Mental Health, Sentencing

United States v. Carlin, 712 F. App’x 365, (5th Cir. 2017); United States v. Stephens, 699 F. App'x 343 (5th Cir. 2017)
United States v. Wesberry, 709 F. App’x 895 (10th Cir. 2017)

The following three cases each involved defendant challenges to the imposition of mental health treatment as part of their sentencing. The cases are presented here in brief because of their relatively similar, short opinions that do not present notable fact patterns or developments in jurisprudence.

United States v. Carlin, 712 F. App’x 365, (5th Cir. 2017); United States v. Stephens, 699 F. App'x 343 (5th Cir. 2017).

Both Carlin and Stephens essentially concerned a misstatement of a condition of sentencing. In both cases, the court ordered that the defendant “participate in a mentalhealth program as deemed necessary and approved by the probation officer,” thus impermissibly delegating sentencing authority to the probation officer. In both cases, the Fifth Circuit affirmed a modified sentence that imposed mental health treatment, with details of the treatment to be supervised by the probation officer.

United States v. Wesberry, 709 F. App’x 895 (10th Cir. 2017).

In Wesberry, the defendant challenged the imposition of mental health treatment as part of his sentence under the U.S. Sentencing Guidelines, arguing that the condition was unreasonable because it bore no relation to the goals of the guidelines. The Tenth Circuit reviewed his claim for plain error because he had not challenged the condition in district court. The court found that there was no “well-settled” law supporting his challenge, thus there was no clear error to be found in the lower court’s sentencing decision. In addition, the court noted that the Guidelines’ policy statement recommends requiring participation in a mental health program if a court has reason, based on particularized findings, to believe the defendant is in need of psychological or psychiatric treatment; the court noted the district court’s reliance on presentence reports documenting Wesberry’s diagnoses and medications as meeting the requirement of particularized findings.

Found in DMHL Volume 37, Issue 1

Psychotherapist-Patient Privilege in California Protects Psychotherapy Records from Disclosure Even When Therapy Only Commenced Because It Was a Condition of Probation

Story v. Superior Court, 135 Cal. Rptr. 2d 532 (2003); 72(2) U.S. Law Week 1032 (July. 15, 2003)

A California Court of Appeal held that California's psychotherapist-patient  privilege may be asserted to block the release of a criminal defendant's  psychotherapy  records even though those records pertain to therapy into which the defendant entered only because it was made a condition of probation. After the defendant was charged with murder during the course of a rape and burglary, the state sought a court order to release the defendant's psychotherapy records.  In a case of first impression in California, the court ruled the defendant was a "patient" for purpose of this privilege regardless of why he entered treatment and was therefore entitled to raise this privilege in blocking the state's request for records...

Found in DMHL Volume 23 Issue 1

Mandatory Disclosure of Sexual History in Conjunction with a Treatment Program for a Convicted Sexual Offender as a Condition of Probation Struck Down

United States v. Antelope, 395 F.3d 1128 (9th Cir. 2005)

The courts continue to wrestle with the nature of the conditions that can be placed on sexual offenders who are permitted to return to the community.  An individual convicted of possessing child pornography after he ordered a child pornography video over the Internet was initially sentenced to five years probation....

Found in DMHL Volume 24 Issue 2

Washington Supreme Court Holds Insanity Acquittee Must Be Found Dangerous before Conditional Release May Be Revoked; Preponderance of Evidence Is Appropriate Standard

State v. Bao Dinh Dang, 178 Wash.2d 868, 312 P.3d 30 (2013)

The Washington Supreme Court has upheld the trial court’s revocation of an insanity acquittee’s conditional release based upon its finding of dangerousness. In so doing, it reversed the decision of the Washington Court of Appeals holding that an acquittee’s failure to adhere to the terms and conditions of his conditional release is sufficient alone to justify revocation. The Supreme Court also determined that a preponderance of the evidence standard of proof is sufficient to support revocation. Finally, the Court held that the trial court must find good cause to admit both documentary and testimonial hearsay evidence in a limited due process rights hearing such as conditional release revocation.

In November 2006, Bao Dinh Dang walked up to a gas pump at a Chevron station in Seattle, set fire to a newspaper, and attempted to pump gas in order to ignite the gas supply. The station attendant successfully knocked the newspaper out of Dang’s hand with a windowwashing squeegee while a customer called the police. Dang was arrested and charged with attempted arson. At trial, Dang raised the insanity defense. The trial court acquitted Dang by reason of insanity, and in the same order, released him on conditional release. As part of his conditional release, the court required Dang to report to a Department of Corrections community corrections officer, live with his mother in Washington, not possess explosives, break additional laws, or drink alcohol, and seek psychiatric treatment at Harborview Medical Center and follow all treatment recommendations. Dang’s conditional release was further contingent on his mental illness being in a state of remission and on his having no significant deterioration in his mental condition.

