Fifth Circuit Notes Split Re Propriety of Delegating Conditions of Probation Is Permissible

Per U.S. v. Turpin, Slip Copy, 2010 WL 3377231 (5th Cir. Aug. 25, 2010):

Turpin contends on appeal that the district court impermissibly delegated its judicial authority and committed plain error by requiring participation in the mental health and anger management programs “as deemed necessary and approved by the probation officer .” There is currently a circuit split on this issue. The Third, Fourth, and Eleventh Circuits have held that imposing a sentence, including conditions of probation, is a strictly judicial function that may not be delegated. United States v. Pruden, 398 F.3d 241, 251 (3d Cir.2005); United States v. Johnson, 48 F.3d 806, 808 (4th Cir.1995) (“[T]he imposition of a sentence, including any terms for probation or supervised release, is a core judicial function”); United States v. Heath, 419 F.3d 1312, 1315 (11th Cir.2005) (“[D]elegating to the probation office the authority to decide whether a defendant will participate in a treatment program is a violation of Article III.”).

However, the Eight and Ninth Circuits have held that, as long as a judicial officer retains ultimate authority and responsibility for approving conditions of probation, limited authority regarding the details of supervised release may be delegated to probation officers. United States v. Mickelson, 433 F.3d 1050, 1057 (8th Cir.2006); United States v. Bowman, 175 F. App'x. 834, 838 (9th Cir.2006) (unpublished) (finding that delegating limited authority to probation officer to recommend whether or not defendant should have unsupervised visits was permissible, because “if the probation officer arbitrarily or unfairly denies [defendant] a favorable recommendation, [defendant] is free to seek relief from the district court....”). The Sixth Circuit has held that, although “fixing the terms and conditions of probation is a judicial act which may not be delegated,” delegating such things as the schedule of restitution payments is permissible. Weinberger v. United States, 268 F.3d 346, 359-61 (6th Cir.2001) (quoting Whitehead v.. United States, 155 F.2d 460, 462 (6th Cir.1946)). The Fifth Circuit has not yet decided whether it is permissible for a court to delegate to a probation officer the determination of whether mental health treatment will be required as part of supervised release.

However, we need not reach the delegation issue in Turpin's appeal, because Turpin also argues that the case should be remanded for clarification.