Dubious delegation: Article III limits on mental health treatment decisions.

• Author: Teitelbaum, Adam

A common condition of supervised release requires a defendant, post-incarceration, to participate in a mental health treatment program. Federal district courts often order probation officers to make certain decisions ancillary to these programs. However, Article III delegation doctrine places limits on such actions. This Note addresses the constitutionality of delegating the "treatment program" decision, in which a probation officer decides which type of treatment the defendant must undergo; the choice is often between inpatient treatment and other less restrictive alternatives. The resolution of this issue ultimately depends on whether this decision constitutes a "judicial act." Finding support in lower court case law, this Note argues that a "judicial act" encompasses decisions affecting the defendant's significant liberty interests. The Supreme Court case law and the mental health literature make clear that significant liberty interests are at stake in these "treatment program" decisions. Thus, delegating the "treatment program" decision to probation officers is unconstitutional under Article III The Note concludes by suggesting a constitutionally permissible scheme whereby the judge orders a maximally intrusive treatment while giving the probation officer the discretion to choose a less restrictive program.

TABLE OF CONTENTS INTRODUCTION I. BACKGROUND ON CONDITIONS OF SUPERVISED RELEASE AND PROBATION OFFICERS A. Conditions of Supervised Release B. Probation Officers II. SUPREME COURT DELEGATION FRAMEWORK A. Development of the Doctrine B. Application of the Adjunct Theory 1. Article III Oversight 2. Presence of a Judicial Act III. A LIBERTY-CENTERED FRAMEWORK A. Confusion in the Circuits B. A Proposed Framework: Finding a Judicial Act Where There Has Been a Significant Deprivation of Liberty 1. Case Law on Delegation to Probation Officers 2. Case Law on Delegation to Federal Parole Boards 3. Other Potential Tests IV. LIBERTY AND INPATIENT MENTAL HEALTH TREATMENT. A. Application of the Test B. Possible Solutions CONCLUSION INTRODUCTION

In the federal criminal justice system, individual liberty is placed in the hands of an array of decisionmakers. There is the police officer who decides whether to investigate a suspicious character; the magistrate judge who approves a warrant to search someone's home; the jury which decides whether or not to convict; the district judge who orders a sentence; and the probation officer who oversees the conditions of supervised release. Sometimes, these roles bleed together. For example, a police officer may conduct a warrantless search in certain situations, (1) and a judge may override a jury conviction not supported by the evidence. (2) This Note addresses the overlapping roles of a probation officer and a judge in determining the type of mental health treatment a defendant must undergo pursuant to a condition of supervised release.

Imagine that you have been convicted of a federal drug crime and you have a history of addiction and mental health issues. You are now in court to be sentenced. Once you hear that you will be spending the next five years in prison, you do not even give a second thought to everything else the judge is saying. You do your time, you are released from prison, and you meet your probation officer. At that point, the officer, not the judge, decides you need to spend more time confined--this time, in a restrictive inpatient mental health facility. In fact, the judge, five years ago at sentencing, ordered the probation officer to make such a decision.

This situation has become surprisingly common: judges, in their orders regarding conditions of supervised release, regularly delegate to probation officers certain mental health treatment decisions. While potentially troubling from a policy perspective, this issue also has a constitutional dimension. Article III limits the exercise of the judicial power to federal courts, (3) and thus may impose constitutional restraints on this practice. This Note examines the constitutionality of delegating the "treatment program" (4) decision: when judges order mental health treatment upon a defendant's release but allow the probation officer to determine--at a later time--the type of treatment program the defendant must undergo.

