In July, a young man named Tryan Trotter appeared before Judge Jack Weinstein of the Eastern District of New York, the judge who had previously sentenced Trotter for conspiring to distribute heroin. Trotter had already served his two-year term of imprisonment, but he appeared before Weinstein for a new reason: he was accused of violating the conditions of his supervised release by using marijuana and failing to comply with drug treatment orders. See United States v. Trotter, —F. Supp. 3d—, 2018 WL 3421313 (E.D.N.Y. July 13, 2018). Trotter was of course not the first defendant to smoke marijuana while on supervised release, but what made this case unique was Weinstein's reaction to this indisputable violation. Instead of sending Trotter back to prison or issuing some other type of sentence for the violation, Judge Weinstein terminated his supervised release.

Marijuana use is becoming increasingly decriminalized for medicinal and/or recreational use. Under many states' laws, it is legal. Nevertheless, the sale, possession, and use of the drug remain federal crimes; moreover, abstention from any drug use, including marijuana, remains a mandatory condition of federal supervised release. As Judge Weinstein recognized, because an admitted use of marijuana creates a mandatory violation of supervised release that requires incarceration, “courts may be faced with a binary choice” of “send[ing] marijuana users to jail or terminat[ing] supervision.”

This column reviews the issues that district courts confront with this particular violation, at a time when the nation's views on drug use are rapidly evolving.

Balancing Act

How should judges balance the federal supervised release prohibition against marijuana use, especially if coupled with its decriminalization in their state and local communities? One option is not to balance anything, and continue to enforce the supervised release terms without consideration of the nation's changing views. Another option is not to punish personal use marijuana violations while on supervised release by meting out minimal or no incarceration, and extending the time of supervised release.

A practical way around the binary choice, which some judges have utilized, is to defer a decision on whether a violation has occurred, and instead more closely monitor the individual with increased drug testing and oversight. But these options do not avoid the reality of having to haul a marijuana user into court, possibly over and over, in a way that may undermine the purposes of supervised release.

District court judges like Judge Weinstein have the discretion to terminate supervised release early, but that course may not be in the best interest of all defendants. There may be instances in which a judge believes that a given defendant's marijuana use while on supervised release should carry punitive legal consequences but that incarceration is not the appropriate outcome. There are certainly instances where continued supervised release is appropriate, but the purposes of supervised release would be undermined by continuously bringing a defendant back to court, or sending a defendant to prison, for repeated violations of marijuana use.

A Brief History of Supervised Release

Convicted federal defendants almost always serve time on supervised release after the completion of the incarceratory portion of their sentence. The supervised release term does not come as a surprise, as defendants are apprised of it during guilty plea proceedings and/or at sentencing. Supervised release is typically thought of as the federal system's equivalent of parole. But supervised release is not meant to be parole, or at least was not supposed to be.

Supervised release was introduced as part of the Sentencing Reform Act of 1984, as a replacement to federal parole. This shift was deliberate. Whereas parole is a continuation of the punitive sentence, supervised release was meant to be part of a rehabilitative process and help defendants to more easily return to civilian life. See United States v. Granderson, 511 U.S. 39, 50 (1994) (“Supervised release, in contrast to probation, is not a punishment in lieu of incarceration.”).

Since 1986, violations of certain conditions of supervised release automatically result in a revocation of supervised release and a likely return to prison or to inpatient drug treatment. But while the landscape surrounding marijuana use has dramatically changed in the past 32 years, the penalties for violating supervised release conditions have not. Because supervised release's statutory purpose is to rehabilitate, not to penalize, there is a growing tension at play.

Mandatory and Discretionary Conditions

District court judges are given significant discretion in crafting appropriate conditions for a defendant's supervised release, but six conditions are required in all cases. See 18 U.S.C. §3583(d). These include ordering restitution and paying fines, as well as prohibitions against drug possession or use and drug testing. Defendants who violate the drug use or possession conditions are by statute supposed to have their supervised release terms revoked and sent back to prison. See 18 U.S.C. §3583(g). The prison term can be any length up to the full, originally imposed supervised release term.

