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Some Proposals for Curbing Judicial Abuse of Probation Conditions Andrew Horwitz

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Some Proposals for Curbing Judicial Abuse of Probation Conditions Andrew Horwitz Washington and Lee Law Review Volume 57 | Issue 1 Article 4 Winter 1-1-2000 Coercion, Pop-Psychology, and Judicial Moralizing: Some Proposals for Curbing Judicial Abuse of Probation Conditions Andrew Horwitz Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Judges Commons Recommended Citation Andrew Horwitz, Coercion, Pop-Psychology, and Judicial Moralizing: Some Proposals for Curbing Judicial Abuse of Probation Conditions, 57 Wash. & Lee L. Rev. 75 (2000), https://scholarlycommons.law.wlu.edu/wlulr/vol57/iss1/4 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. Coercion, Pop-Psychology, and Judicial Moralizing: Some Proposals for Curbing Judicial Abuse of Probation Conditions Andrew Horwitz* Table of Contents I. Introduction ........................................ 76 II. The Sad State of Affairs .............................. 79 A. Procedural Obstacles to Appellate Review .............. 81 1. Failure to Appeal ................... .......... 81 2. Reliance on the Contract and Waiver Theories ........ 84 3. Reliance on the Act of Grace Theory .............. 88 B. Limitations on Substantive Appellate Review ........... 90 1. Statutory Challenges ........................... 90 a. Articulating the Standard ..................... 90 b. Applying the Standard ....................... 95 2. Constitutional Challenges ....................... 99 a. The Consuelo-Gonzalez Test ........ ...... 101 b. The Unconstitutional Conditions Test .......... 105 Ill. The Parade of Horribles ............................. 110 A. Infringements onthe Right to Free Speech ............. 110 B. Infringements on the Right to Refrain from Speaking ..... 113 1. Public Apologies ............................ 113 2. Mandatory Contributions ...................... 117 C. Infringements on the Right to Freedom of Association .... 118 1. Association with Political or Social Groups ......... 119 2. Association with Spouse or Fianc6 ............... 121 D. Infringements on the Right of Access to the Courts ...... 124 * Associate Professor and Director of the Criminal Defense Clinic, Roger Williams University School of Law. BA 1983, Haverford College; J.D. 1986, New York University School of Law. I would like to thank the Roger Williams University School of Law for its financial support for this project and my wife, Alexandra K. Callam, for her patience and support. 57 WASH. &LEE L. REV 75 (2000) 1. Resolving Tangentially Related or Unrelated Issues ... 124 a. Regulation of Custody or Visitation ........... 125 b. Regulation of Employment or Professional Licensing ............................... 126 c. Regulation of Immigration Status ............. 128 d. Requirement of Restitution .................. 129 2. Silencing the Pro Se Litigant .................... 130 E. Infringements on the Right to Freedom of Religion ...... 132 F. Infringements on the Right to Privacy ................ 136 1. Reproductive Freedom ........................ 137 2. Marital Freedom ............................. 141 G. Infringements on the Right to Be Free from Unreasonable Searches and Seizures ................. 142 H. Infringements on the Right to Basic Human Dignity ..... 144 I. Infringements on the Right to Freedom of Thought ...... 151 IV. A Proposed Response ............................... 154 A. Eliminating Barriers to Substantive Appellate Review .... 154 B. Making Substantive Appellate Review Truly Substantive . 156 C. Reducing the Permissible Range of Judicial Innovation ... 158 V. Conclusion ....................................... 160 L Introduction Picture yourself having just been convicted of a relatively minor criminal offense. Imagine that you are living in a country in which the judge could prohibit you from participating in political speech or protest, prohibit you from associating with "known homosexuals," prohibit you from associating with your spouse or fianc6, prohibit you from belonging to the religious organization of your choice, require you to submit to a search of your person or your home at any time of day or night, require you to wear a flourescent pink bracelet proclaiming your offense, or banish you from the country altogether. This country must be an authoritarian dictatorship of some kind, a country that is not governed by a constitution or the rule of law, right? Wrong. This nation is the United States of America as the legal system exists today. A trial judge has imposed each of the sentences just listed, and an appellate court has allowed each to stand.' 