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 supervised release, imposed by the district court, and because the 

challenges raise closely related issues concerning such conditions. The issues ramify far beyond these two cases, however, which exemplify common but largely unresolved problems 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 imposed 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 allowed 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 “community supervision,” see, e.g., Leanne Fiftal Alarid, Community-Based Corrections (9th ed. 2013); Edward J. Latessa &

Paula Smith, Corrections in the Community (5th ed. 2011)) entails 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 Sentencing Reform Act itself, see section 3583(d) and U.S.S.G. 

§ 5D1.3(a), conditions of supervised release are discretionary. Some of the discretionary conditions are designated as

“standard,” §§ 5D1.3(c); others are called “special conditions” of supervised release, §§ 5D1.3(d)–(e), and are recommended 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 vocational training, medical care, or other correctional treatment in the most effective manner.” Conditions of supervised 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 standards there is no attempt to give weights to the different factors, 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 explains 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 condition: (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 purposes of sentencing; and (3) is consistent with the policy 

statements of the Sentencing Commission.” Fiona Doherty, 

“Indeterminate Sentencing Returns: The Invention of Supervised 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 discretionary 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 minor, 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 recommendations 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 imposed at sentencing, do not become operational until the defendant 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 accurate. Conditions that may seem sensible at sentencing may 

not be sensible many years later, when the defendant is finally 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 sentences, modification becomes the responsibility of the sentencing 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 supervised release, though some of the conditions of supervised release are intended to help the released prisoner adjust to life on the outside even if there is no worry that without them he would be likely to commit crimes; it may be apparent 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 Reduce 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 Recidivism Rates of Felony Offenders: a Focus on Drug Offenders,” 40 Criminology 329 (2002); R. Karl Hanson & Monique 

T. Bussière, “Predicting Relapse: A Meta-Analysis of Sexual 

Offender Recidivism Studies,” 66 J. Consulting & Clinical Psychology 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=SnGDKgdTi4; 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 sentencing. 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 distinct 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, “Rehabilitating Criminal Justice Policy and Practice,” 16 Psychology, 

Public Policy & Law 39 (2010); Paula Smith, Paul Gendreau & 

Kristin Swartz, “Validating the Principles of Effective Intervention: A Systematic Review of the Contributions of MetaAnalysis in the Field of Corrections.” 4 Victims & Offenders

148 (2009), there is controversy over the efficacy of some typical conditions of supervised release.

For example, a condition commonly imposed on a sex offender is forbidding him access to pornography. Suppose 

he’s a rapist, but only of adult women; he has no sexual interest 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 pornography 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 Availability 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 reduced prison term—and the prosecutor may accept. And

when the adversaries thus agree, the sentencing judge, habituated 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. United States, 131 S. Ct. 2685, 2692 (2011) (plurality); United States 

v. Aguilar-Ibarra, 740 F.3d 587, 591 (11th Cir. 2014) (per curiam); 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., “Exploring the Black Box of Community Supervision,” 47 J. Offender 

Rehabilitation 248 (2008)—a serious concern given the understaffing of the probation service, discussed next.

By default, most judges, in deciding what conditions of 

supervised release to impose, rely heavily on the recommendations 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 comprehensive 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 supplement to it) will, under the heading “Sentencing Recommendation,” suggest conditions of supervised release, with 

usually a brief reason for each one. The brevity of the reasons given may reflect the fact that the probation service, 

though responsible and knowledgeable, is understaffed. The 

number of persons under supervision either pre- or posttrial 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 other 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 Outcomes in an Evidence-Based Practice Setting: Reduced Caseload Size and Intensive Supervision Effectiveness,” 49 J. Offender Rehabilitation 233 (2010).

Judges are limited in their ability to look behind the recommendations of the probation officers. The academic studies of recidivism are unfamiliar to most judges and often difficult 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 prisoner’s release.