The prohibitions against drug use and possession dovetail with another mandatory condition—a prohibition against committing additional crimes. This, of course, fails to account for the rapid decriminalization of marijuana use under state and local laws across the country. Moreover, the marijuana prohibition is often at odds with the requirement that conditions be “reasonably related” to the sentencing objectives.

In general, the law allows a judge to shape appropriate parameters of supervised release based on the specific offense and the characteristics of the defendant. See 18 U.S.C. §3563(b)(9). Because of this, it is not uncommon for a defendant on supervised release to be barred from activities that are otherwise legal, such as barring a defendant with a history of alcohol abuse from consuming alcohol, or prohibiting a defendant who committed a crime of violence from possessing a firearm[1].

But this discretion is not absolute. The conditions must be “reasonably related” to the sentencing objectives. See 18 U.S.C. §3583(d). The U.S. Court of Appeals for the Second Circuit has addressed this issue[2], most recently in reviewing the conditions of supervised release for a defendant previously convicted of conspiring to commit bank fraud and who had previously violated his supervised release by driving without a license and failing to make restitution payments. See United States v. Betts, 710 Fed. Appx. 53, 53-54 (2d Cir. 2018).

Despite the underlying conviction and the subsequent violations, the court struck down a condition of supervised release that banned the defendant from having any alcohol, noting that: “Neither defendant's underlying crime nor any of the conduct contributing to his violations of supervised release involved the use of alcohol.”

It is not unreasonable to argue that marijuana use and possession should be treated the same way: when marijuana use or possession relates to the underlying offense, it is logical to construct some conditions of supervised release to deal with it, such as a blanket prohibition, mandatory testing, or counseling. But where a defendant's underlying crime is unrelated to marijuana, is it sensible to haul that person into court for smoking marijuana? Is the answer different if the state or local jurisdiction at hand has decriminalized marijuana?

The Evolution of Marijuana Laws

The legislation that authorizes the current sentencing and supervised release regimen was enacted at a time when the prevailing views on drug use, including marijuana, were solidly in favor of prosecuting its users. Since then, the public's view on marijuana use has changed dramatically. For instance, the Pew Research Center found that in 2018, 61 percent of Americans believed that marijuana use should be legalized, almost twice the 31 percent that thought so as recently as 2000[3].

The change in the national consensus about marijuana usage mirrors revisions to state and local laws. Currently, 21 states allow for the medicinal use of marijuana. Nine states and the District of Columbia permit some level of recreational marijuana use[4]. Even in states where the drug remains technically illegal, some states and cities have announced decisions not to prosecute marijuana-related crimes. For example, on July 31, 2018, Manhattan District Attorney Cyrus Vance announced the implementation of a “Decline-to-Prosecute” policy, in which the Manhattan D.A.'s office would stop criminally prosecuting people for marijuana possession and use[5].

Nevertheless, marijuana remains a controlled substance under federal law. This does not appear likely to change any time soon, and the Trump administration has announced its clear intention to continue to enforce federal drug laws, even with respect to marijuana[6].

Discretion to Terminate Supervised Release

A district judge faced with a defendant who violates the conditions of her supervised release by using marijuana has an alternative to revoking supervised release and sentencing her: The judge has discretion to terminate the supervised release, so long as the judge “is satisfied that such action is warranted by the conduct of the defendant released and the interest of justice.” See 18 U.S.C. §3583(e)(1). Termination is an alternative for judges who conclude that prison or another form of punishment for violations of supervised release would not advance the stated goals of rehabilitation.

Judge Richard Posner neatly summed up the dilemma: “We have our doubts that imprisonment is an appropriate treatment for a marijuana habit…. The 29 months that he served in prison beginning in 2009 did not break him of his habit, what is the basis for thinking that 14 more months in prison will?” See United States v. Smith, 770 F.3d 653, 655-56 (7th Cir. 2014).

Judge Weinstein resolved Trotter's case by terminating his supervised release. He concluded that Trotter was “trying to lead a productive life” but was held back by the “chronic problem” of marijuana addiction. He determined that sending Trotter back to prison would “probably end up in the almost endless cycle of supervised release and prison.”[7] Trotter testified in court that he did not intend to stop using marijuana, as it helped to keep him calm and “on the right path.”[8] Weinstein was also influenced by the fact that Trotter had been working and otherwise maintained a clean record while on supervised release.

