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Interstate Commission for Adult Offender Supervision | Ensuring Public Safety for the 21st Century

Bench Book - 3.6.3 Limitations on Conditions

Notwithstanding the authority of the sending and receiving state to impose conditions on an offender, several courts assert that certain conditions – such as banishment from a geographical area – are not appropriate because they interfere with the purpose of probation and parole, which is essentially rehabilitative in nature. For example, it is an invalid condition to order an offender deported from the United States, as it is beyond the jurisdiction of a court to order anyone deported without due process of the law. State v. Ahmed, 278 Mont. 200, 211, 924 P. 2d 679, 685 (1996), cert. denied, 519 U.S. 1082 (1997). Similarly, most jurisdictions examining the issue of banishment from a geographical area generally hold that such a condition cannot be broader than necessary to accomplish the goals of rehabilitation and social protection. Jones v. State, 727 P.2d 6, 8 (Alaska Ct. App. 1986) (vacating condition prohibiting the defendant from being within a 45- block area since the condition is “unnecessarily severe and restrictive,” unlike a condition which prohibits the frequenting of certain types of establishments such as bars where prohibited activity will occur); State v. Franklin, 604 N.W.2d 79, 82 (Minn. 2000) (vacating condition excluding defendant from Minneapolis, Minnesota); State v. Ferre, 734 P.2d 888, 890 (1987) (determining condition restricting the defendant from the county where the victim lived was broader than necessary and trial court must draw a more limited geographical area); Johnson v. State, 672 S.W.2d 621, 623 (Tex. App. 1984). (Determining banishment from county where defendant resides is unreasonable).

Some jurisdictions invalidate banishment conditions as contrary to public policy. See People v. Baum, 231 N.W. 95, 96 (Mich. 1930). See also, Rutherford v. Blankenship, 468 F. Supp. 1357, 1360 (W.D. Va. 1979) (power to banish, if it exists at all, is vested in the legislature; where such methods of punishment are not authorized by statute, it is impliedly prohibited by public policy); State v. Charlton, 846 P.2d 341, 344 (N.M. Ct. App. 1992) (endorsing the public policy rationale stated in Baum and Rutherford). By contrast, a limited number of jurisdictions hold that probation conditions restricting a defendant from geographic areas encompassing a county or areas within a city or town reasonably relate to the goals of rehabilitation and the protection of society. See Oyoghok v. Municipality of Anchorage, 641 P.2d 1267, 1269 (Alaska Ct. App. 1982) (approving condition restricting offender convicted of soliciting prostitution from being within a two block radius where street prostitution occurs); People v. Brockelman, 933 P.2d 1315, 1320 (Colo. 1997) (affirming condition restricting offender convicted of assault from the two towns where the victim lived and worked); State v. Nolan, 759 A.2d 721, 724 (Maine 2000) (trial court's special probation condition which prohibited offender from entering towns of Sanford or Wells during five-year probationary term was reasonable as applied and was not an abuse of discretion).

Courts have held other types of conditions invalid because they bear no reasonable relationship to offender rehabilitation, public safety or the underlying offense. For example, a condition requiring sex offender registration is invalid where the trial court imposes the condition not because of the underlying offense (armed bank robbery), nor because of the conduct that leading to revocation, but because of an unrelated 1986 sex-offense conviction. See United States v. Scott, 270 F.3d 632, 636 (8th Cir. 2001). In the Scott case, the court opined that the condition has had no reasonable relationship to the nature of the underlying offense and the record has not shown that the condition to be reasonably necessary to deter the offender from repeating a sex crime from 15 years earlier. Likewise, the courts have found that a condition restricting computer use is not reasonably related to present or prior offenses. See United States v. Peterson, 248 F.3d 79, 83-4 (2nd Cir. 2001) (computer and internet restriction unreasonable for offender guilty of writing bad checks who also had previous incest charge and probation violations for accessing legal pornography). Thus, a condition that is overly broad, not related to the goals of rehabilitation, and not reasonably related to the protection of a victim or a community is generally unlawful. State v. Muhammad, 43 P.3d 318 (Mont. 2002); Harrell v. State, 559 S.E.2d 155 (Ga. Ct. App. 2002).

In addition to finding some conditions invalid, some courts upheld the conditions but found their execution invalid as the offender failed to receive sufficient notice of the proscription against certain conduct. In State v. Boseman, 863 A.2d 704 (Conn. Ct. App. 2005), the court held that revocation of an offender’s probation for violating a no-contact order violated due process because the offender had no prior knowledge that being outside of his girlfriend’s house to drop off a child to an intermediary was contemplated within no contact condition. See also Jackson v. State, 902 So.2d 193 (Fla. 5th Dist. Ct. App. 2005) ( condition of probation of paying for drug treatment was not statutorily authorized and was struck since it was not orally pronounced; conditions requiring drug treatment and submission to warrantless searches were authorized). Likewise, a condition requiring an offender to reimburse attorney’s fees was not valid where the trial court failed to determine the offender’s ability to pay. State v. Drew, No. 83563 (Ohio Ct. App. 8th Dist., July 8, 2004).

References

Definitions

Click terms below to reveal definitions used in this rule.

Plan of Supervision – means the terms under which an offender will be supervised, including proposed residence, proposed employment or viable means of support and the terms and conditions of supervision.

Receiving State – means a state to which an offender requests transfer of supervision or is transferred.

Supervision – means the oversight exercised by authorities of a sending or receiving state over an offender for a period of time determined by a court or releasing authority, during which time the offender is required to report to or be monitored by supervising authorities, and to comply with regulations and conditions, other than monetary conditions, imposed on the offender at the time of the offender’s release to the community or during the period of supervision in the community.