United States v. Shawn Siegel

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 13-1633, -1640
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SHAWN M. SIEGEL,
Defendant-Appellant.
____________________
Appeals from the United States District Court for the
Central District of Illinois.
Nos. 1:11-CR-10093-MMM, 1:12-CR-10010-MMM — Michael M. Mihm,
Judge.
____________________
No. 13-1767
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HAYWOOD NORFLEET,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
2 Nos. 13-1633, -1640, -1767
No. 3:12-CR-30099-SEM-BGC — Sue E. Myerscough, Judge.
____________________
ARGUED APRIL 8, 2014 — DECIDED MAY 29, 2014
____________________
Before POSNER and TINDER, Circuit Judges and LAWRENCE,
District Judge. *
POSNER, Circuit Judge. We have consolidated these two
criminal appeals because (with an exception discussed at the
end of the opinion) both challenge only conditions of super-
vised release, imposed by the district court, and because the
challenges raise closely related issues concerning such condi-
tions. The issues ramify far beyond these two cases, howev-
er, which exemplify common but largely unresolved prob-
lems in the imposition of such conditions as a part of federal
criminal sentencing.
Defendant Siegel was convicted of child sexual abuse,
and the conditions of supervised release imposed on him—
all for the entirety of his life remaining upon completion of
his prison sentence—include a ban on the possession of legal
or illegal material that “contains nudity” and the use any
mood-altering substance, and a requirement that he undergo
a sexual-offender treatment program. Defendant Norfleet
was convicted of distributing illegal drugs. The conditions of
supervised release imposed on him (for an eight-year period
commencing with his release from prison) include a ban on
the use of mood-altering substances and on excessive use of
alcohol, and a requirement that he undergo substance-abuse
treatment and cognitive behavioral therapy. These are only a
* Of the Southern District of Indiana, sitting by designation.
Nos. 13-1633, -1640, -1767 3
few of the discretionary conditions of supervised release im-
posed on the two defendants.
The Sentencing Reform Act of 1984 replaced parole for
federal crimes with supervised release. 18 U.S.C. § 3583.
Granted in the discretion of the federal parole board after a
convicted defendant began serving his sentence, parole al-
lowed him to be released before the expiration of his prison
term, on conditions (coterminous with that term) designed
to reduce the likelihood of his committing further crimes. In
contrast, supervised release (a form of what is called “com-
munity supervision,” see, e.g., Leanne Fiftal Alarid, Commu-
nity-Based Corrections (9th ed. 2013); Edward J. Latessa &
Paula Smith, Corrections in the Community (5th ed. 2011)) en-
tails restrictions imposed at sentencing that don’t take effect
until the defendant is released from prison. It thus lengthens
his sentence, unlike parole. On supervised release generally,
see U.S. Sentencing Commission, Federal Offenders Sentenced
to Supervised Release (July 2010), www.ussc.gov/sites/default/
files/pdf/training/annual-national-training-seminar/2012/2_
Federal_Offenders_Sentenced_to_Supervised_Release.pdf
(visited May 27, 2014, as were the other websites cited in this
opinion).
Apart from a handful of conditions required by the Sen-
tencing Reform Act itself, see section 3583(d) and U.S.S.G.
§ 5D1.3(a), conditions of supervised release are discretion-
ary. Some of the discretionary conditions are designated as
“standard,” §§ 5D1.3(c); others are called “special condi-
tions” of supervised release, §§ 5D1.3(d)–(e), and are rec-
ommended for particular offenses. The list of conditions is
not intended to be exhaustive; sentencing judges can impose
conditions of their own devising. All discretionary condi-
4 Nos. 13-1633, -1640, -1767
tions of supervised release must, however, comply with
overall federal sentencing policy as stated in 18 U.S.C.
§ 3553(a), especially subsection (a)(2), which requires the
judge to consider “the need for the sentence imposed—(A)
to reflect the seriousness of the offense, to promote respect
for the law, and to provide just punishment for the offense;
(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 vo-
cational training, medical care, or other correctional treat-
ment in the most effective manner.” Conditions of super-
vised release are of course part of the sentence.
