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May 6, 2012

Note examines "vastly different" circuit views on internet bans for supervised release

Via Concurring Opinions, I discovered this new student note titled "You Don’t Have Mail: The Permissibility of InternetUse Bans in Child Pornography Cases and the Need for Uniformity Across the Circuits."  Here is the abstract:

The federal courts of appeal have formed vastly different conclusions with respect to the reasonableness of Internet-use bans as a term of supervised release in virtual child pornography cases.  All courts ground their decisions in 18 U.S.C. § 3583(d), the federal statute governing supervised release conditions.  Nonetheless, when presented with seemingly analogous facts, some courts uphold Internet-use bans, whereas others strike them down.  Courts upholding such bans conclude that they constitute effective deterrents and ensure public safety.  Courts overturning the bans, on the other hand, assert that they unreasonably deprive offenders of their liberty interests.

Because decisions regarding the permissibility of Internet-use bans are, under the current statutory regime, incoherent at best and arbitrary at worst, Congress should amend § 3583(d) to provide judges with meaningful, cyberspecific guidance.  Accordingly, this Note proposes that Congress adopt the UNIFORM Act, which sets forth child pornography–specific guidelines for determining the terms for supervised release.  Inspired by the United States Sentencing Guidelines and extracted from the caselaw regarding the permissibility of Internet-use bans, the UNIFORM Act seeks to limit judges’ sentencing discretion in child pornography cases.  At bottom, this Note posits a commonsense compromise, informed by existing statutes and caselaw, which would achieve consistency in an area of the law currently plagued by judicial ambiguity.

May 6, 2012 at 07:20 PM | Permalink


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Standardizing terms and conditions of probation is a terrible idea. The social science literature has demonstrated that those convicted of sex crimes (like others in the legal system) are least likely to reoffend when they received targeted interventions that address Risk-Needs-Responsivity prinicples (see Andrews & Bonta, see also Hanson, 2009 in the context of sexual offenders). One size does not fit all and the etiology of offending behavior is dramatically varied. Why is someone's Internet access being restricted in the first place? Is this really the least restrictive intervention needed? Given the social isolation (major risk factor for reoffense) that is magnified by lack of internet access, any alleged benefits may not always outweigh the risks of cutting a population out of yet another social and economic interface in contemporary US society. Reading appellate decisions in this arena is a woefully inadequate level of analysis when the courts are running about 15 years behind the research and the defense bar is often ill-prepared to address hysterical claims that such restrictions are necessary to "contain" a sex offender.

Posted by: LRK | May 7, 2012 9:32:54 AM

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