Chapter 1: Authority (Probation and Supervised Release Conditions)
A. Statutory Authority
Mandatory Conditions of Supervision: Under 18 U.S.C. §§ 3563(a) and 3583(d), the sentencing court is required to impose specified conditions of probation and supervised release.1 The mandatory conditions are set forth below.
Probation and Supervised Release
- New Crime: That the defendant not commit another federal, state, or local crime.
- Drug Possession: That the defendant not unlawfully possess a controlled substance.
- Drug Use/Testing: That the defendant refrain from any unlawful use of a controlled substance and submit to one drug test within 15 days of release on probation or supervised release and at least two periodic drug tests thereafter (as determined by the court) for use of a controlled substance. This condition may be ameliorated or suspended by the court for any individual defendant if the defendant’s presentence report or other reliable sentencing information indicates a low risk of future substance abuse by the defendant.
- Sex Offender Registration: For a defendant required to register under the Sex Offender Registration and Notification Act, that the defendant comply with the requirements of that Act.
- DNA Collection: That the defendant cooperate in the collection of a DNA sample from the defendant if the collection of such a sample is authorized under section 3 of the DNA Analysis Backlog Elimination Act of 2000.
- Domestic Violence Program: For a domestic violence crime as defined in 18 U.S.C. § 3561(b) by a defendant convicted of such an offense for the first time, that the defendant attend a public, private, or private nonprofit offender rehabilitation program that has been approved by the court, in consultation with State Coalition Against Domestic Violence or other appropriate experts, if an approved program is readily available within a 50-mile radius of the legal residence of the defendant.
- Fine: If the court has imposed and ordered execution of a fine, that the defendant pay the fine or adhere to the court-established installment schedule.
- Publicly Discernible Penalty: Under 18 U.S.C. § 3563(a)(2), for a felony, that the defendant also abide by at least one condition set forth in 18 U.S.C. § 3563(b)(2) or 3563(b)(12) unless the court has imposed a fine under this chapter, or unless the court finds on the record that extraordinary circumstances exist that would make such a condition plainly unreasonable, in which event the court is directed to impose one or more of the other conditions set forth under 18 U.S.C. § 3563(b).
- Restitution and Special Assessment: That the defendant make restitution in accordance with 18 U.S.C. §§ 2248, 2259, 2264, 2327, 3663, 3663A, and 3664; and pay an assessment imposed in accordance with 18 U.S.C. § 3013 and 18 U.S.C. § 3014 (when applicable).
- Notification of Change in Ability to Pay: That the defendant will notify the court of any material change in the defendant’s economic circumstances that might affect the defendant’s ability to pay restitution, fines, or special assessments.
- Probation and Supervised Release
Discretionary Conditions of Supervision: Under 18 U.S.C. §§ 3563(b) and 3583(d), the court may order additional conditions of probation or supervised release. These conditions may be imposed to the extent that they:
- are reasonably related to the relevant sentencing factors listed at 18 U.S.C. § 3553(a);2
- involve only such deprivations of liberty or property as are reasonably necessary for the relevant sentencing purposes listed at 18 U.S.C. § 3553(a);3 and
- are consistent with any pertinent policy statements issued by the Sentencing Commission.4
Modification of Discretionary Conditions of Supervision
- Under 18 U.S.C. § 3563(c), the court may “modify, reduce, or enlarge the conditions of a sentence of probation at any time prior to the expiration or termination of the term of probation, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation and the provisions applicable to the initial setting of the conditions of probation.”
- Under 18 U.S.C. § 3583(e)(2), the court may, after considering the applicable factors in 18 U.S.C. § 3553(a), “modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to modification of probation and the provisions applicable to the initial setting of the terms and conditions of post-release supervision[.]”
