Reasonableness of Conditions of Release for Sex Offenders

Judges have broad discretion in imposing the conditions of supervised release. The only requirements are that (1) it must be reasonably related to factors in 18 U.S.C. § 3553(a), and (2) the deprivation of liberty has to be reasonably necessary, and consistent with Sentencing Guidelines. Recently, courts have often used a ban on using computers and accessing the Internet for a period of time as condition for release. A recent Circuit Court decision for the D.C. Circuit, however, may affect the discretion judges have in imposing internet bans as a condition of supervised release for sex offenders. In United States v. Burroughs, 613 F.3d 233 (D.C. Cir. 2010), the court held that mandatory computer-use monitoring of the Internet activity of a sex offender during a supervised release was plain error, and not reasonably related to the crime. The defendant in the case was convicted for sexual abuse of a minor and sexual exploitation of a minor. The court held that because the Internet was not used in the crime, it was not reasonably related to any need to protect the public from further crimes. This ruling seriously limits the discretion a judge has when trying to impose conditions that can protect the public from sex offenders who could use the Internet for further crimes.

The Internet has received First Amendment protection from the United States Supreme Court, which stated that online content “is as diverse as human thought.” Reno v. ACLU, 521 U.S. 844, 870 (1997). Nonetheless, judges have used Internet and computer-use restrictions for years with many types of offenses. In United States v. Mitnick, 145 F.3d 1342 (9th Cir. 1998), the court held that a computer ban did not restrict the offender’s exercise of his First Amendment rights, as the restriction was reasonably related to protect the public. In United States v. Suggs, 50 Fed. Appx. 208, 210 (6th Cir. 2002), the court upheld a condition banning the defendant from using personal computers for a period of time. The court reasoned that since he was convicted for mail and wire fraud the condition was reasonably related to the crime. In addition, in United States v. Keller, 366 Fed. Appx. 362, 363 (3rd Cir. 2010), the court upheld a ban which prevented the defendant from conducting business online. In the case, the defendant committed mail fraud by setting up multiple UPS accounts for a candy Internet business. The court reasoned that the ban was reasonable because there only needs to be some connection between the offense and the supervised condition. Although the Internet was not used directly in the commission of the crime, the court determined that just the use of an online business was enough.

Putting all these cases together, the precedent before Burroughs only required a slight connection between the crime and Internet use in order for a judge to impose Internet restrictions. While in Burroughs, the crime itself did not use the Internet, it did involve sexual exploitation of a minor. With more and more children using going online, there is also a corresponding rise in the number of online predators. Thus, the condition imposed in Burroughs does have a connection to the Internet. Furthermore, the judge only required monitoring, not a total ban. Therefore, there is less of a deprivation of liberty. Given the serious public threat of online predators, as in Mitnick, the court should have let the condition stand.