### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No s

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U NITED S TATES OF A MERICA , Plaintiff

- Appell ee ,

v.

S HAWN M. S IEGEL , Defendant

- Appell ant

.

____________________ Appeal s from t he United States District Court for the Central District of Illinois

. No s

. 1: 11

- C R

- 10093

- MMM , 1:12

- CR

- 10010

- MMM

— Michael M. Mihm , Judge

.

____________________
No. 13

- 1767
U NITED S TATES OF A MERICA , Plaintiff

- Appellee ,

v.

H AYWOOD N ORFLEET , Defendant

- Appellant

.

____________________ Appeal from the United States District Court for the Central District of Illinois.2 No s

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No. 3: 12

- CR

- 30099

- SEM

- BGC

— Sue E . Myerscough , Judge

.

____________________
A RGUED A PRIL 8, 2014

— D ECIDED M AY 2 9 , 2014

____________________

Before P OSNER and T INDER , Circuit Judges and L A W RENCE , District Judge

. *

P OSNER , Circuit Judge

. We have consolidated these two criminal appeals because (with an exception di s cussed at the end of the opinion) both challenge only conditions of supe rvised release , imposed by the district court , and because the challenges raise closely related issues concerning such cond itions

. The issues ramify far beyond these two cases, howe ver, which exemplify common but largely unresolved pro blems in the imposition of such cond i tions as a part of federal crim inal sentencing. Defendant Siegel was convicted of child sexual abuse, and the conditions of supervised release i m posed 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 “con tains 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. T he cond i tions of supervised release imposed on him (for an eight

- year p e riod commencing with his release from prison) i n clude a ban on the use of mood

- altering substances and on excessive use of alcohol, and a requir e ment that he undergo substance

- abuse treatment and cogn i tive behavioral therapy. Thes e are only a

* Of the Southern D istrict of Indiana , sitting by designation

.No s

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few of the discretionary conditions of supervised release i mposed on the two defendants. The Sentencing Reform Act of 1984 replaced parole for federal crimes with supervised release. 18 U.S.C. § 3583. G ranted in the discretion of the federal p a role board after a convicted defendant began serving his sentence, parole a llowed him to be released before the expir a tion of his prison term, on conditions (coterminous with that term) designed to reduce the likel i hood of his committing further crimes

. I n contrast, s upervised release (a form of what is called “co mmunity supervision,” see, e.g., Leanne Fiftal Alarid, Comm unity

- Based Corrections (9th ed. 2013 ) ; Edward J. Latessa & Paula Smith, Corrections in the Community (5th ed. 2011) ) e ntails r e striction s imposed at sentencing that don’t take effect until the defendant is released from prison

. It thus lengthens his sentence, unlike p a role. On supervised release generally, see U.S. Sentencing Commission , Federal Offenders Se n tenced to Supervised Release (J uly 2010), www.ussc.gov/sites/default/ files/pdf/training/annual

- nation al

- training

- seminar/2012/2_ Fed eral _Offenders_Sentenced _to _Supervised_Release.pdf ( visited May 27, 2014, as were the other we b sites cited in this opinion). Apart from a handful of conditions required by the Se ntencing Reform Act itself , see section 3583(d) and U.S.S.G. § 5D1.3(a) , conditions of supervised release are discretio nary

. Some of the discretionary conditions are designated as “stan dard,” §§ 5D1.3 (c) ; others are called “special cond itions” of supervised release, §§ 5D1.3(d)

– (e), and are re commended for particular offenses. The list of cond i tions is not intended to be e x haustive ; s entencing judges can impose conditions of their own devising . All discretionary cond i-4 No s

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tions of supervised release must, however, comply with overall federal sentencing policy as stated in 18 U.S.C. § 3553(a), especially subsec tion (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 offen se; (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 v ocational training, medical care, or other correctional trea tment in the most effective manner .” Conditions of supe rvised 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 stan dards there is no attempt to give weights to the dif ferent fa ctors , 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 e xplains that before imposing condition s of s u pervised releas e (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 co ndition: (1) is ‘reasonably related’ to the bac k ground of the offense, the of fender, or to one of the pu r poses of sentencing (other than punishment); (2) involves no greater deprivation of liberty than ‘reasonably necessary’ for the relevant pu rposes of sentencing; and (3) is consistent with the policy statements of the Sentencing Commission.” Fiona Doherty, “Indeterminate Sentencing Returns: The Invention of Supe rvised R e lease,” 88 N.Y.U. L. Rev. 958, 1012 (2013) (footnotes omitted). Logically, (3) is not appli c able to discretionary conditions already listed in the guidelines, such as su b-No s