Unfortunately the directives in section 3553(a)(2) are
vague and general, and as with so many multifactor stand-
ards there is no attempt to give weights to the different fac-
tors, though without weighting its factors a multifactor test
is not a test but a list, and cannot yield an objective result. A
recent article offers some helpful guidance, however. It ex-
plains that before imposing conditions of supervised release
(other than a handful that must be imposed regardless of the
offense, such as not committing another crime after being
released from prison), “the judge must find that such a con-
dition: (1) is ‘reasonably related’ to the background of the
offense, the offender, or to one of the purposes of sentencing
(other than punishment); (2) involves no greater deprivation
of liberty than ‘reasonably necessary’ for the relevant pur-
poses of sentencing; and (3) is consistent with the policy
statements of the Sentencing Commission.” Fiona Doherty,
“Indeterminate Sentencing Returns: The Invention of Super-
vised Release,” 88 N.Y.U. L. Rev. 958, 1012 (2013) (footnotes
omitted). Logically, (3) is not applicable to discretionary
conditions already listed in the guidelines, such as sub-
Nos. 13-1633, -1640, -1767 5
stance-abuse treatment; but the decision to impose any dis-
cretionary conditions must comply with the section 3553(a)
sentencing factors. See 18 U.S.C. §§ 3583(c), (d)(1), (d)(2). So
although a defendant’s presentence report, prepared by the
federal probation service, normally recommends particular
conditions of supervised release, the judge is not bound by
the recommendations and cannot be, because he is required
to conform all parts of his sentence to section 3553(a).
As we’ll see when we examine the particulars of our two
cases, there are serious problems with how some district
judges are handling discretionary conditions of supervised
release at sentencing. Two of the problems are relatively mi-
nor, and we mention them quickly to get them out of the
way. One is the number—thirty—and the other the variety
of the listed discretionary conditions. See 18 U.S.C. § 3563(b);
U.S.S.G. §§ 5B1.3(c)–(e). The sheer number may induce haste
in the judge’s evaluation of the probation service’s recom-
mendations and is doubtless a factor in the frequent failure
of judges to apply the sentencing factors in section 3553(a) to
all the recommended conditions included in the sentence.
Because conditions of supervised release, though im-
posed at sentencing, do not become operational until the de-
fendant is released, the judge has to guess what conditions
are likely to make sense when the defendant is released. The
longer the sentence, the less likely the guess is to prove accu-
rate. Conditions that may seem sensible at sentencing may
not be sensible many years later, when the defendant is fi-
nally released from prison. (Defendant Siegel was sentenced
to 30 years in prison.) And while it’s true that conditions of
supervised release can be modified at any time, 18 U.S.C.
§ 3583(e)(2), modification is a bother for the judge, especially
6 Nos. 13-1633, -1640, -1767
when, as must be common in cases involving very long sen-
tences, modification becomes the responsibility of the sen-
tencing judge’s successor because the sentencing judge has
retired in the meantime.
A more serious problem with the current system is that,
as we’ll see when we discuss the conditions imposed in our
two cases, a number of the listed conditions, along with a
number of conditions that judges modify or invent, are
vague.
Another serious problem is the difficulty of predicting
recidivism. Reducing recidivism is the main purpose of su-
pervised release, though some of the conditions of super-
vised release are intended to help the released prisoner ad-
just to life on the outside even if there is no worry that with-
out them he would be likely to commit crimes; it may be ap-
parent that by the time he’s released from prison he will be
too old or infirm to resume a life of crime.
There is an extensive social scientific literature on the
causes and cures of recidivism. See, e.g., Francis T. Cullen,
Cheryl Lero Jonson & Daniel S. Nagin, “Prisons Do Not Re-
duce Recidivism: The High Cost of Ignoring Science,” Prison
Journal, vol. 91, no. 3 supp., Sept. 2011, p. 48S; Cassia Spohn
& David Holleran, “The Effect of Imprisonment on Recidi-
vism Rates of Felony Offenders: a Focus on Drug Offend-
ers,” 40 Criminology 329 (2002); R. Karl Hanson & Monique
T. Bussière, “Predicting Relapse: A Meta-Analysis of Sexual
Offender Recidivism Studies,” 66 J. Consulting & Clinical Psy-
chology 348 (1998). And the probation service is well aware of
this literature. See, e.g., U.S. Courts, “Risk Assessment Tool
Helps Probation Officers,” www.youtube.com/watch?v=S-
nGDKgdTi4; Laura M. Baber & Mark Motivans, “Extending
Nos. 13-1633, -1640, -1767 7
Our Knowledge About Recidivism of Persons on Federal
Supervision,” Federal Probation, vol. 77, no. 2, Sept. 2013,
www.uscourts.gov/uscourts/FederalCourts/PPS/Fedprob/20
13-09/knowledge.html.
But there are limitations to the studies as guides to sen-
tencing. There is the difficulty of determining the number of
crimes committed by a person after his release from prison—
the number that is the real measure of recidivism—as dis-
tinct from the number of his arrests or convictions, which
may be much smaller. And statistical studies are unlikely to
enable a confident prediction that a particular inmate will or
will not commit crimes after he is released. Moreover, while
there is evidence that supervised release and other programs
of community supervision do reduce recidivism, perhaps
substantially, see D.A. Andrews & James Bonta, “Rehabili-
tating Criminal Justice Policy and Practice,” 16 Psychology,
Public Policy & Law 39 (2010); Paula Smith, Paul Gendreau &
Kristin Swartz, “Validating the Principles of Effective Inter-
vention: A Systematic Review of the Contributions of Meta-
Analysis in the Field of Corrections.” 4 Victims & Offenders
148 (2009), there is controversy over the efficacy of some typ-
ical conditions of supervised release.
