The Scooter Libby question of the day is whether the Court can make Libby serve two years on supervised release as President Bush directed in his Executive Clemency Order, now that his prison sentence has been commuted. (For background, see Sentencing Law and Policy, Scotus Blog, Christy and TalkLeft.)

As we wait for Judge Walton's decision on whether supervised release only can be imposed on defendants who have completed a prison sentence, let's take a look at what supervised release is all about.

Supervised release made its debut in 1987 with the enactment of the Federal Sentencing Guidelines. It replaced federal parole for all crimes committed after November 1, 1987.

This was a big deal because under the parole system, people got a relatively big chunk of jail time cut from their sentence. Your sentence wasn't over, parole just allowed you to serve the last 1/3 or 1/2 (or whatever) at home.

When the sentencing guidelines came in and parole was abolished, it brought a new way of calculating the amount of time you spend in prison. Under a guideline sentence, you serve it all except for good time which is limited to 54 days a year or roughly 85% of your sentence. And you don't get any good time until you've served a full year.

Instead of being released from prison to serve the remainder of your sentence on parole, now you get released to begin a term of supervised release.

Unlike parole, a term of supervised release does not replace a portion of the sentence of imprisonment, but rather is an order of supervision in addition to any term of imprisonment imposed by the court.

It's like a second sentence, one to supervision, which begins after your jail sentence ends. That's why the law says supervised release follows a jail sentence, and why Judge Walton is concerned that if Libby doesn't go to jail in the first instance, he can't be put on supervised release when he gets out. (Judge Walton's Order directing briefs on the issue is here.)

Let's assume for the sake of argument that the Judge finds Libby can be put on supervised release even though his prison sentence was commuted. What does it mean for him? How does it affect his life?

It means he's under the supervision of a probation officer and he has to follow rules and conditions set by the officer and the court. If he’s charged with violating these rules, he gets a hearing. If the Court finds at the hearing that he was in violation of the conditions, he is subject to having his supervised release revoked and being sent to jail. Or, the Judge could continue his supervised release but impose additional conditions, like home detention and electronic monitoring.

(Sometimes the Judge can modify and enlarge conditions of supervised release even if no violation occurs. There does need to be changed circumstances, and the enlarged conditions could include home detention or spending nights or weekends in jail.)

So what are these conditions? There are standard conditions of supervised release that apply to everyone. There also may be conditions individually tailored to a particular defendant. The Judge announces the conditions on the day of sentencing and they are set out in writing shortly thereafter in an Order called "Judgment in a Criminal Case."

Any special conditions of supervised release must have some relationship to the crime the person was convicted of, his history and character or the need to deter crime or protect the offender or the public. The conditions must entail "no greater deprivation of liberty than is reasonably necessary" to provide adequate deterrence, to protect the public, and to meet the defendant's vocational and medical needs."

For example, in an embezzlement case, it's not unusual to see a condition that the person can't open new bank accounts or get a credit card without approval of their probaton officer. In a child porn case, a condition might be that the person can't use the internet.

Libby's terms of supervised release were set and announced by the Judge on the day he was sentenced. The Order is here (pdf). In addition to the general terms applicable to everyone, the Judge added two special conditions:

• He shall maintain full-time employment, the circumstances of which shall be in the discretion of the Probation Department, subject to the court's review.
• He shall perform 400 hours of community service, "as approved and directed by the Probation Department."

The standard conditions Libby will have to abide by include these (again, the full list is here (pdf):

• the defendant shall not leave the judicial district without the permission of the court or probation officer;
• the defendant shall report to the probation officer and shall submit a truthful and complete written report within the first five days of each month;
• the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer;
• the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician;
• the defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a felony, unless granted permission to do so by the probation officer;
• the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere
• the defendant shall provide access to any requested financial information.

As you can see, supervised release is no walk in the park. It's a lot better than jail, but there are significant restrictions on your freedom.

What about the 400 hours of community service the Judge imposed? While President Bush said all of the Judge's sentencing conditions should remain except the jail sentence, Judge Walton's Order make it clear that the community service is a condition of his supervised release. So, if the supervised release goes, the community service may go as well.

That would be too bad as I was having a lot of fun imagining ways in which Libby could perform his service. Let's pretend for a minute that the requirement stands. While Libby would be allowed to suggest his preferred form of community service, the final decision is up to the Probation Department.

My suggestion would be that Libby volunteer at Legal Aid, the Public Defender's Office or a local jail. Let him learn first hand how regular folks are treated. Persons who don't have a direct pipeline to the President.

What would your's be?