United States v. Stephens

SMITH, Circuit Judge,

concurring.

I concur in the conclusion that David Stephens failed to establish that the Adam Walsh Child Protection and Safety Act of 2006’s imposition of curfew and electronic monitoring is facially unconstitutional. However, I write separately because I arrive at that destination by a different route. Before the district court, Stephens successfully challenged the constitutionality of 18 U.S.C. § 3142(c) as violative of his procedural due process rights on its face. The district court concluded the Act impermissibly “imposes curfew and electronic monitoring as conditions of release without affording the defendant a fair opportunity to contest the necessity for such restrictions to the defendant’s liberty.” While I agree that the Act imposes those restrictions, I do not believe that Stephens was deprived of any right under the Due Process Clause to contest their necessity.

In its order setting conditions of release, the district court granted Stephens pretrial release with conditions generally tailored to secure his presence at subsequent proceedings and to protect the public. The court imposed four standard conditions of release, seven general conditions, and three special conditions. These conditions include provisions restricting the defendant’s activities, travel, associations, and firearm possession or proximity, and compelling contact with his probation officer. The conditions substantially *1041restrict otherwise constitutionally protected conduct. The court imposed these conditions after a detention hearing in which the court concluded that the defendant did not need to be incarcerated before his trial on the charges. The mandatory minimum conditions imposed by § 3142(c) are not different in kind or degree from the conditions considered and imposed by a district court in every similar case. In fact, the very conditions challenged here (curfew and electronic monitoring) are included on the forms for special conditions of release. Every defendant afforded a detention hearing is made aware of the potential of these restrictions and may contest them. In fact, Stephens successfully avoided imposition of these restrictions through that very hearing process. Stephens’s detention hearing was conducted at a meaningful time and in a meaningful manner consistent with due process. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

Congress, however, has mandated that curfew and electronic monitoring are minimal conditions to be imposed on defendants accused of certain crimes involving children. The balancing factors described in Mathews do not compel a conclusion that § 3142(c) violates due process on its face.5 Unquestionably, curfew and electronic monitoring affect a liberty interest of the accused but potentially no more and no differently than restrictions already imposed by the standard and general conditions of release. Before the government requested the Walsh Act conditions, Stephens was already under a condition which provided “[t]he defendant must not, without the prior consent of his/her probation officer, travel farther than a hundred miles from the defendant’s residence.” For purposes of a facial attack on the validity of § 3142(c), it should not be presumed that any district court judge would set electronic monitoring or curfew restrictions more onerous than those routinely imposed in its standard conditions of release. Indeed curfew and electronic monitoring appear to be tools for enhancing enforcement ability of existing conditions rather than establishing materially different conditions. These restrictions by their very generality must be tailored by the imposing court using its discretion to set the bounds of the restrictions in accordance with the circumstances of the particular defendant. The risk, therefore, of an erroneous deprivation of a defendant’s liberty interest is greatly minimized.

Finally, as the district court acknowledged, “[T]he government has a significant interest in ensuring the safety of the community in general and specifically in protecting children from being victimized by those who commit child pornography related offenses.” I conclude that this compelling interest sufficiently outweighs the defendant’s interest in having an additional hearing on the necessity of a curfew and electronic monitoring.

. Mathews requires courts considering a due process challenge to weigh "[fjirst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” 424 U.S. at 335, 96 S.Ct. 893.