For example, a condition commonly imposed on a sex of-
fender is forbidding him access to pornography. Suppose
he’s a rapist, but only of adult women; he has no sexual in-
terest in minors. Denying him access to pornography may
make him less likely to commit rape when he’s released
from prison if (at the time of sentencing) he tests high on
measures of sexual aggression, Drew A. Kingston et al.,
“Pornography Use and Sexual Aggression: The Impact of
Frequency and Type of Pornography Use on Recidivism
8 Nos. 13-1633, -1640, -1767
Among Sexual Offenders,” 34 Aggressive Behavior 341, 348
(2008); Michael C. Seto et al., “The Role of Pornography in
the Etiology of Sexual Aggression,” 6 Aggression & Violent
Behavior 35, 46–48 (2001)—or more likely because pornogra-
phy can be a lawful substitute source of sexual gratification
for a sex crime for which the perpetrator if caught is likely to
be severely punished, whereas viewing pornography other
than child pornography is not criminal. Milton Diamond,
Eva Jozifkova & Petr Weiss, “Pornography and Sex Crimes
in the Czech Republic,” 40 Archives of Sexual Behavior 1037,
1040–42 (2011); Berl Kutchinsky, “The Effect of Easy Availa-
bility of Pornography on the Incidence of Sex Crimes: The
Danish Experience,” 29 J. Social Issues 163, 176–78 (1973).
A further problem, though it seems to arise rarely, is that
because the conditions of supervised release are imposed at
sentencing, the conditions recommended to the judge at the
sentencing hearing may be a product of negotiation between
prosecution and defense. The defendant’s lawyer may offer
the prosecution a trade—more supervised release for a re-
duced prison term—and the prosecutor may accept. And
when the adversaries thus agree, the sentencing judge, ha-
bituated as American judges are to adversary procedure,
may be reluctant to subject the agreed-upon conditions to
critical scrutiny. Yet the law is clear that the fact that the
prosecution and the defense agree on a sentence does not
excuse the judge from having to determine its conformity to
the sentencing factors in 18 U.S.C. § 3553(a). Freeman v. Unit-
ed States, 131 S. Ct. 2685, 2692 (2011) (plurality); United States
v. Aguilar-Ibarra, 740 F.3d 587, 591 (11th Cir. 2014) (per curi-
am); U.S.S.G. § 6B1.2, commentary.
Nos. 13-1633, -1640, -1767 9
And last is a concern that probation officers spend too
much time on enforcement (that is, making sure the released
prisoner is complying with all the conditions of supervised
release) relative to supervision, James Bonta et al., “Explor-
ing the Black Box of Community Supervision,” 47 J. Offender
Rehabilitation 248 (2008)—a serious concern given the under-
staffing of the probation service, discussed next.
By default, most judges, in deciding what conditions of
supervised release to impose, rely heavily on the recom-
mendations of the federal probation service (formally, the
“U.S. Probation and Pretrial Services System”), a unit of the
Administrative Office of the U.S. Courts. (For a comprehen-
sive summary of the duties and functions of the probation
service, prominently including supervised release, see U.S.
Courts, Guide to Judiciary Policy, vol. 8: Probation and
Pretrial Services, part E: “Supervision of Federal Offenders”
(2010).)
A probation officer prepares the presentence report that
advises the judge on the sentence to give the defendant who
has been found guilty. The report (or sometimes a later sup-
plement to it) will, under the heading “Sentencing Recom-
mendation,” suggest conditions of supervised release, with
usually a brief reason for each one. The brevity of the rea-
sons given may reflect the fact that the probation service,
though responsible and knowledgeable, is understaffed. The
number of persons under supervision either pre- or post-
trial is approaching 200,000. See Matthew G. Rowland, “Too
Many Going Back, Not Enough Getting Out? Supervision
Violators, Probation Supervision, and Overcrowding in the
Federal Bureau of Prisons,” Federal Probation, vol. 77, no. 2,
Sept. 2013, www.uscourts.gov/uscourts/FederalCourts/PPS/
10 Nos. 13-1633, -1640, -1767
Fedprob/2013-09/too-many.html. Yet there are only about
5,400 probation officers. Dividing the number of persons
under supervision by the number of officers yields a ratio of
36 such persons to each officer, which seems too many for
effective supervision, especially when we consider that
90,000 federal criminal defendants were sentenced in the
year ending on September 30, 2010 (we haven’t found more
recent statistics), so that the probation service had to write
90,000 presentence reports in addition to performing its oth-
er duties. There is some evidence that reducing caseloads
can reduce recidivism, at least if the intensity of supervision
is not reduced, without increasing the number of revocations
of release that are based on technical violations of conditions
of release. Sarah Kuck Jalbert et al., “Testing Probation Out-
comes in an Evidence-Based Practice Setting: Reduced Case-
load Size and Intensive Supervision Effectiveness,” 49 J. Of-
fender Rehabilitation 233 (2010).
