A decision from the 10th that might be applicable to military parolees

There are two ways a military prisoner gets out: serve to their minimum release date or get parole. Either way, the person is going to be placed into a strict form of post-release conditions. For those who get to their MRD they will go into the Mandatory Supervised Release Program.

MSR (Mandatory Supervised Release) is very similar to parole. Individuals released on MSR must adhere to the conditions of release and are under the direct supervision of a parole/probation officer. Individuals released via MSR remain under supervision and must abide by all conditions of release for the full length of their sentence unless a portion of the sentence has been remitted by the Board. After successful completion of MSR, individuals are released from supervision and have fully served their sentence. An individual who violates the conditions of MSR is subject to sanctions for misbehavior that range from warnings to revocation of MSR and return to military confinement. The individual on parole and MSR is under the direct supervision of a United States Probation Officer (USPO) until the full sentence has been served or the Army Clemency and Parole Board remits the remaining portion of his sentence. The difference between the two is an individual is eligible for parole after serving one-third or more of his/her sentence, while an individual released on MSR is released when he has served until his minimum release date and has submitted an acceptable release plan. Failure to provide an acceptable release plan could require the individual to serve his full sentence in confinement.

So says the Army Review Boards Agency.

United States v. Von Behren, __ F.3d ___ (10th Cir. 2016), is an interesting decision related to federal prisoners. But could it have application to paroled military prisoners. The court introduces the issue as follows.

Brian Von Behren is serving a three-year term of supervised release stemming from a 2005 conviction for distribution of child pornography. One of the conditions of his supervised release was modified to require that he successfully complete a sex offender treatment program, including a sexual history polygraph requiring him to answer four questions regarding whether he had committed sexual crimes for which he was never charged. The treatment program required him to sign an agreement instructing the treatment provider to report any discovered sexual crimes to appropriate authorities. Mr. Von Behren contended that the polygraph condition violates his Fifth Amendment privilege against self-incrimination. The district court disagreed and held that the polygraph exam questions do not pose a danger of incrimination in the constitutional sense. Mr. Von Behren refused to answer the sexual history questions, thereby requiring the treatment provider to expel him from the program and subjecting him to potential revocation of his supervised release for violating the condition of supervision. The district court denied Mr. Von Behren’s request to stay further proceedings pending appeal, but this court granted a stay. We reverse on the Fifth Amendment issue.

It remains to be seen if this question comes up in a military case. Until then, Von Behren is good law in the 10th Circuit, which encompasses the USDB.