Libby: Life on Supervised Release

As Judge Walton decides whether his order placing Scooter Libby on supervised release can stand in face of the commutation, I thought a primer on supervised release and on the specific conditions Judge Walton imposed on Libby (court order here, pdf) might be useful.

[Cross-posted at Firedoglake.]


The Scooter Libby question of the day is whether the Court can make Libby serve two years on supervised release as President Bush directed in his Executive Clemency Order, now that his prison sentence has been commuted. (For background, see Sentencing Law and Policy, Scotus Blog, Christy and TalkLeft.)

As we wait for Judge Walton's decision on whether supervised release only can be imposed on defendants who have completed a prison sentence, let's take a look at what supervised release is all about.

Supervised release made its debut in 1987 with the enactment of the Federal Sentencing Guidelines. It replaced federal parole for all crimes committed after November 1, 1987.

This was a big deal because under the parole system, people got a relatively big chunk of jail time cut from their sentence. Your sentence wasn't over, parole just allowed you to serve the last 1/3 or 1/2 (or whatever) at home.

When the sentencing guidelines came in and parole was abolished, it brought a new way of calculating the amount of time you spend in prison. Under a guideline sentence, you serve it all except for good time which is limited to 54 days a year or roughly 85% of your sentence. And you don't get any good time until you've served a full year.

Instead of being released from prison to serve the remainder of your sentence on parole, now you get released to begin a term of supervised release.

Unlike parole, a term of supervised release does not replace a portion of the sentence of imprisonment, but rather is an order of supervision in addition to any term of imprisonment imposed by the court.
It's like a second sentence, one to supervision, which begins after your jail sentence ends. That's why the law says supervised release follows a jail sentence, and why Judge Walton is concerned that if Libby doesn't go to jail in the first instance, he can't be put on supervised release when he gets out. (Judge Walton's Order directing briefs on the issue is here.)

Let's assume for the sake of argument that the Judge finds Libby can be put on supervised release even though his prison sentence was commuted. What does it mean for him? How does it affect his life?

It means he's under the supervision of a probation officer and he has to follow rules and conditions set by the officer and the court. If hes charged with violating these rules, he gets a hearing. If the Court finds at the hearing that he was in violation of the conditions, he is subject to having his supervised release revoked and being sent to jail. Or, the Judge could continue his supervised release but impose additional conditions, like home detention and electronic monitoring.

(Sometimes the Judge can modify and enlarge conditions of supervised release even if no violation occurs. There does need to be changed circumstances, and the enlarged conditions could include home detention or spending nights or weekends in jail.)

So what are these conditions? There are standard conditions of supervised release that apply to everyone. There also may be conditions individually tailored to a particular defendant. The Judge announces the conditions on the day of sentencing and they are set out in writing shortly thereafter in an Order called "Judgment in a Criminal Case."

Any special conditions of supervised release must have some relationship to the crime the person was convicted of, his history and character or the need to deter crime or protect the offender or the public. The conditions must entail "no greater deprivation of liberty than is reasonably necessary" to provide adequate deterrence, to protect the public, and to meet the defendant's vocational and medical needs."

For example, in an embezzlement case, it's not unusual to see a condition that the person can't open new bank accounts or get a credit card without approval of their probaton officer. In a child porn case, a condition might be that the person can't use the internet.

Libby's terms of supervised release were set and announced by the Judge on the day he was sentenced. The Order is here (pdf). In addition to the general terms applicable to everyone, the Judge added two special conditions:

  • He shall maintain full-time employment, the circumstances of which shall be in the discretion of the Probation Department, subject to the court's review.
  • He shall perform 400 hours of community service, "as approved and directed by the Probation Department."
The standard conditions Libby will have to abide by include these (again, the full list is here (pdf):
  • the defendant shall not leave the judicial district without the permission of the court or probation officer;
  • the defendant shall report to the probation officer and shall submit a truthful and complete written report within the first five days of each month;
  • the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer;
  • the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician;
  • the defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a felony, unless granted permission to do so by the probation officer;
  • the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere
  • the defendant shall provide access to any requested financial information.

As you can see, supervised release is no walk in the park. It's a lot better than jail, but there are significant restrictions on your freedom.

What about the 400 hours of community service the Judge imposed? While President Bush said all of the Judge's sentencing conditions should remain except the jail sentence, Judge Walton's Order make it clear that the community service is a condition of his supervised release. So, if the supervised release goes, the community service may go as well.

