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Special Sex Offender Release Conditions Vacated by Tenth Circuit
The federal Probation Office’s Presentence Investigation Report (PSR) recommended that Dougan be required to fulfill seven conditions as part of his sentence: First, to participate in a sex offender treatment program while incarcerated; second, as a condition of release, to submit to a sex offender mental health assessment and treatment; third, to waive all rights of confidentiality regarding that treatment; fourth, he would not be allowed at any residence with children under 18 years old; fifth, he could not associate with children younger than 18 without permission; sixth, he was barred from the possession of any pornography; and finally, to continue registering as a sex offender, which he had been required to do as a result of his 1978 conviction. The district court adopted these conditions and incorporated them into Dougan’s sentencing order.
Dougan appealed, arguing that the special conditions constituted an “abuse of discretion.” The Tenth Circuit noted that “District courts have broad discretion to prescribe special conditions of release. However, this discretion is not without limits.” Under 18 U.S.C. § 3583(d)), the conditions “must be reasonably related to at least one of the following: the nature and circumstances of the offense, the defendant’s history and characteristics ... [and] must involve no greater deprivation of liberty than is reasonably necessary to achieve the purpose of deterring criminal activity, protecting the public, and promoting the defendant’s rehabilitation.”
The appellate court found persuasive the remoteness in time of Dougan’s most recent sex-related crime, which occurred 16 years prior to his present offense, echoing the findings of other circuits. Most of those circuits had held that periods of time from 10 to 20 years are too remote to be tied to current offenses where the defendant lacked an extensive history of other sex-related crimes.
“The government presented no evidence that Dougan has a propensity to commit any future sexual offenses or that Dougan has committed any sexual offense since 1994, at the latest,” the Tenth Circuit wrote.
The appellate court also noted that in this particular case the “special conditions of release implicate[d] significant liberty interests, such as the requirement that Dougan submit to possible penile plethysmograph testing,” and that conditions which implicate significant liberty interests are qualitatively different from others that do not.
The Court of Appeals further took notice of the fact that Dougan had not challenged the condition requiring him to continue registering as a sex offender, and left that condition intact, but denied his challenge to the district court’s order for sex offender treatment during incarceration due to lack of jurisdiction, because “the district court’s recommendations are not binding on the Bureau of Prisons” and thus did not constitute a “final decision” subject to appellate review.
The case was remanded to the district court with directions to vacate Dougan’s special sex offender conditions of supervised release. See: United States v. Dougan, 684 F.3d 1030 (10th Cir. 2012).
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Related legal case
United States v. Dougan
|Cite||684 F.3d 1030 (10th Cir. 2012)|
|Level||Court of Appeals|