Statutory Duties of Probation Officers: The duties of United States probation officers are set forth at 18 U.S.C. § 3603.5 This statute requires probation officers, inter alia, to:
- Instruct a probationer or a person on supervised release, who is under his or her supervision, on the conditions specified by the sentencing court, and provide him or her with a written statement clearly setting forth all such conditions;6
- Keep informed, to the degree required by the conditions specified by the sentencing court, of the conduct and condition of a probationer or a person on supervised release, who is under his or her supervision, and report his or her conduct and condition to the sentencing court;
- Use all suitable methods, not inconsistent with the conditions specified by the court, to aid a probationer or a person on supervised release who is under his or her supervision, and to bring about improvements in his or her conduct and condition;
- Be responsible for the supervision of any probationer or a person on supervised release who is known to be within the judicial district;
- Keep a record of his or her work, and make such reports to the Director of the Administrative Office of the United States Courts (AO) as the Director may require; and
- Keep informed of the conduct, condition, and compliance with any condition of probation, including the payment of a financial penalty of each probationer under his or her supervision, and report these to the court placing such person on probation; also report to the court any failure of a probationer under his or her supervision to pay a fine in default within 30 days after notification of the default so that the court may determine whether probation should be revoked.
B. Federal Rules of Criminal Procedure
- Under Rule 32(c)(1)(A), the probation officer must generally conduct a presentence investigation and submit a report to the court before it imposes sentence.
- Under Rule 32(d)(2), the presentence report must contain the defendant’s history and characteristics, including any prior criminal record and any circumstances affecting the defendant’s behavior that may be helpful in imposing sentence or in correctional treatment. The report must also contain any other information that the court requires, including information relevant to the factors under 18 U.S.C. § 3553(a).
- Under Rule 32.1(c)(2), the court may modify the conditions of probation or supervised release without a hearing if the defendant waives the hearing; or the modification is “favorable to the [defendant]” and does not extend the term of probation or of supervised release, and the U.S. Attorney has received notice of the modification sought and has had a reasonable opportunity to object and has not done so. Although the court must satisfy these procedural requirements and ensure that any modified condition meets statutory sentencing objectives (see: Chapter 1, Section II(A)(3)), no specified quantum of evidentiary proof is required to justify the modification, and there is no requirement that the modification of conditions be predicated upon a violation of an existing condition or a change in the defendant’s circumstances.
C. Principles of Supervision 7
- The federal supervision model is founded on the conditions of release and comprises both controlling and correctional strategies consistent with those conditions that are sufficient, but no greater than necessary, to facilitate achievement of the desired outcomes.
- The desired outcomes of supervision are the execution of the sentence and the protection of the community by reducing the risk and recurrence of crime and maximizing defendant success during the period of supervision and beyond. The goal in all cases is the successful completion of the term of supervision, during which the defendant commits no new crimes; is held accountable for victim, family, community, and other court-imposed responsibilities; and prepares for continued success (i.e., refraining from further crime) through improvements in his or her conduct and condition.
- Research has demonstrated that a blending of controlling and correctional strategies is far more effective than selecting one strategy over the other. Controlling strategies serve the dual purpose of: (1) maintaining awareness of a defendant’s activities and (2) encouraging compliance. Correctional strategies are designed to provide the defendant with additional information, skills, resources, and treatment for the purpose of facilitating positive behavioral change during the period of supervision and beyond.
Principles of Good Supervision: The principles of good supervision are designed to ensure that supervision comports with the requirements and limitations inherent in statutory directives and is purposefully directed toward achieving desired outcomes. Their application in every case will also ensure that the majority of supervision resources are dedicated to those defendants who need them most in order to successfully complete their community sentences.
- Good supervision is purposeful. Every supervision activity should be related to the statutory purposes for which the term of supervision was imposed and the related objectives established for the individual case. Initial and subsequent supervision planning should develop specific goal-directed objectives to be accomplished by this defendant during the term of supervision and the strategies that the probation officer will undertake to monitor compliance and facilitate the accomplishment of those objectives. Every supervision contact should be integral to implementing the overall supervision strategies and have a purpose that is directly related to case objectives.
- Good supervision is individualized. It is tailored to the risks, needs, and strengths presented by the individual defendant as determined by careful assessment of each case. Probation officers carry out their responsibilities by assessing the risks, needs, and strengths of each defendant to determine the appropriate level of supervision.
- Good supervision is proportional. Supervision monitoring and intervention strategies are to involve no greater deprivations of liberty or property than are reasonably necessary to address relevant sentencing purposes. Supervision programs and tools are to be used when, but only when, they are the least intrusive means necessary to facilitate supervision goals.
