Thursday, February 12, 2009

Sixth Circuit Protects us from Guys with Jobs

Today's opinion in United States v. Kontrol, illustrates how the current federal supervised release system fails to truly achieve the purpose for which it was created. Instead of protecting the public from the dangerous actions of Mr. Kontrol, the district court violated a man's supervised release for not telling his probation officer of new employment, then sentences him to a 15 month term of imprisonment. Granted there were some rather inappropriate remarks regarding his probation officer made by Mr. Kontrol, but at its heart, the district court sentenced the guy, not for not having a job, but for not telling the probation officer about it soon enough. Is this justice?

I recognize that the supervisee has a very tough row to hoe when he is on appeal of a revocation, but the Sixth Circuit's reasoning behind affirming the revocation and sentence is spurious. Namely that, "failing to report new part time employment, to be sure, often will pose little danger to the public. But when a three time felon neglects to tell his probation officer about a job that involves obtaining social security numbers (and other sensitive information) from individuals for what the prosecution described as a 'predatory foreclosure company,' JA 176, the risk of harm to the public is more acute." This is complete bunk. If Mr. Kontrol had been convicted of identity theft, maybe the Sixth Circuit's concern regarding persons sensitive information may be at issue. But the decision does not point to any specific supervised release condition that limited Mr. Kontrol's working with sensitive information. Such a condition does exist, is often imposed by district courts, and obviously was not imposed in his case. Mr. Kontrol had been convicted of the crime of "interstate and foreign travel in aid of drug-related racketeering," not identity theft. The Sixth Circuit's concern that every person ever convicted of a felony working at a job where person's sensitive information is at issue seems to be them considering an inappropriate factor and making blanket characterizations about all former felons, regardless of their crime of conviction.

But what this and all supervised release cases call into question is whether the over-arching supervised release system we have crafted in this country is achieving its goals. We ask a person to serve 85% (at best) of rather lengthy sentences as service of their debt to society, then when they get out, probation officers are there looking over their shoulders waiting to find violations to send them right back to prison. Do probation officers often try to help his supervisees transition back into life after prison, or are they just looking for a reason to send their supervisees back to prison so that they can get them off their case load? My gut feeling is more of the latter as opposed to the former. Maybe with some of the recent (although yet to be seen on the street) changes outlined in the Second Chance Act we will see actual reform to how federal courts treat persons recently released from prison on supervised release, but right now, I wonder if the current system is achieving the purpose for which it was created, i.e. protecting the public from other crimes of ex-cons? Or is it just a way of imposing a second sentence using the preponderance of the evidence standard on guys recently released from custody who the probation officers just don't like?

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