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stance

- abuse treatment; but the decision to impose any di scretionary conditions must comply with the se c tion 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 reco m mends particular conditions of supe r vised release, the judge is not bound by the recommendations and cannot be, b e cause he is required to conform all parts of his se n tence to section 3553(a).
As we’ll see when we examine th e particulars of our two cases, there are serious problems with how some district judges are ha n dling discretionary conditions of supervised release at sentencing

. Two of the problems are relatively m inor, and we mention them quickly to get them out of the way. One is the nu m ber

— thirty

— and the other the variety of the listed discretionary co n ditions . See 18 U.S.C. § 356 3(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 reco mmend a tions and i s 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 se n tence

. Because conditions of supervised release , though i mposed at sentencing, do not become oper ational until the d efendant is released , t he judge has to guess what conditions

are likely to make sense when the defendant is r e leased . The longer the sentence , the less likely the guess is to prove acc urate. Co n ditions that may seem sensible at sentencin g may not be sensible many years later, when the defendant is f ina l ly released from priso n. ( D efendant Siegel was se n tenced 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 , e s pecially6 No s

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when, as must be common in cases involving very long se ntences, modification becomes the responsibility of the se ntencing judge’s su c cessor because the sentencing judge has retired in the mea n time

. A mo re serious problem with the current system is that, as we’ll see when we discuss the cond i tions imposed in our two cases , a number of the listed cond i tions, along with a number of conditions that judges modify or invent, are vague. A nother serious problem is the difficulty of predicting recidivism

. Re ducing recidivism is the main purpose of s upervised release , though some of the conditions of supe rvised release are intended to help the released prisoner a djust to life on the outside even if there is no wor ry that wit hout them he would be likely to commit crimes ; it may be a ppa r ent that by the time he’s released from prison he will b e too old or infirm to resume a life of crime

. T here is an extensive social scientific literature on the causes and cures of re cidivism . See, e.g., Francis T. Cullen, Cheryl Lero Jonson & Daniel S. Nagin, “Pri s ons Do Not R educe Recid i vism: The High Cost of Ignoring Science,” Prison Journal , vol. 91, n o. 3 supp. , Sept. 2011, p. 48S; Cassia Spohn & David Holleran, “The Effect of Imp risonment on Recid ivism Rates of Felony Offenders: a Focus on Drug Offen ders,” 40 Crim i nology 329 (2002); R. Karl Hanson & Monique T. Bussière, “Pr e dicting Relapse: A Meta

- Analysis of Sexual Offender Recidivism Studies,” 66 J. Consulting & Clinical Ps ychol ogy 348 (1998)

. And the probation service is well aware of this liter a ture. See , e.g., U.S. Courts, “Risk Assessment Tool Helps Probation Off i cers,” www.youtube.com/ watch?v=S

nGDKgdTi4 ; Laura M. Baber & Mark Mot i vans, “ExtendingNo s

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Our Knowledge About Recidivism of Persons on Federal Supervision,” Federal Probation , vol. 77, no. 2, Sept. 2013, www.uscourts.gov/ uscourts/ FederalCourts/ PPS/ Fed pro b / 20 13

- 09/ knowledge. html

. But there are limita tions to the studies as guides to se ntencing

. 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 di stinct from the number of his arrests or co nvi c tions , 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 re leased. Moreover, while there is evidence that supervised release and other pr ograms of community supervision do reduce recidivism, perhaps substantially, see D.A. Andrews & James Bonta, “Rehabil itating Criminal Justice Policy and Practice,” 16 Psychology, Pu b lic Policy & Law 39 (2010); Paula Smith, Paul Gendreau & Kristin Swartz, “ Validating the Principles of Effective Inte rvention: A Systematic Review of the Contr i butions of Meta