Judges are limited in their ability to look behind the rec-
ommendations of the probation officers. The academic stud-
ies of recidivism are unfamiliar to most judges and often dif-
ficult for a judge who lacks a social-scientific background to
evaluate. And it is doubtful that even experienced judges,
who have sentenced a great many criminals, acquire from
that experience a sophisticated understanding of the likely
behavior of convicted criminals upon their release from
prison and how that behavior can be altered by imposing
post-release restrictions before, often long before, a prison-
er’s release.
So it is both inevitable and proper that judges give
weight to the probation service’s recommendations regard-
ing what conditions of supervised release to impose. But
Nos. 13-1633, -1640, -1767 11
how much weight? Normally the recommendations in the
report are those of a single probation officer, and the scien-
tific basis (if there is a scientific basis) of his recommendation
is not disclosed in his presentence report. Probation officers
receive only limited training in the duties of their job (con-
sisting primarily of six weeks at the Federal Probation and
Pretrial Services Training Academy, though there is follow-
on training as well). See U.S. Courts, “Probation and Pretrial
Services: Officers and Officer Assistants,” www.uscou
rts.gov/federalcourts/probationpretrialservices/officers.aspx.
Sentencing judges don’t always rely entirely on the pro-
bation officer’s recommendations of conditions of super-
vised. The conditions the judge decides to impose may be an
amalgam of the recommendations in the presentence report,
(rarely) the recommendations of the prosecutor and the de-
fense lawyer, and the judge’s intuitions. But often judges
seem not to look behind the recommendations, as suggested
by the fact that in his sentencing statement the judge may
recite the conditions of supervised release that he is impos-
ing without giving reasons for why he imposed those par-
ticular conditions. Christine S. Scott-Hayward, “Shadow
Sentencing: The Imposition of Federal Supervised Release,”
18 Berkeley J. Crim. L. 180, 187 (2013). Often, indeed, even
though as we said earlier 18 U.S.C. § 3553(c) requires the
sentencing judge to explain how his sentence (and remember
that the conditions of supervised release that he imposes are
part of the sentence) comports with the sentencing factors
listed in section 3553(a), see Gall v. United States, 552 U.S. 38,
49–50 (2007); United States v. Washington, 739 F.3d 1080,
1081–82 (7th Cir. 2014), he will merely repeat what is in the
Sentencing Recommendation in or attached to the presen-
tence report. He will not explain how the recommendation
12 Nos. 13-1633, -1640, -1767
comports with the sentencing factors, which is a determina-
tion for the judge to make, not the probation service.
One reason for this judicial insouciance is that the sen-
tencing hearing may be the first occasion on which defense
counsel learns of the probation service’s recommendation for
conditions of supervised release. With no advance notice,
counsel may have nothing to say about the conditions; nor is
he likely to be prodded by his client, because the remoteness
of the future time at which the conditions will take effect
may very well make them a matter of indifference to the de-
fendant. Criminals who court long prison sentences tend to
have what economists call a “high discount rate.” That is,
they give little weight to future costs and benefits. That is
why they are not deterred by the threat of a long prison sen-
tence, since the added cost of the added length of the sen-
tence will not be experienced for many years. Defendants are
more likely to be concerned with whether they can self-
surrender at a later date to begin serving their prison term
rather than being taken directly from the sentencing hearing
to prison, and what prison they will be assigned to—
determinations that will affect their immediate welfare—
than with restrictions that will not take effect for many years.
With therefore no adversary challenge to the conditions of
supervised release, the judge, being habituated to adversary
procedure, is unlikely to question the conditions recom-
mended by the probation service.
Against this background we turn to the conditions of su-
pervised release imposed on our two defendants. We begin
with Siegel, convicted along with his wife of ugly sexual of-
fenses against multiple children, including his two-year-old
daughter—offenses including both physical sexual abuse of
Nos. 13-1633, -1640, -1767 13
the child and creation of child pornography—and sentenced
to 30 years in prison. The judge ordered that the conditions
of supervised release imposed on him remain in force for the
rest of his life. Given time served and assuming good behav-
ior in prison, he will be approaching 60 when released, and
therefore likely to remain subject to these conditions for
many years.