The pressure on district judges to delegate more duties to probation officers is not surprising. Undoubtedly, it is necessary that probation officers assume certain tasks in order to "support judicial functions," (5) as probation officers "play a vital role in effectuating the sentences imposed by district courts"' (6) District court judges face an "ever-increasing workload. (7) For example, in California from 1983 to 1992, judges' caseloads grew by 73 percent. (8) This puts pressure on all facets of the judicial system, and it suggests that judges will be driven to delegate more duties to probation officers. As a practical matter, "courts cannot be expected to map out every detail of a defendant's supervised release"' (9)

It is also intuitive to leave certain decisions to a probation officer, who is "a liaison between the sentencing court, which has supervisory power over the defendant's term of supervised release, and the defendant, who must comply with the conditions of his supervised release or run the risk of revocation." (10) With regard to mental health decisions, probation officers are closer to the situation and can monitor the defendant's progress over time, making adjustments when necessary. (11) If these decisions were left to judges, judges would be forced to choose between making a single determination at the time of sentencing or delaying a hearing for a later date. (12)

Despite the administrability and efficiency justifications for delegating decisions to probation officers, there are benefits to having an Article III judge make this decision. The Constitution imparts to Article III judges certain important protections; it ensures that (1)they have life tenure, unless impeached, and that (2) their compensation can never be diminished. (13) Both of these protections were meant to ensure the independence of the judiciary from other branches of government, and this independence must be "jealously guarded?" (14) Probation officers, by contrast, are not insulated by these constitutional protections--it

would be expensive and impractical to give these employees life tenure and salary protections. Further, a defendant may feel that he is being treated more fairly when a judge makes this type of decision after hearing and weighing the arguments through the typical judicial process--as opposed to the probation officer making the decision on his own whims, potentially biased by his closer relationship to the defendant. (15)

While these practical concerns provide perspective, this issue must ultimately be resolved according to Article HI delegation doctrine. This Note argues that it is unconstitutional for a judge to delegate to a probation officer the decision regarding the type of mental health treatment a defendant must undergo following his or her release from jail. Part I discusses the duties and training of probation officers, as well as the mechanics of conditions of supervised release. (16) Part II argues that this delegation is impermissible under the Supreme Court's delegation precedent if and only if a "judicial function" has been delegated--an issue on which the Court has provided no guidance. Part III argues that a "judicial function" has been delegated when the probation officer is allowed to make a decision depriving the defendant of a significant liberty interest. This framework finds support in the plentiful lower court case law (17) dealing with delegations to probation officers and parole boards. Finally, Part IV analyzes the liberty interests at hand by focusing on Supreme Court civil commitment cases and inpatient treatment literature and ultimately determines that this delegation is impermissible. The Note concludes by outlining a proposed solution whereby a judge orders the most restrictive treatment at the time of sentencing while giving the probation officer discretion to choose a less restrictive alternative at a later time.

1. BACKGROUND ON CONDITIONS OF SUPERVISED RELEASE AND PROBATION OFFICERS

   This Part provides background information on the statutory and practical considerations involved in the implementation of post-release mental health conditions. Section I.A focuses on conditions of supervised release, specifically those dealing with mental health treatment. Section I.B details the appointment, duties, and training of probation officers.

   1. Conditions of Supervised Release

      Several important statutory provisions enable judges to fashion conditions of supervised release and allow courts to supervise a defendant following his release from prison. These statutes limit the types of conditions that can be placed upon a defendant, and conditions of supervised release must comply with these statutes. However, compliance with a statute is not sufficient to dispose of the challenge to delegation. Article III is a constitutional provision, and it places limits even on these federal laws. (18)

      18 U.S.C. [section] 3583(c) references factors to be used in determining conditions of supervised release. These factors are also used in determining the length of a sentence:

      (1) the nature and circumstances of the offense and the history and characteristics of the defendant;

      (2) the need for the sentence imposed-- ... (19)

      (B) to afford adequate deterrence to criminal conduct;

      (C) to protect the public from further crimes of the defendant; and

      (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; ... (20)

      (4) the kinds of sentence and the sentencing range established ...;

      (5) any pertinent policy statement... ;

      (6) the need to avoid unwarranted sentence disparities...