We’ve written a lot here about federal supervised release and the conditions that allow for a judge to release our clients early from their term of supervision. One of the places we get our information is from a policy document that guides federal probation departments.
This document, called Monograph 109 which is a guidebook for probation departments. One of the sections in Monograph 109, namely §380.10(b), lays out a list of policy considerations that probation departments must consider for making recommendations for or against requests for early release from federal probation.
We did a review of all 9 of these factors in our post about it here.
The case that presented it’s conclusion this week, however, speaks to the outlier cases that these policy statements address.Factor #3 talks about aggravated offenses, factor #4 talks about a history of violence, and factors #8 & #9 talk about risks to victims and the public at large.
However, later in that same section it states that the existence of outstanding financial obligations per se does not adversely affect early termination eligibility (§§c), and failure to meet criteria listed should not automatically exclude an offender from further consideration (§§d), and there is a presumption in favor of recommending early termination for probationers and supervised releasees who have been supervised for at least 18 months and are not violent, drug, sex offenders, terrorists, present a risk to public or victims, and are free from any moderate or higher violations.
Armed Bank Robbery
The case that presented itself to us this week, with its conclusion, started way back in January of 2018. The case itself began with an armed bank robbery in 2006, and resulted in a 101 month prison sentence. The defendant, our client, reached out to see if he could use our help in applying for early termination of his supervised release.
He was given 5 years of supervised release and had already completed about 3.5 years of that term. He had less than $100k in restitution which stemmed from the money stolen from the bank robbery crime. ((for completeness’ sake, this client pleaded guilty and was a first-time offender with no criminal history points and a Criminal History Category of I))
Typically, an answer to a request for early termination is given by a judge within 2 months of the initial request being filed. A majority of the requests are decided after about 5 weeks.
This case was different. The judge in this case wanted 3-4 separate briefs and a lot of documentations from the defendant/client and the probation officer in charge of his supervision. Usually this is a good sign, as a judge who is going to deny a request like this will deny it quickly. Normally, if it takes a judge longer than 8 weeks to publish an order, the chances of that order being positive for our clients goes up drastically.
However, this wasn’t the case here.
The judge denied our client’s request here. The denial was given two separate parts. First, the judge cited the c0-defendants in the case. 18 U.S.C. §3553(a)(6) talks about a judge’s requirement to be fair and even-handed (read: consistent) between similar defendants with similar criminal conduct. In this case the judge decided that if he were to let this defendant out of his supervision early, he would be compelled to do the same for his co-defendants that committed the same crimes.
While this is understandable, this doesn’t account for the conduct of each defendant after their release from prison, and only considers their criminal conduct. For statutory reasons, this is shaky legal ground because the “seriousness of the original offense” (( §3553(a)(2)(A) )) is not one of the factors from original sentencing that is allowed to be considered for an early termination request.
The second reason was restitution, and this is a big sticking point for many judges. Because this defendant had outstanding restitution, this judge (and many others) are timid to grant early release from supervision. This is because supervised release allows dire consequences if defendants just stop paying their restitution monthly payments.
You see, while on supervision, if a defendant stops paying he can be sent back to prison as this is a violation of his/her terms of supervision. However, after supervised release is over, outstanding restitution is converted to a civil judgment and has all the force and effect of a debt being in collections.
Basically, they can come after you and garnish your wages, but can’t send you to prison for non-payment of restitution.
It took six months of back-and-forth with the court for this case to come to a resolution. It wasn’t the order our client wanted, but at least it is over and he doesn’t need to wait for the decision with bated breath anymore.
We here at PCR Consultants like to publish and brag about the difficult cases that we are able to get free from supervision. However, we are open and honest with our clients that it doesn’t always go that way. This was one of those cases.