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April 3, 2010

DC Circuit rejects 30-year ban on all computer use for sex offender

As detailed in this Wired story, "a federal appeals court Friday overturned a 30-year computer ban imposed on a sex offender caught in an online police sting."  The opinion came in US v. Russell, No. 08-3120 (DC Cir. Apr. 2, 2010) (available here), which begins this way:

Defendant Mark Russell pleaded guilty to one count of travel with intent to engage in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b) (2006).  The district court sentenced him to 46 months of imprisonment and 30 years of supervised release.  A special condition of his supervised release specifies that Russell may not “possess or use a computer for any reason.”  Russell challenges the duration of his supervised release and the computer restriction, arguing that each is substantively unreasonable.  See Gall v. United States, 552 U.S. 38, 51 (2007).  We affirm the length of the supervised release, but vacate the computer restriction and remand for resentencing.

This ruling provides yet another example of how modern technologies are presenting new and interesting issues for sentencing and appellate courts.  The Wired piece provide this bit of additional context:

That inflexible ban on computer use is “substantively unreasonable” and “aggressively interferes with the goal of rehabilitation,” ruled the U.S. Court of Appeals for the District of Columbia.

It’s the latest decision on an issue that has some, but not all, courts moving toward accepting the internet as a basic freedom that even convicts should not be permanently denied. In January, the 3rd U.S. Circuit Court of Appeals in Philadelphia overturned a lifetime internet ban against a child porn offender, calling such bans “draconian” in terms of employment opportunities and “freedoms of speech and association.” But a few months earlier, the first unconditional lifetime internet ban to be appealed was upheld by the Atlanta-based 11th U.S. Circuit Court of Appeals.

April 3, 2010 at 09:02 AM | Permalink


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The 8th Circuit said the same thing in United States v. Bender. A full ban is no good. There must be a clause that allows the defendant to get approval for certain uses(e.g. work).

Posted by: troy stabenow | Apr 3, 2010 9:55:22 AM

That's crazy. A person commits one crime and now the government gets to watch them for life????!!! I find that morally insane.

Posted by: Daniel | Apr 3, 2010 10:46:00 AM

By complete coincidence Dr. Karen Franklin has an excellent blog post on this topic today that somehow manages to sum up many points I have made on this topic over the years. The title of it is "The Delusional Campaign for a World Without Risk." I don't agree with her on every nit-picky point but it's overall perspective and position I heartily endorse.


Posted by: Daniel | Apr 3, 2010 11:32:35 AM

I never really thought it was the goal of our governement to keep an eye on anyone who has paid the proper sentence for their criminal actions. Is not redemption an American ideal? I applaud this ruling.

Posted by: tbucket | Apr 3, 2010 12:32:53 PM

i agree the whole sentence is a CROCK! LIFETIME parole for a crime that had NO VICTIM!

"where he expected to meet a 13-year-old girl he’d sexually solicited in a chat room. The “girl” was actually an undercover cop, and Russell was ultimately sentenced to 46 months in prison and ordered not to “possess or use a computer for any reason” before the year 2039."

sorry a COP can't be a child!"

Posted by: rodsmith | Apr 3, 2010 12:37:09 PM

I published a note on this very topic back in 2004: "Cyber Crime and Punishment: Filtering out Internet Felons", 14 Fordham Intell. Prop. Media & Ent. L.J. 1051 (2003-2004).

Posted by: JH | Apr 6, 2010 2:54:05 PM

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