Analysis in the Field of Corrections.” 4 Vi c tims & Offenders 148 (2009), there is controversy over the efficacy of some ty pical conditions of supervised r elease. For example, a condition commonly imposed on a sex o ffender is forbidding him access to pornography . Su p pose he’s a rapist, but only of adult women; he has no sexual i nterest in minors. D enying him access to pornogr a phy 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., “Porno g raphy Use and Sexual Aggression: The Impact of Frequency and Type of Pornography Use on Recidivism8 No s

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Amo ng Sexual Offenders,” 34 A g gressive Behavior 34 1, 34 8 (2008); Michael C. Seto et al., “The Role of Pornography in the Etiology of Sexual Aggression,” 6 A g gression & Violent Behavior 35, 46

– 48 (2001)

— or more likely because pornogr aphy can be a lawful substi tute source of sexual gratification for a sex crime for which the perpetrator if caught is likely to be severely pu n ished , whereas viewing pornography other than child pornography is not crim i nal. Milton Dia mond , Eva Jozifkova & Petr Weiss , “Pornography an d Sex Crimes in the Czech Repu b lic,” 40 Archives of Sexual Behavior 1037, 1040

– 42 (2011); Berl Kutchinsky, “ The Effect of Easy Avail ability of Porno g raphy on the Incidence of Sex Crimes: The Danish Exper i ence,” 29 J. Social Issues 163, 176

– 78 (1973)

. A fur ther problem , though it seems to arise rarely, is that because the conditions of supe r vised release are imposed at sentencing, the conditions recommended to the judge at the sentencing hearing may be a product of negotiation b e tween prosecution and defense . The defendant’s la w yer may offer the prosecution a trade

— more supervised release for a r educed prison term

— and the prosecutor may accept. And when the adversaries thus agree, the sentencing judge, h abituated 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 prosec u tion and the defense agree on a sentence does not excuse the judge from having to determine its conformity to the sentencing fa ctors in 18 U.S.C. § 3553(a). Freeman v. Uni ted States , 131 S. Ct. 2685, 2692 (2011) (plurality); United States v. Aguilar

- Ibarra , 740 F.3d 587, 591 (11th Cir. 2014) (per cur iam); U.S.S.G. § 6B1.2, comme n tary.No s

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And last is a concern that probation officers spend too much time on enforcement (that is, making sure the r e leased prisoner is complying with all the conditions of s u pervised release) relative to supervision, James Bonta et al., “Explo ring the Black Box of Community Supervision,” 47 J. O f fender Rehab ilitation 248 (2008)

— a serious concern given the unde rstaffing of the probation service, discussed next

. By default , most judges , in deciding what conditions of supervised release to impose, rely heavily on the reco mmendations of the federal probation serv ice (formally, the

“ U.S. Probation and Pretrial Services System”), a unit of the Administrative Office of the U.S. Courts. ( For a comprehe nsive su m mary of the duties and functions of the probation service, prominently including supe r vised release, see U.S. Courts, G u i d e t o Jud i c i a r y Po l i cy , vol. 8: P r o bation and Pretrial Services , part E: “ S u p ervision o f Federal Offenders ” (2010)

. )
A probation officer prepares the presentence report that advises the judge on the sentence to give the defe n dant who has been f ound guilty. The report (or sometimes a later su pplement to it) will, under the heading “Sentencing Reco mmendation,” suggest conditions of s u pervised release, with usually a brief reason for each one. The brevity of the re asons given may reflect the fact t hat the probation service, though responsible and knowledgeable, is understaffed. The number of persons under supervision either pre

- or post

trial is approaching 200,000. S ee Matthew G. Rowland, “Too Many Going Back, Not Enough Getting Out? Supervision Vi olators, 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 No s

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Fedprob/2013

- 09/too

- many.html

. Yet there are only about 5,400 probation officers

. Dividing the number of persons under supervis ion by the nu mber of officers yields a r a tio 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 en d ing on September 30, 2010 (we haven’t foun d more recent statistics) , so that the prob a tion service had to write 90,000 presentence reports in addition to performing its ot her d u ties. There is some evidence that reducing caseloads can reduce recidivism , at least if the intensity of supervision is n ot reduced, without increasing the number of revocations of release that are based on technical viol a tions of conditions of release. Sarah Kuck Jalbert et al., “Testing Probation Ou tcomes in an Evidence

