Judge orders: no "unprotected sex activities without approval of the Probation Office" while on probation

|The Volokh Conspiracy |

Yesterday, the Eighth Circuit federal court of appeals overturned an unusual order by a trial judge: During defendant's probation, the judge ordered, the defendant may not have "any unprotected sex activities without approval of the Probation Office." The trial judge justified the order as an attempt to prevent pregnancy:

The district court observed that Harris had fathered ten children out of wedlock with seven different women and declared that Harris's conduct was "creating a very serious social problem" that was "more serious than a lot of the things that we do deal with on conditions of supervised release." During the hearing, the court again raised a "social problem of apparently a great deal of unprotected sex."

The condition had nothing specific to do with the office of conviction, which is possession of a gun by a convicted felon. (The condition would be applied when the defendant finishes his 15-year prison term, but it is being challenged now, since it's part of the sentence.) The court of appeals concluded that the condition was therefore outside the judge's statutory authority, and didn't have to decide whether the condition was also unconstitutional (probationers retain some of their constitutional rights, but in a considerably reduced form):

Conditions of supervised release are governed by 18 U.S.C. § 3583(d). The court may order a special condition of release if it is consistent with any pertinent policy statement of the Sentencing Commission and satisfies two other criteria. The condition must be "reasonably related to" four factors: the nature and circumstances of the offense and the history and characteristics of the defendant, the need to afford adequate deterrence to criminal conduct, the need to protect the public from future crimes of the defendant, and the need to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. The condition also must "involve[] no greater deprivation of liberty than is reasonably necessary" to afford adequate deterrence, protect the public from future crimes of the defendant, and provide the defendant with needed training and medical care.

The special condition also is not reasonably related to the statutory factors set forth in § 3583(d)…. The court did not find that Harris's sexual activity was related to his unlawful possession of a firearm. Nor did the district court explain how restrictions on Harris's sexual activity would deter Harris from future criminal conduct, protect the public from future crimes by Harris, or assist in Harris's training, medical care, or correctional treatment. For similar reasons, the condition impermissibly involves a greater deprivation of liberty than is reasonably necessary to afford adequate deterrence, protect the public from future crimes, and provide the defendant with needed training, care, or treatment…. [T]he district court sought to address a perceived social problem that does not have the required nexus to factors that guide sentencing in a federal criminal case.

Sounds right to me. Federal judges don't have a free-ranging authority to issue orders (with the force of criminal law behind them) to suppress whatever behavior they think "creat[es] a very serious social problem." And that remains so even when they are targeting people who have been convicted of a crime and are put on probation.

Thanks to How Appealing for the pointer.