Dang’s conditional release proceeded without incident until the summer of 2008 when the trial court permitted him to travel to Vietnam for one month. Following his return from Vietnam, Dang’s community corrections officer and Harborview case manager noticed he was exhibiting signs of depression and paranoia. Dang’s case manager reported that Dang stated he was not taking medication and felt like setting a gas station on fire. He told his community corrections officer he wanted to “do something big.” The corrections officer and case manager also noticed that Dang was experiencing delusions concerning his mother’s power and control over him. When Dang was taken to Harborview Mental Health Services, he recanted his statements and was released.

The State then moved the court for a bench warrant for Dang’s arrest and commitment pending a hearing on his conditional release. The court issued the warrant, ordering Dang’s commitment to Washington’s Western State Hospital for evaluation and treatment. During this period, several reports were issued concerning Dang’s mental health outlining his treatment and recommending he not be released due to his risk for future violence and criminal behavior.

After extensive evaluations, the State moved to revoke Dang’s conditional release. At the hearing, the court heard testimony from the community corrections officer, case manager, a Department of Social and Health Services psychologist, Dang’s mother and Dang. Several of the witnesses testified that his mental health had deteriorated and he should remain hospitalized. The trial court also permitted Dang’s case worker and a community corrections officer to testify about statements made by Harborview Medical Center’s mental health providers about his desire to blow up a gas station. Following the hearing, the court revoked Dang’s conditional release and while his appeal was pending, issued findings of fact and conclusions of law finding, among other things, that Dang’s mental disease had not remained in a state of remission and his release would present a substantial danger to others and jeopardize public safety.

The Court of Appeals affirmed the revocation of Dang’s conditional release based on Dang’s non-adherence to the terms and conditions of his release but found a specific finding of dangerousness was not required. That Court also determined that preponderance of the evidence was the appropriate standard of proof in a conditional release revocation hearing. The Court of Appeals also held that in cases limiting due process rights to confront and cross-examine witnesses, such as parole revocation hearings, only documentary hearsay evidence was prohibited but hearsay could be admitted through live testimony.

The Washington Supreme Court affirmed the Court of Appeals, holding that Dang’s conditional release was properly revoked by the trial court based upon its finding of his actual dangerousness. But the Supreme Court found that failure to adhere to the terms and conditions of conditional release alone are not sufficient to revoke conditional release. A specific finding of dangerousness before an acquittee may be confined is required. In so holding, the Court relied on prior United States Supreme Court cases, including O’Connor v. Donaldson, 422 U.S. 563 (1975), that held a finding of mental illness alone is not sufficient to confine a person against his will if he is not dangerous to anyone and can live safely in freedom. Similarly, Foucha v. Louisiana, 504 U.S. 71 (1992), held that an insanity acquitted may continue to be confined as long as he is both mentally ill and dangerous, but no longer. The Court reasoned that the same dangerousness criteria that applies in the context of civil commitment and continued commitment of insanity acquittees should also apply in the context of conditional release revocation.

The Supreme Court next determined that a preponderance of the evidence standard is appropriate in conditional release hearings even though Dang argued that a clear, cogent and convincing evidentiary standard should be applied. The court found that there are significant differences between civil commitment and commitment following an insanity acquittal. In Jones v. United States, 463 U.S. 354 (1983), the United States Supreme Court found that the insanity acquittee himself raises the insanity defense and therefore a diminished concern for a risk of error in confining the acquittee exists. The criminal conduct which the acquittee acknowledges is also not within the range of generally accepted conduct. Because there is less risk of error in confining an individual in the insanity acquittee context than in the civil commitment context, the lesser standard of proof of preponderance of the evidence is sufficient.

In reviewing the issue of whether hearsay evidence may be introduced at a conditional release revocation hearing, the Court considered various cases involving limited due process hearings where there was good cause to limit the individual’s due process rights to confront and cross-examine witnesses, such as Morrissey v. Brewer, 408 U.S. 471 (1972), involving parole revocation. Other similar cases involved sentencing modification hearings due to violations of community custody terms and conditions, and revocation of special sex offender sentencing alternatives. Similarly, a trial court’s revocation of an insanity acquittee’s conditional release implicates a conditional liberty interest dependent on the observance of special terms and conditions. Under these situations, hearsay evidence may be considered if the trial court finds good cause to forgo live testimony.