- Based Practice Setting: Reduced Cas eload Size and Int ensive Supervision Effectiveness,” 49 J. Offender Rehabilitation 233 (2010). Judges a re limited in their ability to look behind the re commendations of the probation officers. The academic stu dies of recidivism are unfamiliar to most judges and often di ffic ult for a judge who lacks a s o cial

- scientific background to evaluate. And it is doubtful that even exper i enced judges, who have sentenced a great many criminals, acquire from that experience a sophisticated u n ders t anding 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 priso ner’s r e lease

. So it is both inevitable and proper that judges give weight to the probation service’s rec ommendations regar ding what conditions of sup ervised release to impose. ButNo s

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how much weight? N ormally the recomme n dation s in the report are those of a single probation officer, and the scie ntific basis (if there is a scientific basis) of his recommendation is not disclosed in his presentence report. P rob a tion officers receive only limited training in the duties of their job ( co nsisting primarily of six weeks at the Federal Probation and Pretrial Services Trai n ing Academy , though there is follow

on training as well). See U.S. Courts, “Prob a tion and Pretrial Services: Officers and Officer Assi s tants,” www. us co u rts.gov/ federal courts/ probation pretrial services/ officers. as px. Sentencing judges don’t always rely entirely on the pr obation officer’s reco mmendations of conditions of supe rvised. 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 d efense lawyer, and the judge’s intui tions. But o ften 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 impo sing without giving reason s for why he imposed those pa rticular cond itions

. Christine S. Scott

- Hayward , “Shadow Senten c ing: 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 h is sentence ( and remember that the cond i tions of supervised release that he imposes are part of the sentence ) comports with the sentencing factors listed in se c tion 3553(a) , s ee 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 prese ntence report . He will not explain how the recommendation12 No s

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comports with the sentencing factors, which is a determin ation for the judge to make, not the probation se r vice

. One reason for this judicial insouciance is that the se ntencing hearing may be the first occasion on which defense counsel learns of the probation service’s re c ommendation for conditions of s u pervised release. With no advance notice, counsel may have nothing to say about the conditions; nor is he likely to be prodded by his client, b e cause the remoteness of the future time at which the condi tions will take effect may very well make them a matter of indifference to the d efendant. Criminals who court long pr i son 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 se ntence, since the added cost of the added length of the se ntence 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 ser v ing their prison term rather than being taken d i re ctly from the sentencing hearing to prison, and what prison they will be assigned to

— determinations that will affect their imm e diate welfare

— than with restrictions that will not take effect for many years. With therefore no adversary challenge to the cond i tions of supervised release, the judge, being habituated to adve r sary procedure, is unlikely to question the conditions reco mmended by the probation service. Against this background we turn to the con ditions of s upervised release i mpose d on our two defenda nts. We begin with Siegel , convicted along with his wife of ugly sexual o ffenses against multiple children, including his two

- year

- old daug h ter

— offenses including both physical sex ual abuse ofNo s

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the child and creation of child po r nography

— and sentenced to 30 years in prison. The judge ordered that the conditions of s u pervised release imposed on him remain in force for the rest of his life. Given time served and assuming good beha vior in prison, he will be approaching 60 when released, and therefore likely to remain subject to the se 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 ju stify any of the conditions by refe rence to the statutory se ntencing factors . He did say that “ in terms of the prohibition against [Siegel’s] possessing or having under his control any
mat e rial, legal or illegal , that contains nudity, I’m satisfied that in his situation that’s justified. ” B ut that is a conclusion, rather than a reason related to anythin g 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 nud ity was needed in order to prevent Siegel from downloa d ing chil d porn ogr a phy and , if this was discovered , claiming that he’d done so by accident while searching for adult porno graphy. The argument supported a prohibition against Siegel ’s having access to any pornography, but not nece ssar i ly against his having access t o depictions of , let alone purely verbal references to, nudity even when the depictions or references are not porn o graphic

. The nudity condition was the only one discussed in any depth at the sentencing hearing. The presentence report had recommended the f ollowing wording: “ You shall neither possess nor have under your control any material, legal or illegal, that contains nudity or that depicts or alludes to sexual14 No s