The judge at sentencing read off the conditions that he
had decided to impose. He made a few useful clarifying
changes in some of the conditions but did not attempt to jus-
tify any of the conditions by reference to the statutory sen-
tencing factors. He did say that “in terms of the prohibition
against [Siegel’s] possessing or having under his control any
material, legal or illegal, that contains nudity, I’m satisfied
that in his situation that’s justified.” But that is a conclusion,
rather than a reason related to anything in section
3553(a)(2)—and not a very clear conclusion. It was made in
response to the prosecutor’s argument that the ban on nudi-
ty was needed in order to prevent Siegel from downloading
child pornography and, if this was discovered, claiming that
he’d done so by accident while searching for adult pornog-
raphy. The argument supported a prohibition against
Siegel’s having access to any pornography, but not neces-
sarily against his having access to depictions of, let alone
purely verbal references to, nudity even when the depictions
or references are not pornographic.
The nudity condition was the only one discussed in any
depth at the sentencing hearing. The presentence report had
recommended the following wording: “You shall neither
possess nor have under your control any material, legal or
illegal, that contains nudity or that depicts or alludes to sexual
14 Nos. 13-1633, -1640, -1767
activity or depicts sexually arousing material” (emphasis add-
ed). Siegel’s lawyer objected that this would forbid Siegel to
read the Bible. He was right; the Bible contains allusions to
sexual activity. The judge responded by changing the clause
we’ve italicized to “text narratives concerning the sexual
abuse of children, or internet chats exchanging ideas and ex-
periences regarding the sexual abuse of children.” He ex-
plained that by doing this he was providing “a laundry list
of things that are specifically intended to address what
[Siegel] did here, what he could reasonably be expected to
consider doing in the future, and also the things based on
this record that would suggest the things that might act as
triggers for him.”
The judge said enough to justify a nudity condition of
some sort. But of what sort exactly? What about the Bible? It
“contains nudity,” unless “contains” only means “provides a
visual depiction of”—but that would be a forced interpreta-
tion. The judge said that his revised nudity condition includ-
ed “an element of common sense”; “I’ve been a judge for
more than 30 years. To my knowledge, no one has ever been
brought in front of this court … because they went to an art
museum or read the Bible.” No doubt. But that seems a ref-
erence to the exercise of discretion by probation officers, ra-
ther than a qualification of the “contains nudity” condition
itself.
So that key condition remains a muddle, and for the ad-
ditional reason that the judge did not explain why the condi-
tion should not be limited to visual depictions of nudity re-
lated or incidental to sexual urges or activities. Is “nudity”
meant to include innocuous partial nudity, such as a photo-
graph, in no respect prurient, of an adult wearing a bathing
Nos. 13-1633, -1640, -1767 15
suit? So not only is “contains” vague, but “nudity” is over-
broad, see United States v. Simons, 614 F.3d 475, 483–84 (8th
Cir. 2010), and we suggest therefore that “contains nudity”
be rephrased as “material that depicts nudity in a prurient or
sexually arousing manner.”
The judge failed to comply with 18 U.S.C. § 3553(a) by
not giving reasons for the other conditions that he was im-
posing, but the error was harmless with regard to a number
of them. An example is the prohibition against Siegel’s
“transmit[ting] any sexually arousing material, including
child pornography, via the Internet.” The consistency of that
condition with the statutory sentencing factors is plain, giv-
en the nature of Siegel’s crime, though we wonder how such
a prohibition will be enforced. The probation service is as we
said understaffed, and in some districts relies heavily on the
supervisee’s periodically phoning his probation officer to tell
him that he’s complying with all conditions.
Several components of five of the nine conditions are
troubling besides the nudity condition. The first is a prohibi-
tion of purchase, possession, or use of any “mood altering
substances,” a term neither defined nor self-evident. It could
include coffee, cigarettes, sugar, and chocolate, among many
others; yet these substances are not causal factors of recidi-
vist behavior. At oral argument the government’s lawyer
suggested a much better definition, which would exclude
coffee, cigarettes, sugar, and chocolate: “psychoactive sub-
stances that impair physical or mental functioning,” includ-
ing street, synthetic, or designer drugs, such as “bath salts”
(a synthetic amphetamine-like product) and “potpourri” (al-
so called “spice,” a synthetic form of marijuana) some ver-
16 Nos. 13-1633, -1640, -1767
sions of which, when Siegel was sentenced, had only recent-
ly been designated controlled substances.
Conditions eight and nine require the defendant to “par-
ticipate in a sex offender program as deemed necessary by
the probation office,” “submit to physiological testing, in-
cluding polygraph testing, which may be part of a sex of-
fender treatment program as directed by the … [probation]
office,” and participate in “psychiatric services and/or a pro-
gram of mental health counseling/treatment as directed by
the probation officer and … take any and all prescribed med-
ications as directed by the probation officer.” We have
grouped these conditions because of their repetitiousness
and lack of definition. If physiological testing may be rather
than must be part of the required sex-offender treatment
program, implying that it is not a mandatory part, why is it a
free-standing requirement, imposed whether or not it is part
of a sex-offender treatment program? What other function
could it serve? Is it just a euphemism for giving the prisoner
lie-detector tests?
