No need to kiss and tell: Second Circuit says defendant not required to tell probation office of "significant romantic relationship"

By Kirsten Small

Citing Mozart, Jane Austen, and Rob Reiner, the Second Circuit on Thursday overturned a sentence that included a condition of supervised release requiring the defendant, upon entry into a “significant romantic relationship,” to inform the probation office and to tell the other party about his conviction for possession of child pornography. United States v. Reeves, No. 08-2966 (2d Cir. Jan. 7, 2010).

Applying a “relaxed plain error” standard of review because Reeves failed to object to the condition but had not received prior notice of it, the court ruled that the condition was both unconstitutionally vague and not reasonably related to the purposes of sentencing.

A district court has discretion to impose additional conditions of supervised release provided those conditions are “reasonably related” to the purposes of sentencing and involve no greater deprivation of liberty than reasonably necessary. Additionally, the Due Process Clause requires that conditions of supervised release be “sufficiently clear to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.”

The Second Circuit determined that the condition failed on both counts. First, the Court ruled that the condition was impermissibly vague because “people of common intelligence (or, for that matter, of high intelligence) would find it impossible to agree on the proper application of a release condition triggered by entry into a ‘significant romantic relationship,’” noting the varying definitions of such relationships offered by The Marriage of Figaro, Mansfield Park,* and When Harry Met Sally.

The Second Circuit further held, albeit in a less entertaining manner, that the condition was not reasonably related to the purposes of sentencing, in that there was no indication in the record that Reeves was a threat to any romantic partner or a predator towards children, and the condition did not serve a rehabilitative purpose.

*While I would not go so far as to suggest that the parties seek rehearing on this point, my personal view is that Emma would have been a better choice from the Jane Austen oeuvre. See also, e.g., Clueless (Paramount Pictures 1995).