Sunday, October 28, 2012

Case o' The Week: A Good Win, and a Tremendous Loss -- Wolf Child and Conditions of Supervised Release

The Honorable Judge Betty Fletcher

An important win in the Ninth is sadly overshadowed this week, by the loss of one of the Ninth’s (and nation’s) leading jurists: the Honorable Betty Binns Fletcher.

United States v. Wolf Child, 2012 WL 5200347(9th Cir. Oct. 23, 2012), decision available here.

Players: Big win for Dan Donovan, Federal Defenders of Montana alumnus. Decision by Judge Reinhardt, joined by Judges Schroeder and M. Smith.  

Facts: Wolf Child pleaded guilty to attempted sexual abuse of a 16-year old. Id. at *1- *2. At sentencing, the district court imposed a contested special condition of supervised release. Id at *1.. The court prohibited Wolf Child from residing with, or being in the company of, any child under the age of 18 – including his fiancée, and daughters – without prior written approval of his probation officer. Id. The court imposed this condition “on the basis of a record devoid of evidence supporting the need for such a restriction with respect to his intimate family members.” Id.

Issue(s): “Wolf Child . . .  appeals [the] special condition of supervised release . . .” Id. at *1.

Held: “We hold that the fundamental right to familial association, implicated by the parts of the special condition prohibiting Wolf Child from residing with or being in the company of his own daughters and socializing with his fiancée, is a ‘particularly significant liberty interest.’ The district court was therefore required to follow an enhanced procedural requirement to make special findings on the record supported by evidence in the record, that the condition is necessary for deterrence, protection of the public, or rehabilitation, and that it involves no greater deprivation of liberty than reasonably necessary. Because the district court made no such findings regarding the imposition of the special condition, and it conducted no individualized examination of Wolf Child's relationship with the affected family members, it committed procedural error with regard to these specific individuals. Moreover, because of the absence of any evidence in the record that would support the limitations on the fundamental liberty interests at issue, we hold that special condition 9, as applied to restrict Wolf Child's ability to reside or socialize with his own children and with his fiancée is substantively unreasonable. In addition, we conclude that special condition 9 is overbroad both by virtue of prohibiting Wolf Child from being in the company of any child under the age of 18 under any circumstances and by similarly prohibiting him from dating or socializing with anybody who has children under the age of 18, regardless of the circumstances, without prior approval of his probation officer." Id. at *1.

Of Note: Judge Reinhardt writes a beautiful explanation of review of conditions of supervised release – a highly-commended primer. Id. at *3-*4. The broad Carty/Zavala deference familiar at sentencing does not flatly apply in this context: instead, when conditions of supervised release implicate a “particularly significant liberty interests” greater individualized showings are required (and greater appellate scrutiny merited). Id. at *3.

How to Use: Wolf Child immediately reverberated in the district courts. In N.D. Cal., one careful DJ has already put the government on notice of Wolf Child’s requirements for individualized showings. It is a timely decision: Probation now routinely seeks non-individualized and intrusive S.R. conditions, parroting blanket requirements dictated by D.C. (including mandatory polygraphs for putative “treatment”, with no non-pros protections.) Wolf Child is a welcome tool to fight Probation’s “one size fits all” approach to supervised release.   
For Further Reading: Our country lost a legendary advocate for justice with the recent passing of the Hon. Judge Betty Fletcher. Others have commented on her historical role in the Ninth. See New York Times article here

         We here pay tribute to Judge Fletcher’s extraordinary contributions to the defense of indigent clients. In sentencing, in Fourth Amendment litigation, in criminal discovery, and in capital cases, Judge Fletcher was always a voice for the voiceless, a powerful defender of the powerless, and a fierce protector of constitutional protections. For a small slice of her remarkable legacy in federal criminal justice jurisprudence, see collection of blogs here.

Everyone has their favorite B. Fletcher opinion. For sheer intellectual honesty, beauty in legal writing, dogged independence, and good old-fashioned Liberal instincts, ours is her post-Apprendi dissent on acquitted conduct in sentencing, in United States v. Mercado, 474 F.3d 654, 658 (9th Cir. 2007), summarized here.

     A tremendous loss to the Ninth, and to everyone dedicated to the defense of indigent clients.

Image of the Honorable Judge Betty B. Fletcher from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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