US v. Burns – Can The Government Take Away Your Right To See Your Children When Convicted Of A Sex Crime?
US v. Burns – Can The Government Take Away Your Right To See Your Children When Convicted Of A Sex Crime? – An important case was recently (2015) decided by the Tenth Circuit Court of Appeals. The case, US v. Burns – shed light on a condition of supervised release following a prison sentence that is the same condition set in almost every Colorado and other state and federal sex crimes case – a court order preventing the accused from having contact with any children, including his or her own children, under the age of 18.
James Burns was charged with and later convicted of the possession and the attempted possession of child pornography under federal law. The case from which this important law was developed focused on the conditions of Burns supervised release after doing his prison term. Mr. Burns was ordered to have no contact with minors, including his youngest daughter.
The Important Right At Stake – Contact With Your Own Children As A Convicted Sex Offender
Having completed his incarceration – Mr. Burns appealed the restriction on seeing his own daughter under these facts. He successfully argued that his constitutional right to familial association was violated and before that could occur – a Judge had to make specific findings that he actually posed a danger to his child.
The lower Court in Burns had NOT made “particularized findings before restricting Mr. Burns’s contact with his daughter” and because the right to see his own child was of constitutional dimension – this was an “intrusion” on that right and the matter was reversed and sent back to the Trial Court to litigate this issue.
Clearly Probation Or Parole Authorities Have The Right To Set Conditions Of Supervised Release..But…
The Colorado Sex Offender Management Board Standards Contain This Provision
5.500 Conditions of Community Supervision
5.510 In addition to general conditions imposed on all offenders under community supervision, the supervising agency should impose the following special conditions on sex offenders under community supervision:…
B. Sex offenders shall have no contact, nor reside with children under the age of 18, including their own children, unless approved in advance and in writing by the supervising officer in consultation with the community supervision team. The sex offender must report all incidental contact with children to the treatment provider and the supervising officer, as required by the team;
While the Government has broad discretion to impose conditions on supervised release, US v. Burns stands for the proposition that when that when a “special condition” “invades a fundamental right or liberty interest, the court must justify the condition with compelling circumstances.”
“A father has a fundamental liberty interest in maintaining his familial relationship with his [child].”
…(therefore) Mr. Burns has a fundamental liberty interest that was invaded by the special condition.”
The Federal System – Setting Conditions of Supervised Release
In the Federal System – and by analogy to the State of Colorado – the Government may impose special conditions of parole and probation. In the Federal system two conditions must be met:
First – the condition is reasonably related to the nature and circumstances of the offense and the history and characteristics of the defendant.
Second – the condition involves no greater deprivation of liberty than is reasonably necessary.
The condition must satisfy both requirements.
In this case the Tenth Circuit held that the restriction on Mr. Burns’s constitutional right of familial association would only be valid if Mr. Burns presented a danger to this daughter, S.B. The Court of Appeals further importantly held that:
“There is no evidence that Mr. Burns has abused or sexually molested children, and the record indicates that Mr. Burns has a positive relationship with four of his five children” and that there was “little to support a restriction on Mr. Burn’s contact with S.B.”
Under Federal law – and again by analogy to Colorado State law – a condition of supervised release must be reasonably related to “the nature and circumstances of the offense and the history and characteristics of the defendant.”
“The condition must involve no greater deprivation of liberty than is reasonably necessary given the needs “to afford adequate deterrence to criminal conduct,”
“to protect the public from further crimes of the defendant,” and
“to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.”
Tactical Approaches To Persuading A Judge To Lift The Family – Children No Contact Order As A Condition Of Parole Or Probation.
Colorado, like many states across the country, have continuously ramped up the containment of the sex offender population. The “no contact” restrictions which prohibit Colorado paroled sex offenders from having any contact with their own children is the kind of drastic overreaction that makes no sense on “public safety grounds” and continues to push the bounds of constitutional limits in an effort to continue punishing sex offenders long after they have been released from confinement.
A recent University of Michigan Law Review Article (Michigan Journal of Gender and Law Volume 18 | Issue 2 2012 No Contact Parole Restrictions: Unconstitutional and Counterproductive ) contains the kind of excellent reasoning that Colorado criminal defense lawyers can use to successfully argue against the no contact with children restriction on parole and on probation.
What follows are brief excerpts from the Law Review Article.
Several studies have shown that while close monitoring and restrictions while on parole before fully reintegrating into society make sense – for sex offenders – restricting contact with their own children actually may contribute to recidivism – the commission of new crimes.
“The Due Process Clause protects those fundamental rights and liberties which are objectively ‘deeply rooted in this Nation’s history and tradition.”
“The right of parents to “make decisions concerning the care, custody, and control of their children” is a fundamental right. In fact, “it is well-established [by Supreme Court and lower court precedent] that a parent’s interest in maintaining a relationship with his or her child is protected by the Due Process Clause of the Fourteenth Amendment.””
“Moreover, the Court notes that “family life, and the upbringing of children, are among associational rights this Court has ranked as of basic importance to our society, rights sheltered against the State’s unwarranted usurpation, disregard, or disrespect.”
Although this right is not absolute,”‘ absent evidence that the parent poses a threat to his child, the Court is careful not to infringe on the rights of parents to raise their children, especially when the parent has been actively involved in his child’s life up until the point of incarceration. Government intrusions into family relationships must be narrowly tailored to the interest the intrusion attempts to protect.”
“Sex offenders . . need support systems made up of people who will accept their potential for deviant behavior … and empower them to engage in healthy, law-abiding, respectful relationships and activities” and that “family members can play an important role in this endeavor.””[O]ne study [found] that “the strongest predictor of individual success [for parolees] was the perception by the person released that his family supported him.”
Studies show that the incarceration of parents, and the resulting separation of parents from their children, is “likely to perpetuate the cycle of criminal behavior and incarceration in the family.”‘ Therefore, separating children from their parents may harm, rather than promote, public safety.
The United States Supreme Court – United States v. Meyers
In the United States v. Myers, 426 F.3d 117, 123-24 (2d Cir. 2005) case Justice Sotomayor held that before a special condition limiting contact between Myers and his son could be put into place, the lower Court must first decide:
(1) what the goal of the condition is;
(2) if the goal is to protect Myers’s own child, whether an adequate record can be developed to support it;
(3) whatever the goal of the condition, whether Myers has any constitutionally protected right to a relationship with his child; and
(4) what terms of the condition are necessary and not a greater deprivation of any identified liberty interests than reasonable to achieve the sentencing goal.
A sex offender may not be deprived of contact with his child, absent an individualized showing that the deprivation is narrowly tailored to meet the legitimate goals of advancing rehabilitation or protecting that child.”
“Automatic” parole or probation conditions the kind of detailed review of an offender’s sexual offense history, psychological adjustment, motivation to change, overall behavior, response to sex offender therapy.” Colorado’s own Kim English has led the way in the need to “individualize” the Containment Approach used in Colorado to intelligently supervise each convicted sex offender as a whole person. (See, e.g., Kim English, The Containment Approach to Managing Sex Offenders, 34 SETON HALL L. REv. 1255, 1263 (2004).
In her excellent law review article she notes “the importance of learning an offender’s assault patterns, and once they are known, creating “supervision and surveillance strategies that are customized to each offender’s” patterns”.
US v. Burns – Can The Government Take Away Your Right To See Your Children When Convicted Of A Sex Crime?
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