New York Federal Criminal Practice Blog
January 6, 2009

EDNY Judge Finds Violation of Supervised Release in Sex Offender Case Where Defendant Refrained from Participating in Treatment in "Meaningful Manner"

How many people haven't clicked with their therapists and moved on to another?  Imagine being sentenced to therapy and not clicking with the assigned therapist, but not having the option of switching?  That's a predicament in which more than a few defendants have found themselves.  If so, United States v. Porter, 03-cr-0129 (CPS), 2008 WL 5377946 (E.D.N.Y. December 23, 2008), is required reading.  Advise your client to grit their teeth and comply, or (while still gritting their teeth) respectfully request the court for the right to enroll in an alternative program because the approved one is not optimal.  Just don't do what Porter did: make snide and sarcastic comments, disrupt group therapy sessions with legal discussions, fail to do assignments on the grounds they were unimportant, and then stop showing up and enroll in another program that is not approved by the Probation Department.  While EDNY Judge Sifton recognizes that Porter and his therapist may not have been a good "fit," he points out that "there is no evidence that Mr. Porter ever complained about [her]."  Moreover, he points out that that Porter "deliberately refrained from participating in sex offender treatment in a meaningful manner," and, citing three cases from the Sixth and Eighth Circuits, he holds that "[m]ere attendace is not 'participation.'"  Accordingly, Porter was held to have violated the conditions of his supervised release and awaits sentencing.

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