1. See United States v. Bortels, 962 F.2d 558, 560 (6th Cir. 1992) (upholding probation condition prohibiting defendant from associating with her fianed); United States v. Sharp, 931 F.2d 1310, 1311 (8th Cir. 1991) (approving probation condition requiring defendant to submit to warrantless searches); United States v. Janko, 865 F.2d 1246, 1247 (1 lth Cir. 1989) (sustain- CURBING JUDICIAL ABUSE OFPROBATION CONDITIONS 77 The continuing existence of this sweeping deference to the quirks and peculiarities of individual sentencing is particularly striking in today's politi- cal climate in which state and federal legislatures cannot seem to act quickly enough to reduce judicial discretion through the imposition of rigid sentencing schemes and mandatory minimum sentences. In the face of an overwhelming national movement toward the enforcement of uniformity and predictability in sentencing, a significant and growing trend has emerged toward the use of probation conditions as a means for the imposition of a vast array of unusual, idiosyncratic, and often quite alarming criminal sentences.2 Published cases and media accounts provide a seemingly endless array of examples that involve significant infringements on constitutional and basic human rights.3 One particularly disturbing thread of the case law reflects a growing move- ment toward sanctions that are designed primarily to inflict shame or humilia- tion on the offender.4 The published cases in the area of probation conditions reveal an extraor- dinary level of judicial reliance on the judge's own values and sense of morality combined with the judge's best guess or intuition about the potential deterrent or rehabilitative impact of a particular sanction.' The sentencing judge's broad discretion leaves significant room for racial, ethnic, and reli- gious bias to enter into the sentencing judgment. Very little empirical data documents the impact of any ofthe more common "innovative" sentences, but substantial anecdotal evidence documents unpredicted outcomes, such as the destruction of families, vigilantism, and even suicides.6 ing probation condition banishing defendant from United States); Malone v. United States, 502 F.2d 554, 556-57 (9th Cir. 1974) (allowing probation condition prohibiting defendant from belonging to or participating in "any Irish Catholic organizations or groups"); United States v. Kohlberg, 472 F.2d 1189, 1190 (9th Cir. 1973) (permitting probation condition prohibiting defendant from associating with "known homosexuals"); State v. Nickerson, 791 P.2d 647, 648- 49 (Ariz. Ct. App. 1990) (upholding condition prohibiting defendant from associating with his wife without consent of parole officer); People v. Mason, 488 P.2d 630, 632-34 (Cal. 1971) (sustaining probation condition requiring defendant to submit to warrantless searches); People v. King, 73 Cal. Rptr. 440, 445-48 (Ct App. 1968) (upholding probation condition prohibiting defendant from "making speeches" or participating in demonstrations); Ballenger v. State, 436 S.E.2d 793, 794-95 (Ga. Ct. App. 1993) (approving probation condition that drunk driving defendant wear pink floureseent bracelet identifying his crime); State v. Karan, 525 A-2d 933, 934 (R.I. 1987) (upholding probation condition banishing defendant from United States); Edwards v. State, 246 N.W.2d 109, 110-12 (Wis. 1976) (sustaining probation condition prohibiting defendant from associating with her fianc6). 2. See infra Part II (discussing wide variety of probation conditions). 3. See infra Part I (giving numerous examples of how probation conditions infringe upon rights of defendants). 4. See infra Parts flLB.1 & MIE-I (discussing humiliation as sentencing approach). 5. See infra Part III (exploring impact of judicial morality and intuition in sentencing). 6. See infra Part fI.H (exploring negative effects of humiliation as sentencing approach). 57 WASH. &LEE L. REV. 75 (2000) Currently, appellate scrutiny of probation conditions is highly unlikely. The primary reason that appellate courts seldom address the issue is that defendants rarely challenge probation conditions on appeal.7 Because defen- dants often accept the conditions as part of a negotiated plea agreement, defendants frequently believe they cannot challenge the probation conditions, no matter how inappropriate or unconstitutionally intrusive. Case law often supports this belief. Moreover, if the judge has suggested that the probation conditions were imposed as an alternative to incarceration, the defendant often is unwilling to risk filing an appeal for fear of going to prison if appellate review overturns the conditions. When the defendant does appeal a probation condition, that appeal fre- quently is doomed to
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