- Good supervision is multidimensional. Probation officers use skills from various disciplines to simultaneously monitor and, as necessary, control and correct defendant behavior. These include the investigative skills of law enforcement and the treatment and service-delivery skills of social workers. Investigative skills are used for the primary purpose of planning for success rather than documenting failure. The primary focus of treatment and service-delivery skills is to improve circumstances that are linked to criminal behavior or affect effective supervision practices (e.g., substance abuse, mental health, employment, education, and family and community support). The purpose of these interventions is to establish an environment designed to prevent noncompliance before it occurs. Although the appropriate blend of controlling and correctional strategies may differ from case to case, it is never appropriate for a supervision plan to be aimed solely at catching the defendant doing something wrong (the job of law enforcement) or solely at providing social services to the defendant (the job of social workers).
- Good supervision is proactive in implementation. Probation officers should be aware of changes in defendants’ circumstances throughout the period of supervision and actively engage in assessing the impact of any changes on the appropriate level and type of supervision. Depending on the risk and needs in the individual case, this may not be accomplished solely from the probation office or with information provided by the defendant alone. In some cases, probation officers should independently assess a defendant’s circumstances through contacting the defendant and his or her social network in the community.
- Good supervision is responsive to changes. Probation officers should adjust supervision as required on an ongoing basis to intervene with controlling and correctional strategies to address indications of heightened risk or to respond to behaviors that do not comply with the conditions of release. Response to noncompliance should be purposeful and proportionate, certain and timely, realistic and escalating; and should include elements designed to both provide a negative consequence for the behavior and change the circumstances that led to the noncompliance. On the other hand, there is a rebuttable presumption that the intrusiveness and frequency of supervision activities will be reduced over time for stable, compliant defendants who are meeting their supervision objectives. In implementing supervision, officers should be as quick with praise and other incentives for a defendant’s accomplishments as they are to respond swiftly with both negative consequences and correctional interventions to noncompliant behavior.
- Certain core activities are to be undertaken during the course of supervision in every active supervision case to meet the probation officer’s responsibility to stay informed, including visits to the defendant’s home and contacts with members of the defendant’s social network. In addition to keeping the probation officer informed, these core activities can also be used to implement controlling and correctional interventions. The frequency of core activities is to be dictated by the relevant issues at each stage in each case.
- Probation officers must carefully assess the risks and needs in all active supervision cases throughout the course of supervision. For defendants categorized as Low Risk by the Post Conviction Risk Assessment (PCRA), officers should generally supervise a case under standards that require less intervention and less in-person contact with the defendant and his or her social network.8
Discretionary Conditions of Supervision: Discretionary conditions of supervision are differentiated into “standard” and “special” conditions. Standard conditions are applicable to all defendants. Special conditions provide for additional sanctions (in the case of probation or parole), restrictions, correctional interventions, or monitoring tools as necessary to achieve the purposes of sentencing in the individual case.
Standard Conditions of Supervision
- Standard conditions are basic behavioral expectations for the defendant and minimum tools required by probation officers to adequately monitor the conduct and condition of all defendants under supervision.
- The basic behavioral expectations set by the standard conditions coincide with avoidance of risk-related factors such as substance abuse and criminal associations and the strengthening of prosocial factors such as employment. The tools they provide include such basic strategies as reporting to the probation officer, providing notification of changes in residence or employment, and seeking permission to travel.
- Since courts may, by local rule, modify, delete, or add to the standard conditions, standard conditions in one district may not be the same as those in another district. It is the conditions imposed on the judgment in the individual case that set both requirements for and limitations on the activities that officers may undertake in the individual case.
- On the other hand, some level of consistency in standard conditions is necessary because approximately 20 percent of defendants are supervised in a district different than the sentencing district. As part of a national system, districts have a shared responsibility to maximize the effectiveness of supervision, regardless of where the defendant was sentenced.
Special Conditions of Supervision
- Special conditions are to be recommended by probation officers only when the deprivation of liberty or property they entail is tailored specifically to address the issues presented in the individual case.
- The most common special conditions impose additional sanctions for probation or parole cases (e.g., community service); restrictions on location, movement, and/or associations (e.g., community confinement, home confinement); correctional interventions (e.g., substance abuse or mental health treatment, financial counseling); or additional monitoring tools (e.g., substance abuse testing, financial disclosure).
- Other specifically crafted conditions may be imposed to address particular types of risks or needs presented in the individual case.