In this case, the trial court permitted Dang’s case manager and community corrections officer to testify about statements made by other Harborview mental health providers about his desire to blow up a gas station. The trial court did not engage in a good cause analysis of the difficulty and expense of procuring live witnesses or the reliability of the evidence, which the Supreme Court found was error. The Court, however, found that this was harmless error because there was enough direct evidence in the record to support its finding of dangerousness. Nonetheless, the Supreme Court found no distinction between documentary evidence and live testimony evidence as the court of Appeals did, and held in both instances that the trial court must articulate a good faith basis for considering either type of evidence.

Found in DMHL Volume 33 Issue 2

Application of Section 504 of the Rehabilitation Act

Flynn v. Distinctive Home Care, Inc., 812 F.3d 422 (5th Cir. 2016)

Section 504 authorizes employment discrimination suits by independent contractors.

Background: After Congress enacted the Americans with Disabilities Act (“ADA”) in 1990, the Senate Subcommittee on Disability Policy held a hearing out of concern over potential inconsistences between the Rehabilitation Act and the ADA. In response to the “need to include the philosophies embodied in the ADA in the Rehabilitation Act,” Congress added subsection (d) to Section 504 of the Rehabilitation Act. Subsection (d) incorporated by reference parts of the ADA, for example: the standards used to determine whether Section 504 has been violated in a complaint alleging employment discrimination “shall be the standards applied under title I of the Americans with Disabilities Act of 1990.” Most federal circuit and district courts agree that, under Title I of the ADA, a plaintiff may sue a defendant only if the plaintiff is an employee, not an independent contractor. In Flynn, the central question was whether Section 504(d) incorporated this limitation. The district court held that it did, and thus Flynn—an independent contractor with Distinctive Healthcare staffing—could not proceed with her employment discrimination claims.

Holding: The Fifth Circuit vacated the judgment of the district court and concluded that Section 504 of the Rehabilitation Act authorizes employment discrimination suits by independent contractors. 

Notable Points: 

The Rehabilitation Act adopts only the substantive standards of Title I of the ADA, not the definition of who is covered under the Rehabilitation Act: The Fifth Circuit held that Section 504(d) of the Rehabilitation Act does not incorporate Title I of the ADA in its entirety. Specifically, the Rehabilitation Act uses the ADA’s standards only to determine whether the Rehabilitation Act has been violated. The Rehabilitation Act does not, however, state that the ADA standards determine whether an employer is subject to the Rehabilitation Act. The Court held that the definition of “employer” under the Rehabilitation Act is “far broader” and covers “all of the operations of covered entities, not only those related to employment.” Thus, the Rehabilitation Act adopts only the substantive standards for determining “what conduct violates the Rehabilitation Act, not the definition of who is covered” (emphasis in original).

Found in Found in DMHL Volume 35, Issue 1

Criminal Sentencing

United States v. Poulin, 809 F.3d 924 (7th Cir. 2016), reh'g denied (Feb. 22, 2016)

Conditions of supervised release were procedurally unreasonable because they were vague and lacked explanation.

Background: After pleading guilty to receipt and possession of child pornography, Matthew Poulin was sentenced to two concurrent 115-month terms of imprisonment and two concurrent life terms of supervised release. Poulin appealed, contending that the district court had erred by not providing reasons for imposing the maximum term of supervised released and that the record lacked justification for the imposition of special conditions (including the requirement of mental health treatment). The Seventh Circuit vacated the original sentence and remanded to the district court for resentencing. On remand, the district court resentenced Poulin to concurrent 84-month terms of imprisonment and a 10-year term of supervised release, including nine standard conditions and seven special conditions. Poulin brought a successive appeal challenging several of the conditions.

Holdings: The Seventh Circuit again vacated the standard conditions of supervised release imposed below, basing its reasoning largely on a line of cases decided after the district court had issued its resentencing judgment. While acknowledging that the district court did not “have the benefit of guidance provided by [the more recent cases],” the Court held that the disputed conditions were not “properly-noticed, supported by adequate findings, and well-tailored to serve the purposes of deterrence, rehabilitation, and protection of the public” (citing United States v. Kappes, 782 F.3d 828 (7th Cir. 2015).

Found in Found in DMHL Volume 35, Issue 1

Criminal Sentencing

United States v. Garcia, No. 15-40252, 2016 WL 386141 (5th Cir. Feb. 1, 2016) (per curiam)

Special condition of sentence requiring mental health treatment under supervised release agreements failed to meet statutory standards for probation conditions.

