Prison is the most common form of criminal punishment. For that reason, we know it quite well. When a high-profile figure is accused of committing a crime, we all want to know how much prison time is at stake. There is a logic to this: prison represents the most dramatic deprivation of liberty that exists in our legal system on this side of the death penalty. Its effect on those incarcerated and upon victims seeking justice is profound.
The focus on incarceration, however, can obscure other important aspects of the penal system. One commonly overlooked aspect is supervised release. This system requires that offenders fresh out of prison serve a period of conditional liberty. On the federal level, almost all offenders serve some amount of time—usually between two and five years—under supervision upon release from prison. During that time, they must follow certain rules or risk reimprisonment. The rules are known as conditions and range from fairly standard (you must not commit further crimes) to somewhat questionable (you must notify someone that you pose a risk to them if the court makes that determination) to alarmingly restrictive (you are not allowed to live with your wife because she previously committed a felony).
As you might imagine, many defendants have objected to these types of conditions. The proper forum for these objections is the sentencing hearing. At that hearing—during which the defendant is guaranteed the assistance of counsel under the Sixth Amendment—the defendant may raise any legal challenge to any conditions that are proposed in his case. Some of these challenges are successful. Some are not. But there is a growing third category: challenges that are not heard on the merits because the court determines that they are prudentially unripe for judicial review.
A case is prudentially unripe if the issues are not ready for adjudication. Courts that deny review on this basis dismiss legal challenges without reaching the merits. In some instances, then, meritorious legal claims go unvindicated—at least for a time. In theory, there is no real harm to dismissal; the answer is not “no”—it’s “not yet.” The challenger may always renew his claim later, at least, again, in theory. In the civil world, where liberty is typically not at stake, prudential ripeness has been an accepted part of our jurisprudence for some time now.
Problems arise, however, when prudential ripeness is applied in criminal cases. Unlike its civil counterpart, the criminal domain involves the potential loss of liberty. It also guarantees defendants certain inviolable rights, such as the right to a jury trial, to confront witnesses, due process, and the right to the assistance of counsel. Juxtaposed against these foundational protections, prudential ripeness begins to lack luster.
This is where we return to that third category of results in defendants’ challenges to their supervised release conditions. As I alluded to earlier, rather than issuing merits decisions, judges are increasingly determining that these challenges are unripe for review. They often reason that these defendants will serve years in prison, raising the possibility that circumstances may be different once they are released to serve their term of supervision. No harm, no foul, one might say. Surely, defendants can simply bring similar challenges once released from prison.
But as I explain in my new paper—A Violation of the Right to Counsel—while these defendants could renew their challenges upon release, they will have to do so without the benefit of constitutionally guaranteed counsel. In my paper, I argue that this is a classic violation of the Sixth Amendment right to counsel that is increasingly occurring across a broad swath of cases. The main problem is that defendants (who are overwhelmingly indigent and thus cannot afford attorneys) do not currently have a guaranteed right of counsel upon release from prison. So courts’ denials of review on ripeness grounds—which, as discussed, could dismiss meritorious legal challenges without review—leave defendants to renew any challenges alone. As my paper points out, however, defendants are not adequately equipped for this. And more fundamentally, their right to counsel in challenging their conditions has been undermined for a ripeness doctrine that is only prudential (re: discretionary) to begin with.
After diagnosing the problem, I offer several solutions. From the abstract:
First, courts should alter their approach under the prudential ripeness doctrine to account for the troubling reality that its application leaves defendants without counsel in challenging their conditions. Second, they should recognize that the Sixth Amendment requires that these challenges be heard with counsel even after the defendant is released from confinement. And third, Congress should grant defendants a statutory right to counsel under these circumstances. The Article concludes by offering a remedy: that the defendant cannot have his liberty revoked for violating a condition if his right to counsel was violated in challenging said condition.
Come for the Sixth Amendment history. Stay for the wild supervised release conditions examples. You can read the whole thing here.
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