- In recommending a unique special condition, probation officers should ensure that the recommended wording is clear, legally sound, and meets the intended purpose.
- Before recommending special conditions, probation officers should consider all of the mandatory and standard conditions that may already address a particular risk or need. If the probation officer determines that the mandatory and standard conditions do not adequately address the defendant’s risks and needs, he or she should consider recommending a special condition.
- When considering special conditions, probation officers should avoid presumptions or the use of set packages of conditions for groups of defendants and keep in mind that the purposes vary depending on the type of supervision. Probation officers should ask first whether the circumstances in the specific case require such a deprivation of liberty or property to accomplish the relevant sentencing purposes.
- Probation officers generally recommend special conditions prior to the imposition of sentence. For defendants facing lengthy terms of imprisonment, probation officers should consider whether the risks and needs present at the time of sentencing will be present when the defendant returns to the community. In some cases, it may be appropriate to avoid recommending special conditions until the defendant is preparing to re-enter the community from prison.
- Throughout the ongoing supervision assessment and implementation process, probation officers recommend the addition, modification, deletion, amelioration, or suspension of conditions. Probation officers should recommend that unnecessary or unenforceable conditions be formally removed.
- When testing, evaluation, and treatment services are ordered (e.g., substance abuse treatment, mental health treatment, sex offender treatment), defendants should be required to pay for these services to the degree that they are able. The collection of reasonable co-payments for services meets both administrative and treatment objectives. It provides good stewardship of public money and ensures that limited funding resources are used for maximum benefit. Collection also meets the treatment purpose of providing a symbol for defendants of their investment in the treatment process. Research has shown that if a defendant feels invested in the treatment process, he or she is more likely to achieve success. It is also important that the wording of the requirement to contribute to the cost of treatment does not inadvertently delegate the establishment of the amount of the co-payment to the probation officer. Districts are encouraged to establish a court-approved sliding scale for treatment services that is responsive to changes in a defendant’s financial circumstances.
- Standard Conditions of Supervision
1 The mandatory conditions of parole are set forth at 18 U.S.C. § 4209.
2 For supervised release cases, these factors are (1) the nature and circumstances of the offense; (2) the history and characteristics of the defendant; (3) deterrence; (4) protection of the public; and (5) providing needed correctional treatment to the defendant. 18 U.S.C. §§ 3583(d)(1), 3553(a)(1), 3553(a)(2)(B)-(D). For probation cases, these factors are the same as in supervised release cases and also include reflecting the seriousness of the offense, promoting respect for the law, and providing just punishment for the offense. 18 U.S.C. §§ 3563(b) and 3553(a)(1)-(2).
3 For supervised release cases, conditions must involve “no greater deprivation of liberty than is reasonably necessary” for the purposes of deterrence; protection of the public; and providing needed correctional treatment to the defendant. 18 U.S.C. §§ 3583(d)(2) and 3553(a)(2)(B)-(D). For probation cases, they must “involve only such deprivations of liberty or property as are reasonably necessary” for the purposes of deterrence; protection of the public; providing needed correctional treatment to the defendant; and promoting respect for the law, and providing just punishment for the offense. 18 U.S.C. §§ 3563(b) and 3553(a)(2).
4 18 U.S.C. § 3583(d)(3).
5 These duties are expanded to the parole population by 18 U.S.C. §§ 4203 and 3655.
6 See also 18 U.S.C. §§ 3563(d) and 3583(f) (requiring the court to direct that the probation officer provide the defendant with a written statement that sets forth all the conditions of probation and supervised release and is “sufficiently clear and specific to serve as a guide for the defendant’s conduct and for such supervision as is required”).
7 The Judicial Conference of the United States (hereafter, “Judicial Conference”) was established by Congress in 1922 as the principal policy-making body concerned with the administration of the United States courts, including the probation and pretrial services system. While the Judicial Conference approves national policies to guide the courts and probation offices in the individual districts, many districts also have local written policies that substantially supplement national policies. The Judicial Conference approves policies that apply to United States district court employees, including employees of the United States probation and pretrial services system, in the performance of their duties.
8 For an overview of the Federal Post Conviction Risk Assessment, see http://www.uscourts.gov/file/pcrasep2011pdf-0.