This option of terminating supervised release may alleviate the problem for some defendants, but it is not appropriate in all circumstances, even where revocation and incarceration seem unjust. Many judges may prefer keeping someone on supervised release because of the program's other benefits—like salutary interactions with the U.S. Probation Office, mandatory counseling and testing, and the ability to monitor the individual's rehabilitation progress post-incarceration—but are nonetheless forced into a binary choice of prison or the termination of supervised release.

Outlook

Judge Weinstein highlighted that supervised release rules are behind the times with respect to marijuana laws. District court judges may attempt to work around the statute by deferring final determinations or through other creative means. However, unless and until Congress revises the law, judges may be forced into a non-ideal “binary choice” of terminating supervision or sending defendants back to prison for using or possessing marijuana.

Steven M. Witzel is a partner of Fried, Frank, Harris, Shriver & Jacobson and chair of the white-collar defense, regulatory enforcement and investigations practice. Andrew B. Cashmore is an associate at the firm.

ENDNOTES:

1. See United States v. Guess, 216 F. Supp. 3d 689, 698-99 (E.D. Va. 2016) (“[A] court may also fashion terms of supervised release for a defendant that include conditions that do not apply to the general population.”).

2. See also United States v. Reeves, 591 F.3d 77 (2d Cir. 2010) (a condition of supervised release that required a defendant convicted of possession of child pornography to notify the Probation Department if he entered into a romantic relationship and to tell his partner about his conviction was not “reasonably related” to the sentencing objectives).

3. See Abigail Geiger, About Six-in-Ten Americans Support Marijuana Legalization, Pew Research Center, Jan. 5, 2018, available at http://www.pewresearch.org/fact-tank/2018/01/05/americans-support-marijuana-legalization/.

4. See Melia Robinson, This Map Shows Every State that has Legalized Marijuana, Business Insider, available at https://www.businessinsider.com/legal-marijuana-states-2018-1. Medical marijuana use is legal in Arizona, Arkansas, Connecticut, Delaware, Florida, Hawaii, Illinois, Maryland, Michigan, Minnesota, Montana, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, and West Virginia. Recreational and medical marijuana use is legal in Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Vermont, and Washington. Michigan will be voting on allowing recreational use of marijuana this November. Kathleen Gray, Michigan Approves Marijuana Legalization Vote for November, Detroit Free Press, available at https://www.freep.com/story/news/local/michigan/2018/04/26/michigan-recreational-marijuana-legalize/551936002/.

5. See Press Release, Manhattan District Attorney's Office, Tomorrow: D.A. Vance Ends Prosecution of Marijuana Possession and Smoking Cases, available at https://www.manhattanda.org/tomorrow-d-a-vance-ends-prosecution-of-marijuana-possession-and-smoking-cases/.

6. See Matt Zapotosky, “Use of Legalized Marijuana Threatened as Sessions Rescinds Obama-era Directive that Eased Federal Enforcement,” Washington Post, Jan. 4, 2018, available at https://www.washingtonpost.com/world/national-security/sessions-is-rescinding-obama-era-directive-for-feds-to-back-off-marijuana-enforcement-in-states-with-legal-pot/2018/01/04/b1a42746-f157-11e7-b3bf-ab90a706e175_story.html?utm_term=.66f23c85f7f4.

7. Trotter, at 2018 WL 3421313, at*3, *19. Some district court may be wary of exercising leniency and terminating Supervised Release early, particularly in light of the risks of recidivism. Indeed, Trotter was arrested on charges of credit card forgery about two weeks after Judge Weinstein issued his decision to terminate Trotter's Supervised Release. Emily Saul, Ex-Con at Center of Marijuana Jailing Debate Arrested Again, New York Post, July 19, 2018, available at https://nypost.com/2018/07/19/ex-con-at-center-of-marijuana-jailing-debate-arrested-again/.

Id. at *19.