Chapter 2: Notification of Risk Posed by Defendant (Probation and Supervised Release Conditions)

A. Statutory Authority

Under 18 U.S.C. § 3563(b)(22), the court may provide that the defendant “satisfy such other conditions as the court may impose.”

B. Standard Condition Language

If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the person and confirm that you have notified the person about the risk.

C. Purpose

1. This condition serves the statutory sentencing purpose of public protection. 18 U.S.C. § 3553(a)(2)(C).
2. This condition enables the probation officer to satisfy the statutory requirements to keep informed about the conduct and condition of the defendant and report the defendant’s conduct and condition to the sentencing court. 18 U.S.C. §§ 3603(2).
3. The purpose of this condition is to notify others of physical or financial harm that may be caused by the defendant to provide them with the necessary information to avoid risk of victimization.
4. This condition allows the officer to implement supervision methods demonstrated by social science to be effective at achieving positive outcomes. Research suggests that for a criminal opportunity to exist, two ingredients must converge in time and space. First, there must be a person motivated to commit a criminal act. Second, the person must have the opportunity to commit a crime. Opportunity theories of crime focus not on why people commit crimes but rather on why opportunities to commit crime exist. They examine the lifestyles or routines – how it is that defendants and potential victims or targets arrive at the same place at the same time, thereby making criminal offenses possible. The advice to reduce crime opportunities often leads to a focus on aspects of the environment that are most easily manipulated. Probation officers may prevent crimes by notifying potential victims of potential risks posed by defendants under supervision (see: Chapter 1, Section III(A)(4)).

D. Method of Implementation

1. In light of the “special relationship” between probation officers and the people they supervise, probation officers have a duty to warn when the probation officer determines that the person under supervision presents a reasonably foreseeable risk of harm to a third party.¹
2. The Administrative Office of the United States Courts, Office of the General Counsel, has provided guidelines to assist probation officers in complying with obligations to warn third parties. The guidelines for disclosure of information concerning third-party risk include the following:
   1. The circumstances of all defendants under supervision should be reviewed periodically to determine whether they might pose a reasonably foreseeable danger to a third party.
   2. Guidelines for disclosure of third-party risk information are selective. A warning is not required in every case, only where a reasonably foreseeable risk of harm to a specific third party is believed to exist.
   3. The requirement that a defendant under supervision refrain from engaging in a particular type of employment or inform his or her employer or another specified third party about the defendant’s criminal conviction generally should be imposed, if necessary, by the court as a formal special condition of probation.²
   4. A disclosure requirement must be reasonably related to the correctional treatment of the defendant and the protection of the public.
   5. If the officer determines that a reasonably foreseeable risk exists, then the officer should decide, based on the seriousness of the risk created and the possible jeopardy to the defendant’s employment or other aspects of rehabilitation, whether to (i) give no warning but increase the defendant’s supervision sufficiently to minimize the risk; (ii) give no warning but preclude the defendant from the employment; or (iii) give a confidential warning to the specific third party sufficient to put the party on notice of the risk.
   6. The officer may permit the defendant to make the disclosure with the understanding that the probation officer will verify it.

¹ Courts have applied the “special relationship” analysis set out in The Restatement (Second) of Torts § 315 (1965) and articulated in Tarasoff v. Regents of the University of California, 551 P. 2d 334 (Cal. 1976) (psychiatrists have “special relationships” with patients), to the relationship between a probation or parole officer and a person under supervision. See, e.g., Reiser v. District of Columbia, 563 F.2d 462 (D.C. Cir. 1977).

² Judicial Conference policy states that the requirement that a defendant refrain from engaging in a particular type of employment generally should be imposed by the court as a formal special condition of supervision; See also United States v. Peterson, 248 F.3d 79, 87 (2d Cir. 2001) (“[T]o the extent that the conditions contemplate employer notification of the offense of conviction, we believe ... that the court must determine, rather than leaving to the discretion of the probation officer, whether such notification is required. If the court believes such notification should be mandatory for certain types of employment but not others, the court may specify guidelines to direct the probation officer, but may not simply leave the issues of employer notification to the probation officer's unfettered discretion.”); United States v. Doe, 79 F.3d 1309 (2d Cir. 1996) (requiring probation officers to secure court approval prior to making a warning that could result in loss of employment).