US v. Stephens

No. 04-50170 (9-2-05). "Pick a number, any number" a carnival barker might yell. That may well be the result of this decision, involving SR. The 9th confronts the usual SR conditions involving drug treatment, and drug tests. The challenge is whether delegation of the drug treatment and the drug tests to the Probation Officer is an improper delegation of authority under Article III (remember, not setting restitution, and not setting payments, was). The 9th looked at the statute and held that the requirement of drug treatment programs was proper, and the fact that drug testing was a feature of those programs was permissible. The officer, and program, could set these schedule for such testing. However, for the non-treatment drug testing, of which a minimum number of drug testing is required under 18 USC 3583(d), which requires three tests -- one within 15 days and two thereafter. The court could suspend such a requirement. The 9th reasons that the failure of a drug testing has a consequence, usually dire, and so the court needs to set a maximum number of drug tests if ordered outside the drug treatment context. This can't be delegated to the PO. "Hold on," says Clifton in dissent, this runs counter to prior precedent, back in 1987, in US v. Duff, 831 F.2d 176 (9th Cir. 1987), where the court permitted POs to order drug testing even when the court had not ordered drug testing because it supported the "commit no further crimes" requirement. The same policies should be at work here. Moreover, this decision will have the effect, argues Clifton, of having a district court set a high number, and back off from there. (To which the majority replies, in note 5, that "We doubt the district court judges would make unprincipled determinations." What do you think?)
Congrats to AFPD Alice Fontier, San Diego, for the statutory/delegation win.