Sunday, November 04, 2012

Case o' The Week: Hammer & Nail - Johnson and Sex Offender Conditions of Supervision

When all you’ve got is a hammer, the whole world looks like a nail.

Probation is getting resources for hammering sex-offender supervision (and our clients are getting nailed). United States v. Johnson, 2012 WL 5328597 (9th Cir. Oct. 30, 2012), decision available here.

Players: Decision by Judge Clifton. Hard-fought appeal litigated by C. Reneé Manes, AFPD D.Or.

Facts: In 1980, Johnson raped a woman at knifepoint and was sentenced to nine years. Id. at *1. In 1990, he raped a fourteen-year old girl at gunpoint and was sentenced to thirteen years. Id. 

  In March of 2010, Johnson had a gun; he was convicted of being a felon in possession and sentenced in May 2011. See Docket #23, 3:10-cr-240 MO (D. Or.). 

  Months later, Probation convinced the district court to issue a summons, bring the defendant back in, and face a new a special condition requiring that Johnson participate in a “sex offense assessment and treatment program.” Id. at Docket # 29. After briefing, the district court ordered that Johnson “submit to a sex offender assessment as directed by the probation officer.” Id.      

Issue(s): “This appeal presents the question of whether a district court may require a sexual offender assessment—not treatment, just an assessment—as a condition of supervised release when the defendant has two decades-old prior sexual offense convictions involving weapons, when the current offense also involves a weapon, and when the defendant's prior completion of sex offender treatment cannot be confirmed.” Johnson, 2012 WL 5328597, *1.

Held: “We conclude that it may require such an assessment and affirm the condition imposed in this case.” Id. at *1. “The district court did not abuse its discretion in ordering the sexual offender assessment condition. Johnson was twice convicted of serious and violent sexual offenses. In addition, Johnson's current offense involved possession of a gun, the same sort of weapon he used as a sexual offender. Johnson's history as a sexual offender, old as it may be, justified the district court's decision to order a sexual offender assessment. After the district court receives the results of the assessment, it will be better able to determine if additional conditions are necessary to protect the public and rehabilitate Johnson.” Id. at *2.

Of Note: The Ninth has held that twenty-year old and forty-one year old sex offenses were too stale to support supervised release conditions that included sex offender treatment and testing. Id. at *2 (quoting United States v. T.M., 330 F.3d 1235 (9th Cir. 2003)). How does the Ninth in Johnson distinguish T.M.? First, Johnson involved an assessment, and not sex offender treatment and testing. Id. In T.M., the defender had also demonstrated progress in sex offender treatment – here, there was no such record. Id. It bears emphasis that Johnson didn’t overrule T.M.: beware of rather narrow Johnson holding when battling these sex conditions on supervision.

How to Use: Why does Probation have sex on its mind? Long after sentencing, Probation Officers are now tromping back to court and seeking sex “assessment and treatment” conditions. These “assessments” involve polygraphs with questions about sex crimes, with no Miranda protections or immunity agreements. In a particular offensive gambit, Probation now pushes our clients to “voluntarily” sign these supervision modifications without alerting counsel. 

  Why the sex fixation? Maybe it’s the aftermath of the Phillip Garrido tragedy. Or maybe it is the resources and staffing that a Probation Office can snag if it supervises sex offenders. If a client has any sex offense in his past (even, apparently, one many decades old), warn them not to voluntarily sign new conditions of supervised release without speaking first to you.
For Further Reading: If you plead open to preserve an appeal, and the government denies you the third acceptance offense level, object!

   The Ninth is on the wrong side of a circuit split on this issue, and a compelling amicus brief from the Federal and Community Defenders and NACDL was filed last week supporting an en banc call. Poach freely from this beautiful brief for your sentencing objections – you can find it here.

Image of hammer and nail from

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


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