That would be too bad as I was having a lot of fun imagining ways in which Libby could perform his service. Let's pretend for a minute that the requirement stands. While Libby would be allowed to suggest his preferred form of community service, the final decision is up to the Probation Department.

My suggestion would be that Libby volunteer at Legal Aid, the Public Defender's Office or a local jail. Let him learn first hand how regular folks are treated. Persons who don't have a direct pipeline to the President.

What would your's be?

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  • Display: Sort:
    He'll be off the cocktail weenie circuit (5.00 / 1) (#3)
    by Ellie on Thu Jul 05, 2007 at 12:33:15 PM EST
    This ought to get the unglee club wailing. From FDL (link in parent post), on the list of standard conditions:

    ... the defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a felony, unless granted permission to do so by the probation officer;

    My preference for Libby Community Service (5.00 / 2) (#5)
    by Electa on Thu Jul 05, 2007 at 05:50:31 PM EST
    Work in a public housing development in SE DC cleaning stairwell walls, floors and graffetti off the bldings.  Afterall those are the jobs the women transitioning from welfare-to-work have to perform as part of their work requirement.  Oh, reality check, there's a law for the rich and a law for the poor in this United States of America.  

    I was amazed to learn that the children in my community have been following the Scooter story.  Probably because 85% have a parent(s)  incarcerated and grandmothers are having this discussion around the kitchen table.  Anyhew the kids are rapping a new song as they ride their scooters...Scooter Libby committed a crime, Bush commuted his sentence so he wouldn't drop a dime on Cheney's behind....but my Daddy is doing his time, doing his time, doing his time.  Who's the best man?  who's the greatest man?  Scooter Libby did the crime, Bush gave him freedom not to drop a dime.  Out of the mouths of babes.

    THis is Great (none / 0) (#6)
    by squeaky on Thu Jul 05, 2007 at 06:10:26 PM EST
    Scooter Libby committed a crime, Bush commuted his sentence so he wouldn't drop a dime on Cheney's behind....but my Daddy is doing his time, doing his time, doing his time.  Who's the best man?  who's the greatest man?  Scooter Libby did the crime, Bush gave him freedom not to drop a dime.

    Question- (none / 0) (#1)
    by jrod on Thu Jul 05, 2007 at 11:43:04 AM EST
    I am no attorney, but could the prosecution offer Libby immunity unilaterally, and bring him back before the Grand Jury to testify against Rove, Bush and Cheney. Since the commutation was granted to Libby to maintain his right not to incriminate himself (and also the others) could this be a way to do an end around on Bush's ploy.

    re conditions (none / 0) (#2)
    by zaitztheunconvicted on Thu Jul 05, 2007 at 12:14:53 PM EST

    one of the conditions is that Libby answer truthfully the questions of the probation officer.

    Just how is that going to be enforced?  If the officer thinks Libby has not told the truth to him, does he get to tell Libby to go "back" to prison?

    Answer questions truthfully ... (none / 0) (#4)
    by Peter G on Thu Jul 05, 2007 at 03:33:00 PM EST
    The probation officer's questions to the convicted person have to be germane to the USPO's job, which is supervision and monitoring of compliance with the conditions imposed by the judge.  A person on supervised release maintains the right to invoke the Fifth Amendment and remain silent, as to potential incrimination for any offense for which s/he has not already been prosecuted to finality (or pardoned or immunized).  If the probation officer thinks that the supervisee has violated any condition, including the requirement to answer questions truthfully, s/he ordinarily makes a written report to the judge, who then decides if the potential violation is serious enough to warrant a hearing.  The USPO cannot impose any punishment unilaterally.  On the other hand, a USPO is a law enforcement officer with the power of arrest.  If a supervisee commits a crime in the officer's presence, such as a threat, s/he can arrest without a warrant.  Otherwise, the USPO can and must apply to the judge for an arrest warrant for the alleged violation.

    "answer truthfully" (none / 0) (#7)
    by Alien Abductee on Fri Jul 06, 2007 at 11:13:43 AM EST
    the defendant shall answer truthfully all inquiries by the probation officer

    Maybe Patrick Fitzgerald could provide the probation officer with a list of interesting questions....

    how about... (none / 0) (#8)
    by LizDexic on Mon Jul 09, 2007 at 10:27:11 PM EST
    ...making Libby be the Wilson/Plame butler?

    (if they could stand having him around...)