And why are both psychiatric and mental health treat-
ment, which differ mainly in that psychiatrists can prescribe
drugs while psychologists generally cannot (and not all
mental health counselors are even psychologists), specified
as conditions of supervised release? It is unclear whether
these are intended to be components of the sex-offender
treatment program or separate from it, and if the latter why
the defendant is to be subjected to separate psychiatric atten-
tion, since a sex-offender treatment program will have a sig-
nificant psychiatric component. It’s true that Siegel has been
diagnosed with other psychological disorders besides pedo-
philia. But the judge did not indicate whether he believes
Nos. 13-1633, -1640, -1767 17
that those disorders would be likely to cause Siegel to en-
gage in criminal activity when he is released from prison
many years from now unless he receives treatment then and
perhaps for the rest of his life.
And why is a probation officer, rather than a physician or
nurse or pharmacist, entrusted with directing which medica-
tions the defendant must take? And what is the force of “any
and all” prescribed medications? And how can a judge have
known on March 20, 2013, when the sentence was imposed,
or the probation service, on January 31, 2013, when the
presentence report was submitted, what if any psychiatric
services the defendant would require when he was eventual-
ly released? By that time the medical and criminological un-
derstanding of recidivism and methods of minimizing it
may have changed completely. But that is not a criticism that
can be made of the sentencing judge. It is a flaw in the Sen-
tencing Reform Act, which makes the conditions of super-
vised release a part of the sentence. One would think that
they would be imposed after a court hearing held on the eve
of the defendant’s release from prison. The hearing would
also serve as a reminder to the defendant that he is still un-
der judicial supervision, even though his sentence was im-
posed a long time ago.
The last three conditions of Siegel’s supervised release
that trouble us—substance-abuse treatment; installation of
filtering software on any computer he uses, in order to block
his access to sexually oriented websites; and the sex-offender
treatment program, including physiological testing, just
mentioned—trouble us for one reason (except that it is a fur-
ther rather than the sole reason in the case of the sex-
offender treatment condition): understood literally they re-
18 Nos. 13-1633, -1640, -1767
quire the defendant to bear the expense of complying with
those conditions, without qualification. Nothing is said
about what happens if he can’t pay the entire cost. Will his
supervised release be revoked because he won’t be comply-
ing with the conditions in question in their entirety? Or will
the government pay for them? It must mean the latter, see 18
U.S.C. § 3672; United States v. Smith, No. 12-CR-30087, 2013
WL 1150909, at *5 (C.D. Ill. Mar. 19, 2013), as the judge in our
other case (Norfleet) made clear in stating that “the require-
ment of payment is done by Probation taking into account
the defendant’s ability to pay.” Revoking a defendant’s su-
pervised release and recommitting him to prison for mere
inability to pay would constitute imprisonment for debt. The
judge in Siegel’s case must make this explicit on remand.
A number of the conditions that we’ve questioned are
not challenged in Siegel’s appeal; indeed, the defendant’s
lawyer had told the judge he had “no objection” to most of
them. He may even have proposed them in exchange for a
lighter sentence (though, given the length of Siegel’s sen-
tence, this is unlikely). But remember that the judge is not
required to accept the parties’ agreed-upon sentencing rec-
ommendations, or even permitted to do so without first
complying with his independent duty to determine the rea-
sonableness of every part of a sentence, including the condi-
tions of supervised release. United States v. Aguilar-Ibarra, su-
pra, 740 F.3d at 591.
We move on to Norfleet, convicted of possession of, with
intent to distribute, more than 28 grams of crack cocaine,
and sentenced to the statutory minimum of 10 years in pris-
on. 21 U.S.C. §§ 841(b)(1)(B), 851. His conditions of super-
vised release are to remain in force for 8 years after his re-
Nos. 13-1633, -1640, -1767 19
lease, the statutory minimum for his offense (see 21 U.S.C.
§ 842(b)(1)(B)), which means that the actual length of his sen-
tence is 18 years. With time served and maximum good-time
credits he’ll be 39 when released from prison. The conditions
were as recommended in the presentence report, with a few
changes, of which the most important changed “You shall
refrain from any use of alcohol” to “You shall refrain from
the excessive use of alcohol,” and changed “[You] shall not
purchase [etc.] … any … mood altering substance” to “[You]
shall not purchase [etc.] … any … mood altering substance
(excluding coffee, tea, and soda).”
