“Early Termination? Dilly Dilly!” – Update for December 20, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


If you’re familiar with the phrase “Dilly Dilly,” you can thank Bud Light for turning the phrase into a cultural phenomenon. The company ads have gone viral thanks to constant appearances during commercial breaks in NFL and college football games. 

Anheuser-Busch InBev Chief Marketing Officer Miguel Patricio admits that  “‘Dilly Dilly’ doesn’t mean anything. That’s the beauty of it. I think that we all need our moments of nonsense and fun. And I think that “Dilly Dilly,” in a way, represents that.”

As a substitute for a longer, reasoned response, “dilly dilly” works. Used in lieu of an explanation, it’s not so welcome.

dilly171220After a federal defendant serves a prison term, he or she must then complete a term of supervised release, a post-incarceration period during which the defendant is under the thumb of a U.S. Probation Officer. The PO controls where the defendant lives, who he or she associates with, where he or she travels or works, even what he or she buys. Violation of the terms of supervised release – not necessarily commission of a crime – can land the defendant back in prison, once again disrupting his or her life and the lives of loved ones.

One of the few positive nuggets found in the dross of the supervised release statute is found in 18 USC 3583(e)(1), which lets an ex-inmate on supervised release get off paper after a year. Those defendants who know about the provision at all think that whether the court will cut them loose is up to whether the judge has indigestion from lunch or, if the defendant is fortunate, whether the probation officer got lucky the night before. Even POs are not immune: we have had one tell us that the judge will not grant a motion unless it is filed by the Probation Officer, and another told us she refuses to ever agree to early termination.

Under a criminal justice system governed by laws instead of caprice, we should expect more.

more171220Anthony Johnson expected more. He did about 20 years before the Supreme Court’s Johnson decision knocked his 22-year Armed Career Criminal Act sentence back to the 10-year maximum it should have been all along. So with having served seven years more than the law required, having gotten a solid job, joined a church, and completed a squeaky-clean year on SR, Anthony filed a 3583(e)(1) motion to have his supervision terminated.

dillyshirt171220The judge denied his request in a one-sentence handwritten order on page one of Anthony’s motion, without so much as even asking the PO for his views or requiring the government file an opposition. He might as well have written “Dilly Dilly” in the margin.

Anthony expected more, and so he appealed to the 11th Circuit. Last week, the appellate panel reversed the district court.

The Circuit said that a 3583(e)(1) motion cannot be denied on a whim. Instead, the district court is required to apply the same 18 USC 3553(a) sentencing factors to a termination motion as it is supposed to have used in sentencing the ex-inmate to begin with. Given that Anthony had the statutory right to appeal denial of a motion to terminate SR, the 11th said, his district court was obligated to explain its decision to deny early termination in terms of the sentencing factors – the nature the offense, history of the defendant, the need for the sentence to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense – that the court should have used 21 years before when it locked him up.

The district judge will get another whack at Anthony’s early termination motion, this time explaining his decision by applying the 3553 sentencing factors.

United States v. Johnson, Case No. 17-12577 (11th Cir. Dec. 15, 2017)

– Thomas L. Root


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