So it is both inevitable and proper that judges give 

weight to the probation service’s recommendations regarding 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 scientific 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 (consisting primarily of six weeks at the Federal Probation and 

Pretrial Services Training Academy, though there is followon 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 probation officer’s recommendations of conditions of supervised. 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 defense 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 imposing without giving reasons for why he imposed those particular 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 presentence report. He will not explain how the recommendation 
12 Nos. 13-1633, -1640, -1767

comports with the sentencing factors, which is a determination for the judge to make, not the probation service.

One reason for this judicial insouciance is that the sentencing 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 defendant. 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 sentence, since the added cost of the added length of the sentence will not be experienced for many years. Defendants are 

more likely to be concerned with whether they can selfsurrender 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 recommended by the probation service.

Against this background we turn to the conditions of supervised release imposed on our two defendants. We begin 

with Siegel, convicted along with his wife of ugly sexual offenses 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 behavior 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 justify any of the conditions by reference to the statutory sentencing 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 nudity 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 pornography. The argument supported a prohibition against

Siegel’s having access to any pornography, but not necessarily 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 added). 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 experiences regarding the sexual abuse of children.” He explained 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 interpretation. The judge said that his revised nudity condition included “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 reference to the exercise of discretion by probation officers, rather than a qualification of the “contains nudity” condition 

itself.

So that key condition remains a muddle, and for the additional reason that the judge did not explain why the condition should not be limited to visual depictions of nudity related or incidental to sexual urges or activities. Is “nudity” 

meant to include innocuous partial nudity, such as a photograph, 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 overbroad, 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 imposing, 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, given 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 prohibition 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 recidivist behavior. At oral argument the government’s lawyer 

suggested a much better definition, which would exclude

coffee, cigarettes, sugar, and chocolate: “psychoactive substances that impair physical or mental functioning,” including street, synthetic, or designer drugs, such as “bath salts” 

(a synthetic amphetamine-like product) and “potpourri” (also called “spice,” a synthetic form of marijuana) some ver-
16 Nos. 13-1633, -1640, -1767

sions of which, when Siegel was sentenced, had only recently been designated controlled substances.

Conditions eight and nine require the defendant to “participate in a sex offender program as deemed necessary by 

the probation office,” “submit to physiological testing, including polygraph testing, which may be part of a sex offender treatment program as directed by the ... [probation] 

office,” and participate in “psychiatric services and/or a program of mental health counseling/treatment as directed by 

the probation officer and ... take any and all prescribed medications 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 treatment, 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 attention, since a sex-offender treatment program will have a significant psychiatric component. It’s true that Siegel has been 

diagnosed with other psychological disorders besides pedophilia. 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 engage 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 medications 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 eventually released? By that time the medical and criminological understanding 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 Sentencing Reform Act, which makes the conditions of supervised 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 under judicial supervision, even though his sentence was imposed 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 further rather than the sole reason in the case of the sexoffender 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 complying 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 requirement of payment is done by Probation taking into account 

the defendant’s ability to pay.” Revoking a defendant’s supervised 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 sentence, this is unlikely). But remember that the judge is not 

required to accept the parties’ agreed-upon sentencing recommendations, or even permitted to do so without first 

complying with his independent duty to determine the reasonableness of every part of a sentence, including the conditions of supervised release. United States v. Aguilar-Ibarra, supra, 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 prison. 21 U.S.C. §§ 841(b)(1)(B), 851. His conditions of supervised 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 sentence 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 moodaltering substances—exclusions missing from Siegel’s parallel 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, including 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/foodsalter-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 substituted 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 substances, 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 substance” 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 supervision” 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 District 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 Office, “Orientation to Supervision: Western District of Missouri,” 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 results 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 supplements 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 release 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/testsprocedures/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. MacKenzie, “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 Factors 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 reconsideration 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 recommendations for conditions of supervised release to defense counsel at least two weeks before the sentencing hearing.

2. Make an independent judgment (as required in fact by 

18 U.S.C. § 3553(a)) of the appropriateness of the recommended conditions—independent, that is, of agreement between 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 particular 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 reference 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 sentenced 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 complicated the government’s investigation by destroying his computer’s hard drive, which doubtless contained child pornography. 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 evidence? 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 conditions 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.