Excluding coffee, tea, and soda from the class of mood-
altering substances—exclusions missing from Siegel’s paral-
lel condition of supervised release—is certainly a step in the
right direction. But not a big enough one. Will Norfleet upon
his release from prison be permitted to put two teaspoonfuls
of sugar in his cup of coffee? A number of familiar foods, in-
cluding blueberries, are called “mood foods” because they
can have significant effects on the eater’s mood and maybe
even on a psychiatric condition that he might have such as
depression. See, e.g., Markham Heid, “Eat This, Feel That:
The Mind-Altering Effects of Everyday Foods,” Prevention,
Aug. 2012, www.prevention.com/food/food-remedies/foods-
alter-your-mood. Are such foods to be forbidden to Norfleet
when he emerges from prison? Obviously not, but as in
Siegel’s case the formulation offered by the government’s
lawyer (the same lawyer in both cases), which we quoted
earlier, is superior and it or an equivalent should be substi-
tuted for “mood altering substance.”
The judge did explain that “the reason I’m including the
[prohibition against use of] mood-altering substance[s] is be-
20 Nos. 13-1633, -1640, -1767
cause of the fact that there are many drugs that are not yet
scheduled [the reference is to the schedule of controlled sub-
stances, see 21 U.S.C. § 812, that is, drugs such as cocaine
that are tightly regulated, and often illegal other than in very
rare circumstances], and there are available items, such as
bath salts and potpourri, which could affect your ability to
control yourself.” But the phrase she used—“mood-altering
substance”—is not limited to the type of drug she listed:
drugs that should be deemed controlled substances but
hadn’t yet been when he was sentenced.
Another oddity concerning the “mood-altering sub-
stance” condition is that while purporting to forbid the use
of any such substance (unless prescribed by a doctor or other
medical officer) except coffee, tea, and soda, it forbids only
“excessive” use of alcohol, and thus carves a major exception
to the prohibition. And a vague one. For what is excessive
drinking? Upon his release from prison Norfleet probably
will be handed a brochure called an “orientation to supervi-
sion” that will include a definition of the term. We can’t find
the brochure used in the Central District of Illinois, but it
seems that other districts (and so probably the Central Dis-
trict as well) define it as “any use of alcohol that adversely
affects your employment, your relationships, or your ability
to comply with the conditions of supervision. This includes
the use of alcohol which results in the violation of any local,
state, or federal laws including disorderly intoxication
and/or driving under the influence.” E.g., U.S. Probation Of-
fice, “Orientation to Supervision: Western District of Mis-
souri,” p. 13, www.mow.uscourts.gov/probation_pretrial/pr
obation_forms/orientation_complete.pdf.
Nos. 13-1633, -1640, -1767 21
The second part of the definition—use of alcohol that re-
sults in an actual violation of law—is clear, but the first
(“adversely affects”) is not. The Centers for Disease Control
and Prevention define “excessive alcohol use” as alcohol use
that “includes binge drinking, heavy drinking, any alcohol
use by people under the age 21 minimum legal drinking age,
and any alcohol use by pregnant women,” and defines
“heavy drinking” by men as “consuming 15 drinks or more
per week.” Centers for Disease Control, “Alcohol and Public
Health: Frequently Asked Questions,” www.cdc.gov/
alcohol/faqs.htm. A defendant can find tables for calculating
the percentage of alcohol in his blood from his weight and
sex and from the number and size and alcohol content and
recency of his drinks. See, e.g., B.R.A.D. (Be Responsible
About Drinking), “Estimated BAC Information,” www.
brad21.org/bac_charts.html; Blood Alcohol Calculator, “BAC
Charts,” http://bloodalcoholcalculator.org/bac-charts/. These
websites are not authoritative, but may be useful supple-
ments to the CDC’s definition of excessive alcohol use,
which in turn is superior to the definition in the “orientation
to supervision” brochure.
A further oddity is that Norfleet is ordered to undergo a
program for treatment of substance abuse that includes “not
more than six tests per month to determine whether you
have used … alcohol.” Yet he’s allowed to consume alcohol.
Presumably the purpose of the tests is to see how much he’s
consumed, but the statement of conditions of supervised re-
lease doesn’t say that.
Another question is why substance-abuse treatment is
deferred until the defendant is released from prison. The
program cannot have an instantaneous effect. Days, weeks,
22 Nos. 13-1633, -1640, -1767
probably months will elapse after the defendant begins the
program (upon his release) before its effects are felt. During
that period the program may have little or no effect on the
likelihood of his committing crimes. But this problem is not
within the power of either the probation service or the courts
to solve. The Bureau of Prisons does offer a “Residential
Drug Abuse Program,” but neither the probation service nor
the judge can require that a prisoner be allowed to enroll in
it. The judge did recommend that Norfleet “serve [his prison
sentence] in a facility that will allow [him] to participate in
the residential drug abuse program,” but that was the most
she could do.
