Courts and parole boards often impose “special” conditions of supervision, in addition to the standard conditions. While criminal laws or regulations may offer a menu of special conditions from which to choose, some courts and boards will create and impose imaginative and, often, oppressive conditions, such as:
- A prohibition on political activity (e.g., an elected official convicted of attempting to extort a bribe may be prohibited from seeking or serving in elected public office during probation)
- A ban on internet use
- A ban on certain types of employment (e.g., a prohibition against self-employment)
- A limit on procreation
If you or a loved one is facing this type of “special” condition of release, discuss the following options with your criminal defense lawyer:
Seek clarification of unreasonable conditions
If the court announces a condition that seems questionable, impractical in compliance or unreasonable, your criminal defense lawyer may seek clarification and narrowing of the condition. For example:
- Does a prohibition on the use of alcohol mean all alcohol or just excessive consumption of alcohol?
- Does the ban against associating with convicted felons apply to immediate family members?
When the “special” conditions have some validity but seem overbroad, your criminal defense lawyer may propose alternatives. For example, judges impose restrictions on computer and internet usage for defendants convicted of identity theft or child abuse or pornography. However, because the use of a computer is nearly indispensable to many jobs, to socializing, and to just being an informed member of society, a smart criminal defense lawyer will investigate and propose filtering software or programs to monitor his client’s computer usage.
Attacking untenable conditions
If an acceptable compromise on the conditions of release cannot be reached, your criminal defense lawyer should consider three lines of attack on the conditions.
- Does the criminal law in the jurisdiction authorize this condition? Standard and suggested conditions will appear in a statute, but courts often are free to impose other reasonable conditions, which the probation department generally suggests. The judge will know that non-standard conditions are more susceptible to attack.
- Is the condition reasonably related to the situation? Many jurisdictions limit conditions to those reasonably related to the circumstances of the defendant’s crime; the defendant’s personal characteristics; and the need for rehabilitation, deterrence and protection of the public. Such conditions must restrict the defendant’s freedom no more than necessary to achieve their goals. Some jurisdictions follow the so-called “California Rule,” which provides that a condition of probation does not serve the goal of probation and is invalid if it:
- Has no relationship to the crime of which the defender was convicted; and
- Relates to conduct which is not itself criminal; and
- Requires or forbids conduct which is not reasonably related to future criminality.
For example, people certainly commit crimes while intoxicated, but a prohibition against any alcohol use might be unreasonable if the defendant does not have a history of alcoholism and did not commit the crime while drunk.
- Does the proposed condition violate the constitution? Does the condition restrict the criminal defendant’s First Amendment speech or association rights, subject him to unreasonable searches, or force him to incriminate himself? The Due Process clause requires fair notice as to what behavior the condition prohibits. Thus, a blanket prohibition on possessing “pornography” is unconstitutionally vague because a probationer could not reasonably understand it; a prohibition against associating with “disreputable characters” also is too vague to enforce, as is a requirement that the criminal defendant cooperate in the investigation of drug trafficking. Constitutional challenges rarely succeed standing alone, but the idea that courts should avoid constitutional difficulties may persuade the sentencing judge to delete a troublesome condition or to make it less restrictive.