Courts Face Growing Battle Over Limits on Ex-Convicts

8-16-2009 National:

When felons are released from prison, what is the best way to give them back their freedom but make sure they don't commit a crime again?

Trial judges across the country are struggling with that question, particularly as they confront a rise in federal sex-offense cases, some of which involve computer downloads of illegal pornography. The debate has intensified as some judges impose what felons say are broad or arbitrary restrictions on how they live once they are freed from prison, from bans on alcohol and gambling to constraints on housing arrangements.

In 2007, Briane Woods, a single mother of one in Odessa, Texas, was convicted of distributing crack cocaine and received a 10-year prison sentence. U.S. District Judge Robert Junell in Midland, Texas, ruled that during the first five years after her release, Ms. Woods couldn't live with anyone other than a relative or spouse, restrictions that the judge said were needed to impose "stability" in her home.

Last year, an appeals court struck down that ruling, saying it deprived Ms. Woods of "her constitutional right to liberty."

The details of supervised release, which entails monitoring felons after they leave federal prison, are spelled out by judges when they issue sentences. Some defendants have successfully challenged the release terms on the grounds that they would impede rehabilitation, or by arguing that the restrictions were unrelated to the original crime.

Supervised release became standard in 1987, after Congress established new guidelines for sentencing federal felons, eliminating the possibility of early parole and imposing restrictions on released felons.

During supervised release, felons are prohibited from breaking any laws and are required to submit to drug testing. Those convicted of domestic violence or drug crimes must attend rehabilitation programs during this period. The penalty for violating these conditions can be more federal prison time.

As of September 2008, more than 95,000 convicts were serving a term of supervised release, up from 51,000 in 1997, according to the Administrative Office of the U.S. Courts.

Judges are allowed to impose special conditions during supervised release, as long as the conditions are related to the crime and don't cause "unnecessary deprivations" of liberty. For example, judges can forbid ex-convicts from associating with people who helped them commit crimes in the past.

In some cases, judges have barred felons from using the Internet, while others have prevented sex offenders from driving a car or said they must wear "appropriate" clothing.

Until recently, challenges to supervised release conditions were rare. Most defendants who pled guilty focused their appeals on challenging prison time, lawyers say. But that might be changing.

"I tell my clients now they need to worry just as much about the supervised release as about the sentence because it will have equally long-lasting life consequences for them," said Troy Stabenow, a federal public defender in Jefferson City, Mo.

One of Mr. Stabenow's clients, William Robert Bender, served roughly four years in prison for engaging in sexual acts with a teenager when he was 27 years old. After he was released last year, he violated the conditions of his supervised release by viewing adult pornography online, which occurred at a public library. He received an 18-month federal prison sentence.

The judge also imposed a 10-year term of supervised release during which Mr. Bender wouldn't be allowed to possess a computer or any pornography, couldn't enter a library or "frequent places where minors are known to frequent" without prior approval. On appeal, a higher court struck down those special conditions, except for the computer ban. Mr. Bender and his probation officer declined to comment.

U.S. District Judge Scott O. Wright of Kansas City, Mo., who imposed the special conditions on Mr. Bender, said in an interview that he did so at the recommendation of the local probation office. He added that he had doubts about some of the conditions at the time, and didn't disagree with the appeals court's decision.

Determining how best to rehabilitate sex offenders is difficult, Judge Wright said. "When you understand there's no cure for them, the only thing you can do is try to help them live in a somewhat normal condition."

Appeals courts that have struck down Internet bans say former convicts can't make a transition to normal life without using the Web, even at work. "Is someone going to be sent back to prison for using an iPhone?" asked Doug Berman, a law professor at Ohio State University who researches sentencing issues.

Special conditions on where and how felons live are becoming increasingly difficult to comply with, said Mr. Stabenow, the public defender. "Frankly they are often crazy," he said. "Where are you going to get a job?

Until an appeals court overturned special conditions in two cases last year, Judge Junell of the Texas district court routinely required that felons only live with family members following their release from prison.

"If you throw people back to the same structure they were in when they committed the crime, odds are they will commit the crime again," he said in an interview. After the appeals court rejected the conditions on constitutional grounds, Mr. Junell stopped the practice. ..Source.. by Amir Efrati