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activity or depicts sexually arousing material ” (emphasis ad ded). Siegel’s lawyer o b jected th at this would forbid Siegel to read the Bible. He was right; the Bible contains all u sions to sexual acti v ity. The judge responded by changing the clause we’ve italicized to “text narratives concerning the sexual abuse of children, or internet chats exchang ing ideas and e xperiences regarding the sexual abuse of children.” He e xplained 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 f u ture, 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? W hat about the B i ble? It “contains nudity,” unless “contains” only means “ provides a visual depiction of ”

— but that would be a forced interpret ation

. The judge said that his revised nudity condition inclu de d “an element of common sense”; “I’ve been a judge for more than 30 years. To my know ledge, 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 re ference to the exercise of discretion by probation officers , r ather than a qualification of the “contains nudit y” condition i t self. So that key condition remains a muddle, and for the a dditional reason that the judge did not explain why the cond ition should not be limited to visual depictions of nudity r elated or incidental to sexual urges or activities. Is “n u dity ” meant to include innocuous partial nudity , such as a phot ograph , in no respect prurient, of an adult wearing a bathingNo s

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suit? So not only is “contains” vague , but “nudity” is ove rbroad, see United States v. Simons , 614 F.3d 475, 483

– 84 (8th Cir. 2010), an d we suggest therefore that “contains nudity” be rephrased as “material that depicts nudity in a pr u rient or sexually arousing ma n ner.” The judge failed to comply with 18 U.S.C. § 3553(a ) by not giving reasons for the other conditions that he was i mposing, 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 pornogra phy, via the Internet. ” The consistency of that condition with the statutory sentencing factors is plain , gi ven the nature of Siegel’s crime , though w e 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 off i cer to tell him that he’s co m plying with all condi tions.
Several components of five of the nine conditions are troubling besides the nudity condition

. The first is a prohib ition of purchase, possession , or use of any “mood altering

su b stances ,” a term neither defined nor self

- evident. It could include coffee, cigarettes, sugar, and choc o late, among many others; yet these substances are not causal factors of reci d iv ist behavior. At oral argument the government’s lawyer suggested a much better d efinition , which would ex clude coffee, cigarettes, sugar, and chocolate : “psychoactive su bstances that impair physical or mental functioning,” inclu ding street, sy n thetic, or designer drugs , such as “bath salts” ( a synthetic amphetamine

- like product ) and “ pot pourri ” ( a lso called “spice,” a synthetic form of marijuana ) some ve r-16 No s

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sions of which , when Siegel was sentenced, had only recen tly been designated controlled su b stances.
C onditions eight and nine require the defendant to “pa rticipate in a sex offender pr ogram as deemed necessary by the probation office,” “submit to physiological testing , i ncluding pol y graph testing, which may be part of a sex o ff ender treatment pr o gram as directed by the ... [probation] office,” and participate in “psychiatric services and/ or a pr ogram of mental health counseling/treatment as directed by the probation officer and

... take any and all prescribed me dications as directed by the probation officer.” We have grouped these conditions because of their repetitiousness and lack of defin ition. If phys i ological testing may be rather than must be part of the required sex

- offender treatment program, implying that it is not a ma n datory part, why is it a free

- standing requirement, imposed whether or not it is part of a sex

- offender treatment p rogram? What other function

c ould it serve? Is it just a e u phemism for giving the prisoner lie

- detector tests? And why are both psychiatric and mental health trea tment , which differ mainly in that psychiatrists can pr e scribe drugs while psychologists gener ally 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 atte ntion , since a sex

- offender treatment progra m will have a si gnificant psychiatric component

. It’s true that Siegel has been diagnosed with other psychological disorders besides ped ophilia. B ut the judge did not indicate whether he believesNo s

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that those disorders would be likely to cause Siegel to e ngage in criminal activity when he is released from prison many years from now unless he r e ceives 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 medic ations the defe n dant 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 eventua lly released? By that time the medical and crimi nological u nderstanding 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 Se ntencing Re form Act, which makes the conditions of supe rvised releas e a part of the se n tence . One would think that they would be imposed after a court hearing held on the eve of the defendant’s release from prison. The hea r ing would also serve as a reminder to the defendant that he is still u nder judicial supervision, even though his sentence was i mposed a long time ago.
The last three conditions of Siegel’s supervised release that trou ble us