Norfleet complains about the judge’s ordering him to
participate in a “cognitive behavioral therapy” program—“a
common type of mental health counseling,” Mayo Clinic,
“Cognitive Behavioral Therapy,” www.mayoclinic.org/tests-
procedures/cognitive-behavioral-therapy/basics/definition/
prc-20013594—as a condition of his supervised release. That
was a proper condition to impose on him, given his history
of substance abuse. Cognitive behavioral therapy isn’t just
for the mentally ill; it “can be an effective tool to help anyone
learn how to better manage stressful life situations.” Id.
There is evidence that it can also reduce recidivism. See, e.g.,
David B. Wilson, Leana Allen Bouffard & Doris L. MacKen-
zie, “A Quantitative Review of Structured, Group-Oriented,
Cognitive-Behavioral Programs for Offenders,” 32 Criminal
Justice & Behavior 172, 198–200 (2005); Nana A. Landenberger
& Mark W. Lipsey, “The Positive Effects of Cognitive–
Behavioral Programs for Offenders: A Meta-Analysis of Fac-
tors Associated with Effective Treatment,” 1 J. Experimental
Criminology 451, 470–71 (2005). The judge should have made
clear, however, that Norfleet’s participation in the program
Nos. 13-1633, -1640, -1767 23
would not necessarily have to continue for the full eight
years of his supervised release. It should continue only as
long as the probation service considers it to be helping to
keep Norfleet out of trouble.
In summary, these cases must be remanded for reconsid-
eration of the conditions of supervised release imposed on
these defendants that we have raised questions about. And
for the future we recommend the following “best practices”
to sentencing judges asked to impose (or minded on their
own to impose) conditions of supervised release:
1. Require the probation service to communicate its rec-
ommendations for conditions of supervised release to de-
fense counsel at least two weeks before the sentencing hear-
ing.
2. Make an independent judgment (as required in fact by
18 U.S.C. § 3553(a)) of the appropriateness of the recom-
mended conditions—independent, that is, of agreement be-
tween prosecutor and defense counsel (and defendant) on
the conditions, or of the failure of defense counsel to object
to the conditions recommended by the probation service.
3. Determine appropriateness with reference to the par-
ticular conduct, character, etc., of the defendant, rather than
on the basis of loose generalizations about the defendant’s
crime and criminal history, and where possible with refer-
ence also to the relevant criminological literature.
4. Make sure that each condition imposed is simply
worded, bearing in mind that, with rare exceptions, neither
the defendant nor the probation officer is a lawyer and that
when released from prison the defendant will not have a
lawyer to consult.
24 Nos. 13-1633, -1640, -1767
5. Require that on the eve of his release from prison, the
defendant attend a brief hearing before the sentencing judge
(or his successor) in order to be reminded of the conditions
of supervised release. That would also be a proper occasion
for the judge to consider whether to modify one or more of
the conditions in light of any changed circumstances
brought about by the defendant’s experiences in prison.
Before ending this long opinion, we need to discuss an
issue raised in Siegel’s appeal that is unrelated to supervised
release. His wife, the collaborator in his crimes, was sen-
tenced to 24 years in prison—a sentence six years shorter
than his. He says she was equally guilty and he should
therefore receive no greater sentence. That is a non sequitur.
Suppose the two were equally guilty. That could just mean
that she should have been sentenced to 30 years. If the judge
by mistake gave her too short a sentence, maybe believing
that when a husband and wife commit a crime together the
husband is always the instigator, that’s no reason for us to
order the judge to make the same mistake with regard to
Siegel by reducing his sentence to 24 years. Kinnard v. United
States, 313 F.3d 933, 934–36 (6th Cir. 2002); United States v.
Contreras, 108 F.3d 1255, 1272 (10th Cir. 1997). Rather it
would have been a reason for the government to appeal her
sentence—which it didn’t do.
It’s not as if the judge had said that he was giving Siegel
a longer sentence because he’s a man. He said that Siegel had
done a bad thing that his wife hadn’t done: he had compli-
cated the government’s investigation by destroying his com-
puter’s hard drive, which doubtless contained child pornog-
raphy. He destroyed it so completely that the government
was unable to recover any of the data in it. Was six years too
Nos. 13-1633, -1640, -1767 25
great a sentence increment for such a destruction of evi-
dence? But that isn’t the question. Six years may have been
too much, but not because the judge had made a mistake in
giving Siegel’s wife only a 24-year sentence. One doesn’t
cure an error by compounding it.
So the prison sentences in both our cases stand, but the
cases must be remanded for reconsideration of the condi-
tions of supervised release that we have determined to be
inappropriate, inadequately defined, or imposed without the
sentencing judge’s having justified them by reference to the
sentencing factors in 18 U.S.C. § 3553(a).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.