Let me say at the outset that I have little to no knowledge of the practical details of criminal law. I read the various cases, I know the underlying substantive offenses, and I generally know everything one would expect from an appellate perspective. But when it comes to practical things like where one serves one's sentence, what attitude probation officers take, and similar details, I'm utterly clueless. No experience in that realm.
Let me also say that, in particular, I know next to nothing about the intricacies of the State of Washington as regards these matters. I've been there. Beautiful place. But I understand that they do there own thing there, in a variety of different areas. Don't know the details. Probably never will. (Assuming, as is quite likely the case, that I will never elect unsuccessfully to mule drugs from British Columbia to Seattle.)
So with those (important) caveats aside:
Is this really right?
Judge Kleinfeld's opinion certainly reads persuasively. I totally get it. The question is whether a federal defendant with a previous state conviction for driving with a suspended license gets his criminal history bumped up a point when his sentence for that previous crime was "90 days custody imposed with 84 days suspended for 24 months." The sentencing guidelines say, in relevant part, that your history gets bumped if you spend more than 30 days in custody -- everyone agrees that doesn't apply -- or you're on probation for more than a year. Does having your sentence suspended for two years count?
Let me be honest. Let me forthrightly concede my ignorance. Before reading this opinion, I had failed to recognize that suspended sentences were "suspended" for particular periods of time. Instead, I thought they were simply "suspended." Like being suspended from school. We imposed the sentence, perhaps as required by law. But didn't make you serve it. Just being nice to you.
If that was what a suspended sentence actually was, the case would be easy. Obviously that doesn't count as probation. It's just time not served.
I realize now that my prior understanding doesn't really make much sense. Maybe that's still the law somewhere. I have a vague recollection, for example, that a speeding ticket I once received when I was 16 resulted in a "suspended" sentence. (P.S. -- Thank you for that, Mike Arif. Mike went on to defend D.C. sniper Lee Malvo, in what was undoubtedly a letdown from Mike's high-profile representation of me in traffic court many years earlier.) Maybe that's where my understanding of the concept arose.
But now I get it. It's "suspended" for a period of time, and if you do something bad during that period, it can come back and be reimposed. Makes sense.
But I gotta say: That sounds an awful lot like probation. Which is the exact same concept. You do something wrong during this period and you go back to jail. Same concept, right?
Which is why the U.S. thinks that, yeah, 24 months of "suspension" counts as 24 months of "probation". You do something wrong, your sentence gets served. Same deal.
Judge Kleinfeld has a facially persuasive response to that. A distinction that makes some sense. He says -- and the rest of the panel agrees -- that probation generally comes with conditions. Things that restrict your preexisting liberty. Like mandatory reporting to your P.O. Not going out of state. Not hanging out with gang members. Things like that. By contrast, with a suspended sentence (at least of the type here), the only thing you can't do is commit another crime. Which you're not at liberty to do anyway. So, the Ninth Circuit holds, that's not "probation" so don't count against your criminal history.
There's a lot to be said for that. It makes for a decent distinction. And it obtains the assent of all of the members of the panel, a reasonably diverse one at that.
I nonetheless wonder if it's right.
There are two problems with this position. Judge Kleinfeld recognizes one of them. Albeit buried in a footnote. Lots of other circuits have apparently held to the contrary. The Sixth. The Seventh. The Eighth. Indeed, every circuit to have addressed the issue appears to have decided that a suspended sentence can indeed count as probation. Now, Judge Kleinfeld says that some of these same circuits have held that, for other states within them, certain types of suspended sentences may not count. Okay. So maybe there's some split. But it does seem that (1) the Ninth Circuit's view might be a minority one, and (2) there may be some basis to think that Judge Kleinfeld's purported distinction might not be as persuasive as otherwise thought, as other circuits apparently aren't on board.
