Appeals Court Rejects 30-Year Computer Ban for Sex Offender

4-2-2010 Washington DC:

A federal appeals court in Washington today struck down a 30-year ban on any computer use by a convicted sex offender, sending the case back to the trial court to refine the restriction in a way that opens it up to modification for work purposes.

The defendant, Mark Russell, had pleaded guilty in federal district court to one count of traveling to engage in unlawful sexual conduct. He was sentenced to 46 months in prison and 30 years of supervised release. During his release, Russell is forbidden from possessing or using a computer for any reason.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said on Friday the outright ban on computer use is unreasonable. The court, however, affirmed Russell’s 30-year term of supervision.

Russell, a former applied systems engineer at Johns Hopkins University, chatted with a 13-year-old girl—in reality the “girl” was a D.C. cop—in an Internet chat room in June 2006. Russell, who lived in Columbia, Md., drove to the girl’s house, parked and e-mailed her to announce his arrival. He waited for a bit before driving away. The police arrested him as he was leaving.

Assistant Public Defender Tony Axam Jr. argued for Russell in January at the D.C. Circuit. Assistant U.S. Attorney Peter Smith represented the government. Smith conceded the 30-year outright ban on computer use should be revised.

“[T]he question is not the appropriateness of an internet restriction but its form and severity,” wrote Senior Judge Stephen Williams in the majority opinion. Williams was joined by Judge David Tatel.

Williams said it’s difficult to imagine white collar work not requiring access to computers “just as white collar work 100 years ago would almost invariably have required the use of pens and pencils. In fact Russell’s training and experience mark him not only as a white collar worker but as one at the most technically sophisticated end of the white collar distribution.”

The judge noted that even some blue collar work requires a computer: Russell “has evidently found that computer use is required for filling out most job applications, including those at McDonald’s, as well as discharging the duties of even low tech occupations, such as keeping inventory at PETCO, and producing frames at A.C. Moore.”

A “minimum change” on remand, the court said, would allow a probation officer to modify the outright ban to adjust to developments in technology and “to secure a reasonable balance between the statute’s rehabilitative and deterrence goals.”

Judge Karen LeCraft Henderson agreed with remanding the ban to the trial court for further review. But she rejected the notion, reflected in the majority opinion, that a ban on computer use is a “substantial burden” on a person’s liberty interest.

“We can judicially note that millions of Americans every day perform jobs without using (or even seeing) a computer,” Henderson wrote in a concurrence. “If Russell cannot find a job, it is more likely because of his criminal record than the computer ban.” ..Source.. Blog of Legal Times