Background: After receiving a sentence from the trial court that included a requirement to participate in a mental health treatment program, Ruben Garcia appealed his sentence to the Fifth Circuit. Garcia contended that the district court had committed reversible error by failing to explain “how the mental health condition was reasonably related to the pertinent statutory factors.” Additionally, he argued that the record did not justify an inference that such a condition was reasonable.

Holding: Because Garcia did not challenge the mental health condition in the trial court, the appellate court’s review was limited to plain error. Even under this standard, the Fifth Circuit vacated the condition of Garcia’s supervised release that required him to participate in mental health treatment, and remanded the case to the district court for reconsideration. According to the Fifth Circuit, the district court abused its discretion by failing to explain how the special condition (i.e. mental health treatment) was reasonably related to all statutory factors. Without any clear explanation for the imposition of a special condition and a lack of implied justification in the record, the Fifth Circuit held that it was “incumbent upon [them] to vacate [the judgment below].” Because it was not obvious from the record that there was a basis for the mental health condition (and because such a condition affects Garcia’s substantial rights), the Fifth Circuit held that the lower court had committed plain error.

Found in Found in DMHL Volume 35, Issue 1

Sex Offenders; Conditions of Probation

Vermont v. Cornell, 2016 VT 47 (Vt. 2016)

Vermont Supreme Court rules that certain probation conditions placed by the trial court on a convicted sex offender improperly infringe on the offender’s liberty, privacy and autonomy rights.

Background: Owen Cornell was convicted of lewd and lascivious behavior with a 12- year-old boy in 2013. His prison sentence was suspended and multiple probation conditions were imposed. Cornell appealed the conditions, arguing that the “boilerplate” restrictions were invalid for a number of reasons (e.g., not sufficiently individualized, in violation of due process rights, impermissible delegation of authority to his probation officer). On remand, the trial court took consideration of additional information submitted by Cornell and testimony from his probation officer, then issued 21 new probation conditions. Cornell objected to six of the conditions, arguing that four of them had already been deemed unlawful in previous cases and two of them infringed on his liberty, privacy and autonomy rights under the U.S. and Vermont Constitutions.

Holding: The Vermont Supreme Court affirmed two conditions (prohibition on violent or threatening behavior; prohibition from places where children are known to congregate) and remanded as to four conditions. The Court found the delegation of authority to the probation officer to dictate treatment requirements to be overbroad. The Court found the condition of requiring probation officer approval for living and working location to be insufficiently specific to Cornell. The Court also agreed with Cornell that the condition requiring him to give search and seizure privileges to his probation officer was unconstitutional because it did not require reasonable suspicion for such searches. Finally, the Court found the condition imposing a blanket restriction on computer use to be overly restrictive, given that Cornell did not utilize any such technology in his offense. Concerning the computer restriction condition, the Court summarized, “We do not see a sufficient justification for such a sweeping restriction, which would render nearly all the activities of life incalculably difficult in the modern age, when such a condition would not have prevented the crime of which [a defendant] was convicted” (internal quotations removed, quoting U.S. v. Barsumyan, 517 F.3d 1154 (9th Cir. 2008)).

Notable Points:

Insufficiency of proof for “boilerplate” conditions: Prior to considering the specific challenges, the Court engaged in a brief excursus to note that the State’s “proof” concerning the appropriateness of probation conditions was insufficient, in that it merely rested upon the testimony of the probation officer that Cornell was a sex offender.

Balancing Fourth Amendment rights in sex offender cases: In the latter portion of the opinion the Court addressed the conditions that Cornell had argued infringed his liberty, privacy and autonomy rights. The Court discussed the balance of interests, including somewhat lessened rights of the probationer, but the overall need to narrowly tailor such conditions in order to avoid infringing liberty and privacy interests. The Vermont Supreme Court noted that some states (e.g., California, Indiana) have allowed suspicionless searches of probationers (and parolees), but that Vermont would continue to require reasonable suspicion for such searches.

Found in DMHL Volume 35, Issue 2

Sex Offender; Probation Violation

Zebbs v. Com., 785 S.E.2d 493 (Va. Ct. App. 2016)

A defendant whose probation requirements necessitate a sex offender program may be held in violation of his probation when he refuses to abide by a central requirement of the program, namely admitting to the misconduct for which he was convicted. Defendant who entered an Alford plea is treated as if he entered a guilty plea after conviction; therefore, an admission of guilt to the crimes he was charged with does not invoke Fifth Amendment protection.