So I tried to think of why other circuits might go the other way. Which brings me to the second, more fundamental, problem. One that makes me wonder whether Judge Kleinfeld's position is the right one. (As well as left me wishing he'd have at least addressed the potential counterarguments; that way, I could have a more informed view of the matter, rather than being forced to come up sua sponte with the competing positions that created the circuit split.)
Here's my basic problem. Is the distinction actually a difference?
It's true, for example, that probation often comes with the conditions that Judge Kleinfeld discusses. But not always. Probation's sometimes "unsupervised". Especially in this era of pervasive budget cuts, in which taxpayers often don't feel like paying for things. What about someone sentenced to probation who doesn't have to report to a P.O.? Those people clearly have been sentenced to probation, after all. The court expressly did so. Yet under the Ninth Circuit's view, it seems that unsupervised "probation" wouldn't count as "probation". Yet that makes no sense. Clearly probation is probation.
Judge Kleinfeld likely has a decent response. He'd likely say that even with unsupervised probation, there are often other conditions. Staying employed, not drinking alcohol, etc. Things that restrain your liberty, and that normal people are allowed to do. Hence, he'd say, probation is really probation, unlike a suspended sentence.
Suspended sentences are admittedly conditional as well. But the Ninth Circuit would say that the only condition thereto is that you don't commit a crime, which you're not at liberty to do anyway. Hence it's not "probation" because that doesn't additionally constrain your liberty.
Okay thus far.
But here's the tough part: What about unsupervised probation that doesn't include those often-applied provisions? Cases in which the trial judge hasn't checked those particular boxes, but nonetheless has still clearly (and expressly) placed the defendant on probation? What does the Ninth Circuit's rule coherently -- or otherwise -- say about those?
That seems to me to strike at the heart of the Ninth Circuit's holding. Because I'm confident that there are, in virtually every state, precisely such cases. Probation where the only imposed condition is the exact same one as that of a suspended sentence: Commit no future crimes.
Judge Kleinfeld doesn't say how that one would comes out. And there's really no good answer under the Ninth Circuit's test. Unlike the test proposed by the U.S., where there's a totally easy answer: "Yep, that's probation."
Plus, I can easily come up with a variety of standard probation conditions that are beyond those imposed alongside a suspended sentence and yet still would not seem to constitute "probation" under the Ninth Circuit's view. Imagine, for example, a domestic violence offender sentenced to probation with the only condition that he not contact, and that he stay away from, the victim. Normally that'd be a restraint on liberty. But what if there was already a preexisting restraining order? (Maybe even the one the the defendant violated that led to the criminal charge.) In that case, "probation" wouldn't restrain defendant's preexisting liberty. So it's not really "probation," right? Really?!
Other conditions -- conditions that I have no doubt whatsoever (after a little research, anyway) are actually imposed -- operate the same way. What about the standard probation condition that the probationer not use illegal drugs? Not really "probation" since that's illegal anyway? Or, for minors, the standard probation condition that they enroll in (and/or attend) school? Is that not really "probation" either since schooling is already compulsory for most minors? Is it really possible that you could have someone expressly sentenced to probation, and have the trial judge check a wide variety of the standard boxes on the form -- as well as add some new ones -- and yet this clear "probation" not be "probation"? Under the Ninth Circuit's view, the answer is clearly "yes". Which is troubling.
Especially since there's a clear, bright-line alternative. One that doesn't run into these difficult definitional and counterintuitive problems. The one advanced by the United States. Probation is when the serving of a sentence is conditional. Which, apparently, includes a sentence that's described as "suspended". Turns out, it's just like probation. Or at least a form of it. So both count.
That's my thought, anyway. Judge Kleinfeld's opinion made a great deal of sense to me. (The first part of the opinion, by the way -- the part about the plea bargain -- was so totally clearly correct that it made me wonder who would even bother to argue the contrary.) But the more I thought about it, the more problems I discovered. Which, in the end, left me with a keen sense that the Ninth Circuit's facially appealing decision here might in fact be wrong.
