by Douglas Ankney

The U.S. Court of Appeals for the Fifth Circuit held that a district judge may not delegate to a probation officer the decision to require inpatient, rather than outpatient, treatment because of the liberty interests at stake.

Abran Martinez tested positive for cocaine use while on supervised release imposed as a result of an earlier conviction for unlawful escape. At a revocation hearing, the U.S. District Court for the Southern District of Texas imposed upon Martinez a term of 10 months’ reimprisonment followed by one year of supervised release. The district court later imposed a written condition that stated: “You must participate in an inpatient or outpatient substance abuse treatment program and follow the rules and regulations of that program. The probation officer will supervise your participation in the program, including the provider, location, modality, duration, and intensity. You must pay the costs of the program, if financially available.”

Martinez appealed, arguing that the words “inpatient or outpatient” impermissibly delegated judicial sentencing authority to Martinez’s probation officer because inpatient drug-treatment involves a significant deprivation of liberty.

The Fifth Circuit observed that, because the district court did not orally pronounce the condition of supervised release at the revocation hearing, Martinez had no opportunity to object. Therefore, the Court would review for abuse of discretion instead of plain error. United States v. Franklin, 838 F.3d 564 (5th Cir. 2016) (the court reviewed for abuse of discretion because the defendant had no opportunity to object to the discretion given to a probation officer to require mental-health treatment).

The Court explained that “[w]hile probation officers may ‘manage aspects of sentences’ and oversee the conditions of supervised release, a probation officer may not exercise the ‘core judicial function of imposing a sentence, including the terms and conditions of supervised release.’” United States v. Barber, 865 F.3d 837 (5th Cir. 2017). That duty belongs to the court and may not be delegated. Id. Additionally, “[c]onditions that touch on significant liberty interests are qualitatively different from those that do not.” United States v. Mike, 632 F.3d 686 (10th Cir. 2011).

Inpatient treatment differs from outpatient treatment because the patient cannot leave but must remain at the treatment facility day and night throughout the duration of the treatment. This significant curtailment of liberty prohibits characterizing inpatient treatment as one of the managerial details that could be entrusted to a probation officer.

The Court concluded that a decision to restrict a defendant’s liberty to that extent must remain with the judge.

Accordingly, the Court vacated the condition permitting the probation officer to elect between inpatient and outpatient treatment and remanded for further proceedings consistent with the Court’s opinion. See: United States v. Martinez, 979 F.3d 271 (5th Cir. 2020).

Editor’s note: The Court observed: “Three of our sister circuits have addressed this question in published opinions, and each has decided that the court may not delegate the decision to require inpatient treatment to a probation officer because of the significant liberty interests at stake in confinement during inpatient treatment.” United States v. Matta, 777 F.3d 116 (2d Cir. 2015); United States v. Mike, 632 F.3d 6868 (10th Cir. 2011); United States v. Esparza, 552 F.3d 1088 (9th Cir. 2009).

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