Background: Defendant Zebbs entered an Alford plea, pleading guilty to forcible sodomy, among two other charges. An Alford plea is treated the same as a guilty plea after the defendant is tried and convicted. Zebbs was required to successfully complete a sex offender treatment program to satisfy the terms of his probation, among other terms. Admitting to the offense for which the offender received probation is a mandatory part of the program. Zebbs refused to admit to his misconduct, arguing that it was a violation of his Fifth Amendment right to require him to verbally incriminate himself and punish him for not doing so. The circuit court found Zebbs in violation of his probation, and he subsequently appealed.

Holding: A valid Fifth Amendment claim must include an admission that may carry the risk of incrimination and a substantial penalty for not giving the incriminating testimony. There was no risk of incrimination here because the misconduct Zebbs was required to admit to had already been litigated and thus an admission after the fact would not give rise to incrimination. Double jeopardy would bar the prosecution of Zebbs for admitting to misconduct for which he had been tried and convicted. Therefore, the Fifth Amendment did not protect Zebbs from cooperating with the sex offender treatment terms and the circuit court did not err in finding that he violated his probation by not completing the treatment.

Found in DMHL Volume 35, Issue 2

Imposition of Probation Conditions Requiring Sex Offender Treatment

Villanueva v. State, 41 Fla. L. Weekly 319 (2016)

Florida Supreme Court rules that probation condition requirement that defendant attend sex offender therapy was invalid because it did not bear a “reasonable relation” to rehabilitation where defendant was charged with lewd and lascivious molestation but convicted of misdemeanor battery.

Background: Villanueva was charged with one count of lewd and lascivious molestation of a child older than 12 but less than 16 years old. The victim was Villanueva’s daughter, who testified that Villanueva touched her breast and buttocks on three separate occasions. The jury acquitted Villanueva of lewd and lascivious molestation, but found him guilty of a lesser included offense of misdemeanor battery. The trial judge sentenced Villanueva to 90 days in jail followed by one year of probation. A special condition of the probation was a requirement that Villanueva participate in sex offender therapy pursuant to a Florida statute. That statute set probation standards including sex offender treatment for certain enumerated offenses, which included the charge of lewd and lascivious molestation, but not misdemeanor battery. Villanueva appealed, raising the issue of whether sex offender therapy was restricted by statute to only the enumerated offenses and whether the imposition the condition in this case comports with probation standards announced by the Florida Supreme Court in Biller. The district court upheld the sex offender treatment imposed by the trial court.

Holding: The Florida Supreme Court ruled that sex offender treatment was not limited to certain enumerated offenses, overruling a lower court decision in Arias v. State, 65 So. 3d 104 (Fla. Dist. Ct. App. 2011). The court also ruled that the imposition of sex offender treatment in the present case was invalid under Biller, because the condition did not rationally relate to future criminality.

Notable Point:

Rational relation to future criminality: The court explained that Villanueva’s conviction of the lesser included offense of misdemeanor battery indicated that the touching was not committed in a lewd and lascivious manner; therefore, he should not be a candidate for sex offender treatment. The court also relied on the fact that Villanueva did not have any prior convictions.

Found in DMHL Volume 35, Issue 3

Probation Supervision of Sex Offenders and Delegation of Judicial Authority

United States v. Morin, No. 15-50197, 2016 U.S. App. LEXIS 14549 (5th Cir. Aug. 8, 2016).

Fifth Circuit rules District Court’s probation requirement that the offender comply with “unspecified lifestyle restrictions” imposed by the offender’s therapist during supervised release constitutes an unauthorized delegation of judicial authority and the oral sentencing pronouncement controls when in conflict with the written record.

Background: Robert Morin pleaded guilty to failing to register as a sex offender as required by the Sex Offender Registration and Notification Act (SORNA). The district court sentenced Morin to 33 months of imprisonment and five years of supervised release. Morin challenged two conditions of his supervised release. He contended that the district court impermissibly delegated judicial authority by directing that Morin comply with unspecified "lifestyle restrictions" that might be imposed by a therapist throughout the term of his supervised release. He contended that the breadth of this requirement permitted a therapist, not the court, “to decide the nature and extent of the punishment imposed.” Morin additionally argued that the written requirement that he abstain from the use of alcohol during his term of supervised release was not included in the district court's oral pronouncement of the sentence, making it invalid. Holding: The Fifth Circuit agreed and vacated the two challenged conditions.

Notable Point:

Scope of conditions of supervised release: The Fifth Circuit emphasized that only courts have the authority to impose conditions of supervised release beyond the mandatory restrictions. The court agreed that the manner and means of therapy during treatment may be devised by therapists. Therapists and other non-judicial actors could forward to the court recommendations for new conditions.

Found in DMHL Volume 35, Issue 3