— substance

- abuse treatment; installation of filtering software on any computer he uses , in order to block his access to sex u ally orien ted web sites; and the sex

- offender treatment program, including physiological testing, just mentioned

— trouble us for one reason (except that it is a fu rther rather than the sole reason in the case of the sex

offender treatment condition) : understood litera lly they r e-18 No s

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quire the defendant to bear the expense of complying with those conditions , without qualification

. N othing is said about what happens if he can’t pay the entire cost

. Will his supervised release be revoked because he won’t be compl ying with the conditions in que s tion in their entirety ? Or will the government pay for them ? It must mean the la t ter, 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 ( Norflee t ) made clear in stating that “the requir ement of payment is done by Prob a tion taking into account the defendant’s ability to pay

. ” R evoking a defendant’s s upervised release and r e committing him to prison for mere inability to pay would constitute impriso n ment for debt

. The judge in Siegel’s case must make this explicit on r e mand.
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 e x change for a lighter sentence (though, given the length of Siegel’s se ntence, this is unlikely). But remember that the judge is not required to accept the parties’ agreed

- upon sentencing re commendations , or even permitted to do so without first complying with his independent duty to determine the re asonableness of every part of a sentence, including the cond itions of supervised release. United States v. Aguilar

- Ibarra , s upra , 740 F.3d at 591

. We move on to Norfleet , convict ed of possession of, with intent to distribute , more than 28 grams of crack cocaine , and sentenced to the statutory minimum of 10 years in pri son. 21 U.S.C. § § 841(b)(1)(B) , 851

. His conditions of supe rvised release are to remain in force for 8 years after his r e-No s

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lease , the statutory minimum for his o f fense (see 21 U.S.C. § 842(b)(1)(B)), w hich means that the actual length of his se ntence 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 prese n tence report, with a few changes, of which the most important changed “You shall

r e frain 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 pu r chase [etc.] ... any ... mood altering substance (excluding coffee, tea, and soda ) .”
E xcluding coffe e , tea, and soda from the class of mood

altering substances

— exclusion s missing from Siegel’s para llel condi tion of su pervised release

— is certainly a step in the right direction . B ut not a big enough one

. Will Norfleet upon his r e lease from prison be permitted to p ut two teaspoonfuls of sugar in his cup of coffee? A number of familiar foods, i ncluding bluebe r ries, are cal led “mood foods” because they

can have significant effects on the eater’s mood and maybe

even on a psychiatric condi tion that he might have such as d e pression. See, e.g. , Markham Heid, “Eat This, Feel That: The Mind

- Altering Effects of Everyday Foods,” Pre ve n tion , 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 subst ituted for “mood altering su b stance.” The judge did explain that “the re ason I’m including the [prohibition against use of] mood

- altering substance [s] is b e-20 No s

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cause of the fact that there are many drugs that are not yet scheduled [the reference is to the schedule of controlled su bstances , see 21 U.S.C. § 812, that is, drugs such as cocaine that are tightly regulated, and often illegal other than in very rare circu m stances] , and there are available items, such as bath salts and potpourri, which could affect your abi l ity to control yourself.” But the phrase she used

— “mood

- altering

s ubstance”

— 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.
A nother oddity concerning the “mood

- altering su bstance” condition is that while pu r porting to forbid the u se of any such substance ( unless prescribed by a doctor or other medical officer) e x cept coffee, tea, and soda , it forbid s only “excessive” use of alcohol , and thus carves a major exception to the prohibition

. And a vague one. For what is excessive drinkin g? Upon his release from prison Norfleet probably will be handed a brochure called an “orientation to superv ision ” that will i n clude a definition of the term. We can’t find the brochure used in the Central District of Illinois, but it seems that other dist ricts (and so probably the Central Di strict as well) define it as “any use of alcohol that adversely affects your emplo y ment, your relationships, or your ability to comply with the conditions of s upervision . This includes the use of alcohol which results i n the violation of any l ocal , s tate , or f ederal laws including disorderly intoxication and/or driving under the influence.” E.g., U.S. Probation O ffice, “ Orientation to Supervision : Western District of Mi ssouri, ” p. 13, www. mow.uscourts.gov/ probation_ pretrial/ pr
o bation_ forms/ ori en t ation_ complete.pdf

