Up until, oh I don’t remember the date now, but quite a number of years ago, a military prisoner who reached his minimum release date (MRD) was released without any restrictions on liberty post release. That lead to a bit of gamesmanship before the clemency and parole boards. If a prisoner was up for parole consideration and he had less than a year to go for his MRD the prisoner would usually waive parole consideration. They were willing to serve the months rather than be paroled. That was because a paroled prisoner would waive all of their good time. But more importantly be subject to many onerous conditions of parole.

(Note to trial practitioners. Before advising your client about post-trial matters I would recommend you consult and you review with the client DODI 1325.7. This regulation has a number of important rules you can educate your client about (including, yes, sex offenders). Although it does not contain Rule No. 1 for obtaining parole: that you “have taken responsibility for your confining offenses.” Words to that effect must show up somewhere in confinement evaluations and recommendations. That works pretty well in a GP case. If you are a defense counsel and have NG but found guilty case give me a call, all is not lost. [Having sat as a voting member of the Navy C&PB, albeit some years ago, I’d venture that no other rule is as important to parole than Rule No. 1. You may have good scores on the points based classification system and good reports and no discipline reports, but . . . you clearly haven’t learned any lessons.] Anyway. Upon entry to confinement the facility calculates the full term date (FTD), that’s day for day service of sentence, minus credit for pretrial confinement or an Article 13, UCMJ, violation, or effect of a PTA. Then they calculate automatic good time credit based on the length of approved sentence, which becomes the minimum release date (MRD). Absent loss of good-time or clemency or parole that’s when the prisoner can normally expect to be released.)

Once the rule changed it no longer matters much about release on MSR or parole because of mandatory supervised release conditions. These conditions can be as onerous as parole conditions administered by the federal probation and parole personnel. In particular mandated sex offender or other counseling, no computer access, etc.

As Dwight points out that rule was challenged in United States v. Pena, 61 M.J. 776 (A.F. Ct. Crim. App. 2005), aff’d, 64 M.J. 259 (C.A.A.F. 2007). The petitioner in Pena was unsuccessful.

The district court judge in Moultrie denied the petition. So now several courts have independently ruled against a petitioner wanted a ruling against application of MSR, as well as CAAF. It would seem that the issue doesn’t really become ripe until such time as the prisoner is about to be or is released on MSR?

The results are consistent with Supreme Court jurisprudence as those ordered into supervision by state or federal civilian courts. No federal circuit court has ruled on this issue yet. But Dwight points to the one case from the federal jurisdiction in which the USDB sits — Huschak v. Gray, 642 F. Supp. 2d 1268 (D. Kan 2009). It was assumed that all MSR’s would have to be litigated in Kansas. But if Moultrie is followed, a MSR’ee can seek relief in the federal district court-house building in which (usually) his probation officer has her office. A similar type of petition has been denied in Clayton v. United States Army, 20091119, 0000827 (W.D. Ky. November 19, 2009).

Here is a link to the U.S. Sentencing Commission report on Federal Offenders Sentenced to Supervised Release, July 2010.

Our clients convicted of child pornography offenses and certain other offenses in which the internet is case related are restricted in computer access post-release. I mention Quon because of an interesting comment at Sentencing Law & Policy.

I recently had to deal with the Federal Probation Service and the Air Force Clemency & Parole Board about a former now paroled client alleged to have improperly used computers to search for employment. Employment is necessary for parole, and most state funded employment offices, and many employers require applicants to use computers to search for a job or to apply for a job. We resolved the case in the client’s favor and parole was not revoked. The parole and FPS rules do allow computer use in limited circumstances related to seeking employment. The rules are bureaucratic and subject to misunderstanding. Basically the rules require a new “permission” to use a computer each time. So going to Home Depot in the AM and Lowes in the PM requires two permissions. So, here is the SL&P comment on an aspect of Quon.

Though Quon will be of greatest interest to those involved in traditional debates over privacy and police-practices, the opinion for the Court by Justice Kennedy has this notable flourish that could have some broader impact: Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. Relatedly, in a rich and spot-on solo concurrence that takes a variety of swipes at the majority, Justice Scalia concludes by lamenting the legal challenge presented if and when the Court embraces a legal ruling “that requires evaluating whether a given gadget is a necessary instrument for self-expression, even self-identification.” So, what does this have to do with sentencing law and policy in general or sex offender restrictions in particular? Well, I do not think it is much of a stretch for persons to contend in these modern technological times that access to the internet (and maybe even access to a Facebook or Twitter account) is now “essential means or necessary instruments for self-expression, even self-identification.” But, as regular readers know, a fair number of sex offenders these days are facing release conditions that fully or at least significantly restrict their rights to access the internet and/or social networking websites. I suspect that this line from Quon might find its way into a few effort in lower courts to strike down limits placed on some offenders’ use of modern means of digital communication.

CAAF has previously decided some cases about post-release restrictions on military prisoners, but none on this specific restriction. I doubt CAAF would decide an issue of post-release restrictions on the use of computers or the internet. See e.g. United States v. Pena, 64 M.J. 259 (C.A.A.F. 2007)(review of post-trial confinement and release conditions on direct appeal is limited to the impact of such conditions on the findings and the sentence. . . . As a general matter, the collateral administrative consequences of a sentence, such as early release programs, do not constitute punishment for purposes of the criminal law.).