supervised release statute.

Part II examines the split in federal authority. Part II.A focuses on the majority of circuits that hold delegation impermissible on constitutional grounds, and explores a seeming tension between the Article III values that the majority approach purports to protect and the actual facts in those cases. Part II.B examines the reasoning of the minority of circuits that, adopting a more pragmatic approach, condone judicial delegation of supervised release conditions that the sentencing judge has specified. Part III advocates for the adoption of the pragmatic approach on constitutional and policy grounds.


    Part I.A provides an overview of judicial delegation to non-life-tenured officers under Article III. The majority approach relies on Supreme Court jurisprudence regarding the constitutionality of non-Article III tribunals. (18) Part I.A.1 explores this jurisprudence, and Part I.A.2 explores the relationship between the judiciary's right to impose criminal punishment--also an important basis for the majority approach--and its obligation to defer to the executive branch on some punitive matters. Finally, Parts I.B and I.C briefly trace the history and development of the federal supervised release system.

    1. Article III: Judicial Impartiality

      The Supreme Court has guarded Article III's mandate that federal judges enjoy life tenure and receive undiminished compensation (19) so jealously that, in 1982, it struck down the entire Bankruptcy Court system as unconstitutional. (20) The Court believed that the amount of judicial power bankruptcy judges, who serve finite terms, (21) were able to wield infringed on Article III. (22)

      The historical record indicates that the framers considered Article III's requirement that federal judges enjoy life tenure and undiminished compensation a "guarantee of judicial impartiality." (23) For example, the Declaration of Independence denounced King George III for having "made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries." (24) A decade later, the Constitutional Convention defeated a proposal to give the executive and legislative branches power to remove judges. (25) Advocating for ratification in the Federalist Papers, Alexander Hamilton wrote: "Next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support." (26)

      1. Delegation: An "Essential Attribute" of the Administrative State

        Nonetheless, Congress delegated judicial authority to non-Article III judges in its very first session. (27) It vested in executive officers the power to resolve issues such as claims to veterans' benefits, (28) and authorized commissioned officers to preside over courts martial in military tribunals. (29) The Supreme Court approved these schemes from the start. In 1828, Chief Justice Marshall upheld Congress' use of non-Article III federal tribunals to adjudicate disputes in the federal territories, (30) setting an enduring precedent of "legislative courts"--non-Article III adjudicative bodies created by Congress. (31)

        Today, non-Article III judges shoulder a larger proportion of the federal docket than do life-tenured judges. (32) Primarily, this proliferation stems from the demands of the modem administrative state. (33)

        In 1932, the Supreme Court first approved the adjudication of private rights by an administrative agency in Crowell v. Benson. (34) Crowell held that Article I tribunals are constitutional so long as the "essential attributes" of the decision remain in an Article III court. (35) That is, so long as the Article I court functions more as an adjunct of the federal court than as an independent tribunal. (36) Crowell noted that, even traditionally, officers other than judges can determine some of the facts in a case, so long as judges make the final decisions. For example, masters (37)--even without the parties' consent--have long made advisory findings of fact by which the parties must abide if the judge accepts them. (38) Crowell found that the district court's ability to review the agency's findings of law and fact de novo, that is, anew, satisfied the essential attributes standard, (39) although the dissent would have insisted upon allowing de novo trials. (40)

        In the late 1960s, Congress began delegating federal...

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