.No s

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The second part of the definition

— use of alcohol th at r esults 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 a l cohol use that “includes binge drinking, heavy drinking, any alc o hol use by pe ople 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,” w ww.cdc.gov/ alcohol/ faqs.htm

. A d e fendant can find tables for calculating the pe r centage of alcoh ol 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 Calcul a tor, “BAC Charts,” http:// blood al co hol calculator.org/bac

- charts/

. These websites are no t authoritative, but may be useful suppl ements to the CDC’s definition of excessive alcohol use, which in turn is superior to the definition in the “orientation to supervision” br o chure.
A fu r ther oddity is that Norfleet is ordered to undergo a program for treatment of substan ce abuse that includes “not

m ore than six tests per month to determine whether you have used ... alcohol.” Yet he’s allowed to consume a l cohol. Presumably the purpose of the tests is to see how much he’s consumed , but the statement of co nditions of supervised r elease 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 . D ays, weeks,22 No s

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probably months will elapse after the defendant begins the program (upon his release) before its effect s are felt. During that p e riod the program may have little or no effect on the likel i hood of his committing crimes

. But this problem is not within the power of either the probation se r vice or the court s to solve. The Bureau of Prisons does offer a “Residential Drug Abuse Program , ” but neither the prob a tion service nor the judge can require that a prisoner be a l lowed to enroll in it. The judge did recommend that Norfleet “serve [his prison
sent ence] 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 The r apy,” 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. T here is ev i dence that it can also reduce re cidivism. See, e.g., David B. Wilson, Leana Allen Bouffard & Doris L. MacKe nzie, “A Quantitative Review of Structured, Group

- Oriented, Cognitive

- Behavioral Programs for O f fenders,” 32 Criminal Justice & Behavior 172 , 198

– 200 (2005); Nana A. La n denberger & Mark W. Lipsey, “The Positive Effects of Cogn i tive

– Behavioral Programs for Offenders: A Meta

- Analysis of Fa ctors Associated with Effective Treatment,” 1 J. Experime n tal Criminology 451 , 470

– 71 (2005) . The judge should have made clear, ho w ever, that Norflee t’s participation in the programNo s

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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, the se cases must be remanded for reconsi deration 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 m inded on their own to impose) conditions of supervised release: 1. Require the probation service to communicate its re commendations for conditions of supervised release to d efense counsel at least two weeks before the sentencing hea ring.

2 . Make an indepen dent judgment (as required in fact by 18 U.S.C. § 3553(a)) of the appropriateness of the reco mmended conditions

— independent, that is, of agreement b etween prosecutor and defense counsel (and d e fendant) on the conditions, or of the failure of defense cou n se l to object to the conditions recommended by the prob a tion service. 3. Determine appropriateness with reference to the pa rticular 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 refe rence 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 No s

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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 s u pervised 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 experience s in prison

. B efore endin g this long opinion, we need to discuss an issue raised in Siegel’s ap peal that is unrelated to supervised release. His wife, the collaborator in his crimes, was se ntenced to 24 years in prison

— a sentence six years shorter than his. He says she was equally guilty and he should therefore r e ceive no greater sentence. T hat 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 se n tence, maybe bel ieving that when a husband and wife commit a crime together the hu s band is always the instigator, t hat’s no reason for us to order the judge to make the same mistake with regard to Siegel by reducing his se n tence 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 gover n ment 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 compl icate d the government’s investigation by destroying his co mputer’s hard drive, which doubtless contained child porno graphy . He destroyed it so completely that the government was unable to recover any of the data in it . Was six years tooNo s

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great a sentence increment for such a destruction of ev idence ? But that isn’t the que s tion. 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 co m pounding it. So the prison sentences in both our cases stand, but the

cases must be remanded for reconsideration of the cond itions of supe r vised 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)

. A FFIRMED IN P ART , R EVERSED IN P ART , AND R EMANDED

.