Can Probation Officers Invent Supervised Release Conditions?
My wife and I were stunned at the probation officer's enforcement of a boilerplate condition that prohibited contact with anyone under 18 without written approval to include our daughter and to live in my own home.
Washington, D.C. (PRWEB) June 26, 2014
According to this Supreme Court petition, supervised release conditions are often listed on a "check the box" form where a judge can tick off the conditions applicable to an offense. However, when such a check box item becomes artfully interpreted by a zealous probation officer, it can lead to absurd consequences as it did for petitioner Kyle McClamma. Mr. McClamma, a first time offender convicted of a single count of possession of child pornography, was deemed by the sentencing judge to be a low risk to the community and given a downward departure in sentencing. The official filing states that when he returned home from incarceration, his creative probation officer informed him that, since he had a newborn child at home, could not be at that home since it contained a minor (his child). She demanded he evict himself from his home and not see his baby without a supervising adult present. Nowhere in the sentencing order was mention made of a ban on contact with his baby or that he could not live in his own house. Predictable mayhem ensued - lack of stable housing, financial woes, and divorce - hardly the stated goals of supervised release.
The petition in McClamma v. Remon (11th Cir. Case Number No. 13-13880) takes on this issue, asking the fundamental question - who is in charge of sentencing - judges or probation officers? McClamma also filed a Bivens action, the subject of this petition, claiming damages for his forced homelessnes and other damages. The lower court stood by the probation officer and granted her conditional immunity. This petition challenges that ruling and the subsequent appellant decision. McClamma had also filed a 2255 petition to challenge these conditions, which according to documents, stand in conflict to the majority of circuits that have found a ban on familial contact to be an unconstitutional infringement upon the home. McClamma states petition has stagnated for 2.5 years without action by the court.
According to the Supreme Court petition filed, “My wife and I were stunned at the probation officer's enforcement of a boilerplate condition that prohibited contact with anyone under 18 without written approval to include our daughter. [w]hile awaiting sentencing, the district court made it clear, at the government's request, that my child would be excluded from any contact restrictions it enforced. I actually had no idea that the judge included this restriction in his written order nearly 10 days after the sentencing. I was whisked away to prison and did not see the order until my release 31 months later. The probation officer offered no explanation as to why she chose to verbally enforce this condition the way she did; only permitting contact with my daughter provided that my wife was present. Throughout the Bivens litigation process, the probation officer has maintained that she was interpreting and executing the district court's directive which she asserts was left to her discretion. A full commentary from Kyle McClamma is available at http://www.supremecourtpress.com/Petition-of-the-Month/McClamma-Petition-June-2014.html
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McClamma’s papers offered high praise for the Supreme Court Press, “[w]hile it is understood that The Supreme Court Press does not provide legal counsel, their knowledge, experience, and quality time spent with me on this case clearly created the added credibility necessary to distinguish my petition in the competitive and elite world of a Supreme Court grant.”
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