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January 22, 2010

DC Circuit approves broad internet restriction as part of sex offender's supervised release conditions

Through an interesting ruling today in US v. Love, No. 07-3140 (DC Cir. Jan. 22, 2010) (available here), the DC Circuit has approved a pretty broad internet restriction on a pretty bad sex offender.  The Love ruling is worth a full read for those following these issues closely, and I found these part of the ruling's discussion of internet restrictions especially thoughtful:

Love challenges a condition that will require him to obtain prior written approval from the Probation Office for Internet access....  He suggests a more tailored condition that would ban only electronic communication involving prohibited sexual material, or, alternatively, would require that his Internet use be monitored remotely by the Probation Office.  Appellant’s Br. at 22–25.

The Internet prohibition will, no doubt, substantially affect Love’s day-to-day activities.  It will deprive him of the easiest way to pay his bills, check the weather, stay on top of world events, and keep in touch with friends.  It will also prevent him from using the Internet to trade child pornography.  These are all factors district courts should weigh in considering restrictions on Internet access as conditions of supervised release.  Given the alternatives of remote monitoring of an individual’s Internet usage and unannounced examinations of his computers, an Internet ban subject to Probation Office approval may in some cases impose a “greater deprivation of liberty than is reasonably necessary” to deter illegal conduct and protect the public....  But not here.  In Love’s case, this restriction is eminently reasonable.

On this record, the condition is properly tailored to the circumstances of the offense and Love’s background, and it is reasonably necessary to deter future misconduct and to protect children. Consensus is emerging among our sister circuits that Internet bans, while perhaps unreasonably broad for defendants who possess or distribute child pornography, may be appropriate for those who use the Internet to “initiate or facilitate the victimization of children.” Holm, 326 F.3d at 878;...  The distinction is grounded in the simple proposition that when a defendant has used the Internet to solicit sex with minors, “the hazard presented by recidivism” is greater than when the defendant has traded child pornography. Johnson, 446 F.3d at 283.

The district court found that Love not only distributed child pornography but that he also solicited sex with Palchak’s fictitious daughter. The court concluded that Love would have had sex with her if given the opportunity, Tr. 18, 20 59, 60, and he would likely repeat this conduct upon release if he thought he would not be caught, Tr. 62.  In sum, the hazard presented by Love’s potential recidivism is substantial, and his inclination towards reoffending is great.  Making Love’s Internet use subject to Probation Office approval is therefore appropriately tailored to the harm that may result should he resume his previous course of conduct after release from prison.

Moreover, the continuing development of the Internet makes it reasonable for the district court to give the Probation Office broad authority to determine the scope of Love’s permissible Internet use. Love’s term of supervised release will not begin any time soon.  Sentencing courts can predict neither the new ways in which child pornography will then be available nor the new technologies the government may use to police its availability.  An Internet restriction that today imposes “no greater deprivation of liberty than is reasonably necessary” to deter illegal conduct may, by the time Love is released, be either wholly inadequate or entirely too burdensome.  A broad Internet prohibition, which the Probation Office will tailor to the technology in use at the time of Love’s release, is an appropriate way to deal with that uncertainty.  We assume the Probation Office will reasonably exercise its discretion by permitting Love to use the Internet when, and to the extent, the prohibition no longer serves the purposes of his supervised release.  The Internet restriction therefore imposes no greater deprivation of liberty than is reasonably necessary to serve the purposes of supervised release.

January 22, 2010 at 02:18 PM | Permalink

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Comments

"The distinction is grounded in the simple proposition that when a defendant has used the Internet to solicit sex with minors, “the hazard presented by recidivism” is greater than when the defendant has traded child pornography. Johnson, 446 F.3d at 283."

I agree with that and I am quite pleased to see a court recognize the obvious. There is a big difference between a person who preys upon children and one who watches another prey. The former has taken "that fateful step" and thus deserves harsher punishment than the latter.

Given the facts as found by the District Judge I think this is a fair decision under our present laws.

Posted by: Daniel | Jan 22, 2010 6:13:22 PM

Child pornography cases excessively punished, but in this case, Love's intent and insistence in molesting a 10 year old girl, makes him a great danger to children. The practically life sentence he receives seems about right.

Posted by: EJ | Jan 22, 2010 9:16:37 PM

i have to disagree. a heavy punishment followed by a massive intursive probation conditions for a fictitious crime against a fictitious daughter is a JOKE!

as for this little bit of stupidty!

"and he would likely repeat this conduct upon release if he thought he would not be caught"

A LITTLE PROOF before spouting this stuidity might be nice since a decade with 100's if not 1,000's of studies say it's BULL

Posted by: rodsmith3510 | Jan 22, 2010 9:54:26 PM

Some aspects of sex offender status, such as being forced to sleep under a bridge in Miami, are harsher than keeping a parolee off of the internet. He wont have to look at spam, fight viruses, spend money on high speed internet or other conditions associated with computer use. He might just resort to use of the coin operated telephones and call up sex porn ads posted in newspapers.

Posted by: mpb | Jan 23, 2010 6:58:43 PM

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