Can Your Probation Officer Decide Whether You Must Attend Treatment?

No. The judge, not your probation officer, must decide whether you have to attend a treatment program on supervised release. In United States v. Yarbrough, the Fifth Circuit struck down conditions that left that choice to the probation officer.

What George Yarbrough's judgment said

George Yarbrough's written judgment included two special conditions. He had to:

• "participate in a vocational training program as deemed necessary and approved by the probation officer," and
• "participate in a mental health program as deemed necessary and approved by the probation officer."

Yarbrough appealed. He argued that these conditions let the probation officer do the judge's job.

Why the Fifth Circuit struck the conditions

The Fifth Circuit agreed and reversed. "We conclude that the district court abused its discretion by impermissibly delegating judicial authority to the probation officer as to whether Yarbrough would participate in a vocational training program," the court wrote. It explained the rule this way: "A court impermissibly delegates judicial authority when it gives a probation officer authority to decide whether a defendant will participate in a treatment program."

It vacated the vocational training condition. For the same reasons, it also vacated the mental health condition. See United States v. Yarbrough, No. 15-20236 (5th Cir. 2017) (unpublished).

Because the opinion is unpublished, it is not binding precedent, but it applies a rule the Fifth Circuit has stated before.

What to check in your own judgment

Read the conditions in your judgment closely. The judgment is the court's written order that lists your sentence and every condition of supervision. Wording like "as deemed necessary by the probation officer" can be a problem when it lets the officer decide whether you must do the program at all. A probation officer can handle details, like which program and when, but the judge must make the basic decision.

Timing matters. The best time to challenge a condition is on direct appeal, and the notice of appeal is generally due 14 days after the judgment is entered under Federal Rule of Appellate Procedure 4(b)(1)(A). After that, you can ask the court to modify a condition under 18 U.S.C. § 3583(e)(2).

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.