Louisiana, beaten but not out, is making another stab at restricting sex offenders from social networking sites after having its previous law overturned. I have repeatedly discussed this issue in the past. (See Correction’s Play Role In Keeping Sex Offenders Off Social Networking Sites and States Limit Social Networking Use: Good or Bad? ) Legislatures are one thing and sentencing courts are another. I have previously alluded to there being a split in the federal circuit courts on computer/Internet restrictions for supervised offenders. (See Federal Case Law on Technology Conditions in Corrections and Pair of 8th Circuit Cases on Internet Prohibitions) Frequently, the decisions on these restrictions hinge on the specific fact patterns and there are nuances between the circuits and even within the same circuit on the imposition of computer/Internet restrictions. Two recent cases, one in the Eighth Circuit and the other in the the Fifth Circuit indicate that such restrictions can still be imposed on supervised offenders, provided the fact patterns support such conditions.
United States of America v. Theodore Joseph Schaefer, No. 11-2293, 8th Circuit, 04/09/2012
Schaefer was convicted of one count of knowingly possessing child pornography and was sentenced to 97 months’ imprisonment, followed by ten years of supervised release. He appealed the following two special conditions of supervision:
The defendant shall have no contact with children under the age of 18 (including through letters, communication devices, audio or visual devices, visits, electronic mail, the Internet, or any contact through a third party) without the prior written consent of the probation office.”
The defendant is prohibited from places where minor children under the age of 18 congregate, such as residences, parks, beaches, pools, daycare centers, playgrounds, and schools without the prior written consent of the probation office.”
Schaeferchallenged the two conditions because they prohibit him from having contact with, or being near, children (including his two daughters). He further stressed that the conditions were not narrowly tailored, or reasonably related to his offense, his history and characteristics, or public protection. He further emphasized that his conviction was for possession of child pornography, not distributing or trading child pornography; he had no prior criminal history; and, the public is protected because he had unproblematic contacts withhis children while on pretrial release. The Eighth Circuit noted, the record demonstrated that the sentencing court took “an individualized basis for the special conditions of supervision, noting his motive was “to trade that [child] pornography.”. It cited a Sentencing Memo, which noted:
Clearly, he had the intent to distribute child pornography to others. His online chats establish that he was very interested in trading child pornography with others, although due to computer glitches he found himself without anything to trade. He stated he was trying to rebuild an inventory of pornography.”
Additionally, it was noted that the sentencing court found he had “expressed an interest in going into business with this [online] friend and selling his friend’s daughter for money.” The Eighth Circuit concluded that the sentencing court had imposed the two conditions after an individualized analysis of Schaefer, emphasizing its authority to modify them under 18 U.S.C. § 3583(e) and had not abused its discretion in imposing the two conditions.
United States v. Seth Davidson Hilliker, Case No. 11-50112. 5th Circuit, 04/13/2012
This case is noteworthy as Hillikerwas convicted of violating the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250(a), which had nothing to do with using a computer or the Internet. He was sentenced to 40 months of imprisonment (with credit for the 10 months already served), to be followed by 20 years of supervised release. As part of the special conditions of supervised release, he was denied all access to computers, the Internet, cameras, photographic equipment, and other electronic equipment without the permission of his probation officer, and that he not purchase or possess any sexually oriented material.
Hilliker argued that the special condition banning him from computer and Internetaccess failed to comply with statutory requirements and compromises substantial liberty interests, (2) that the special condition banning him from possessing photographic devices and electronic equipment was not reasonably related to supervised release goals, and (3) that the special condition banning him from possessing sexually oriented or sexually stimulating materials was overly broad and failed to meet due process notice requirements.
The predicate offense that led to Hilliker’s SORNA registration requirement was his 2008 conviction for attempted indecency with a child by contact. In June 2007, the victim’s father reported that Hilliker fondled the buttocks of his four year old daughter while he and his daughter were shopping at a book store. In another, unrelated 2007 incident, Hilliker was reported because he had twice fondled the buttocks of a 10-year-old female inside a thrift store. In 2003, a state trooper responded to a report of Hilliker grabbing young girls in a Kohl’s department store in Sunset Valley, Texas. In 1998, Hilliker was charged in Durham, New Hampshire, with loitering and prowling and indecent exposure and lewdness. In 1995, Hilliker was charged with misdemeanor criminal trespassing when he was found inside a middle school without permission. None of the acts in these cases involved the computer or the Internet.
However, at the time of sentencing Hilliker provided a letter to the court noting that … “Internet pornography was a factor in clouding his judgment regarding the propriety of touching or fondling young girls in public places. ” This coupled with his fugitive background and evasions of law enforcement, as well as its finding that he was a “predator” who had repeatedly engaged in direct physical contact with minor children was used by the court to justify the above conditions. The Fifth Circuit concluded that the sentencing court had not committed plain error by imposing near absolute restrictions on computer and Internet access or imposing the other conditions and upheld the court’s sentencing.
Conclusion
What is the common thread in these cases, besides they contain Internet or computer restrictions? In both cases the courts are attempting to address “risk.” In Schaefer, the offender’s offense conduct reflected he was online intending to trade child pornographyand in one incident had also discussed with an online friend selling a friend’s daughter for money. In Hilliker, his offense conduct had nothing to do with using the Internet but he had acknowledged he committed the offenses due to his use of Internet pornography. Restricting the Internet in both cases limits its use as a tool or catalystfor future misconduct. Legislatures would do well to allow courts and parole authorities the discretion, if they chose to impose such restrictions, without mandating wholesale prohibitions based solely on the status of “sex offender.” I will of course keep you posted on Louisiana’s second attempt to get what so many courts are doing appropriately, ie, managing risk with appropriate legally supported conditions. Until then I left a cigar lit somewhere.
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