The Three C’s (Computers, Crime, and Corrections)

Not too long ago an individual purportedly a plaintiff in Doe v. Shurtleff, Court of Appeals, 10th Circuit 2010  was arguing to anyone that would listen that requiring registered sex offenders to disclose Internet identifiers as part of their registration was a violation their rights, most notably the First Amendment rights.  He was for a while a frequent critic of issues reported here regarding sex offender registeration and cyber-supervision suggestions.

As background to this discussion, on July 2, 2008, registration regulations implemented by the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking required by the Adam Walsh Child Protection and Safety Act of 2006 took effect.  These regulations mandated that Internet identifiers, such as e-mail addresses and profiles, were to be disclosed by sex offenders as part of the federal registration requirements. Later, the Keeping the Internet Devoid of Sexual Predators Act of 2008, also known as the KIDS Act of 2008, further solidified the disclosure of Internet identifiers as a Congressional mandate. 

The history on John Doe’s case is he brought suit  regarding the requirement to have Internet identifiers disclosed as part of sex offender registration. Initially, this information was available to the public. However, Utah amended its registration law, reflecting Internet identifiers of registered sex offenders would no longer be public. The district court removed its injunction and upheld the law. John Doe then appealed the case to the 10th Circuit.

The 1oth Circuit upheld the district court decision, allowing Internet identifiers as part of Utah’s sex offender registry.  John Doe also appealed this decision to the Supreme Court of the United States (Case No. 10-957) by filing a  Petition for a Writ of Certiorari on January 24, 2011.  On March  7, 2011, the Supreme Court denied the petition.

“The effect of denial of certiorari by the U.S. Supreme Court is often debated.  The decision of the Court of Appeals is unaffected.   However, the decision does not necessarily reflect agreement with the decision of the lower court.”

In layman’s terms, John Doe will now have to register all his Internet identifiers as a resident of Utah (he claimed to be given a “temporary pass” by the Attorney General, pending the decision in this case).  The 10th Circuit and district courts’ decision stands.

I should note right after the 10th Circuit ruling was made the federal regulations were changed on January 11, 2011,  to reflect Internet Identifers were to be excempt from the public registeration websites.  States still working on getting compliant with the federal law would be well advised to make sure Internet idenifiter are required but not made publicly  available.

Art Legal Updates, Supervision

I have taken a look at least thirty-two federal cases on technology conditions (computer/Internet restrictions) since 1998.  These cases have been litigated in ten of the thirteen federal circuit courts and reflect a split between the circuits on the issue of computer/Internet restrictions for supervised offenders. There are nineteen cases supporting such restrictions and thirteen limiting them.  However, there frequently are nuances between the circuits and even within the same circuit on the imposition of computer/Internet restrictions.

The most active circuit in these cases has been the Eighth, with seven cases, five supporting technology conditions and two narrowing their use. The Eleven circuit has had four cases, all supporting technology conditions. The Second Circuit has three case limiting technology conditions and two supporting their use in some manner. The Third Circuit has two cases limiting technology conditions and one supporting them in some manner. Attached is the listing caselawup.

Please note these cases are only federal cases, involving federal offenders. They do not include state cases which are out there in many jurisdictions. They also pertain only to conditions imposed on individuals subject to correctional supervision. They also do not include cases such as Doe v. Shurtleff, Court of Appeals, 10th Circuit 2010 and White v. Baker, 696 F. Supp. 2d 1289 – Dist. Court, ND Georgia 2010 both of which relate to requiring registered sex offenders to disclosure of Internet identifiers. (In  Doe v. Shurtleff, the 10th Circuit ruled that Internet identifiers can be required as part of Utah’s sex offender registry. The plaintiff  is appealing this decision to the Supreme Court of the United States (Case No. 10-957).  White v. Baker resulted in a preliminary injunction being granted at the district court level precluding GA enforcement  of requiring disclosure of Internet Identifiers by registered sex offenders at this time.)

Finally, do not rely solely on the classification of one case appearing as supporting or not supporting technology conditions. The cases frequently are very specific to a particular fact pattern and/or type of restriction. So…READ THE CASE…which you can find easily enough through a Google search. (I can’t spend all my time providing links to all  the cases for you…after all I have to have time to smoke a cigar every now and then!)

In summary,  of the nineteen cases supportive of technology conditions, 14 dealt with child pornography offenses (possession, receipt, selling, production, or transporting). Two cases dealt with enticement via a computer. Of the offenses involving child pornography or enticement, seven involved real victim(s) or a similar aggravating circumstance. Three of the cases deal solely with fraud type offenses.  Of the thirteen cases limiting the imposition of technology conditions, eight dealt with child pornography offenses (five receipt and three possession). One case, dealt with enticement, which was an undercover sting operation. Two cases involved fraud offenses, with a sex offense history of some kind. One case involved counterfeiting.

Enjoy and please forward me corrections, additions, etc. as needed.  I will update this as needed.

PS: A thanks goes out to Blog poster JohnDoeUtah for pointing out the Doe v. Shurtleff and White v. Baker cases noted above.

Art Legal Updates

Couple cases were published February 16, 2011, that thought might be of interest. Both of them are out of the 8th Circuit and come to different conclusions on Internet bans. Here are the highlights: 

U.S. v. WIEDOWER, No. 09-3192, 8th Circuit: Wiedower was convicted of possession of child pornography and the sentencing Court imposed the following conditions, 

 “(1) a requirement that Wiedower participate in sexual offender treatment, which would involve submitting to polygraph testing; (2) a ban on the use of any computer, whether connected to the Internet or not, without the prior approval of the probation office; (3) a ban on any online gaming unless “otherwise indicated in the sex offender treatment plan”; (4) a ban on possessing or viewing any “form of media containing pornographic images or sexually explicit material”; and (5) a ban on contacting any minors without prior approval or entering any place “where children frequently congregate,” such as theaters and theme parks.” 

The 8th Circuit upheld (1), (4) and (5). However, relying in part on its discussion in United States v. Crume, 422 F.3d 728 (8th Cir. 2005) and the fact Wiedower was only convicted of possession of child porn, the 8th Circuit struck down conditions (2) and (3): 

 …”the district court did not explain why a specific restriction on online gaming was necessary, even though the only evidence in the record suggested that Wiedower was attempting to replace child pornography with online gaming. Accordingly, we reverse the computer and internet restrictions, including the more specific prohibition on online gaming, and remand this case for the district court to create a more narrowly tailored ban, if the district court deems one necessary after conducting an individualized inquiry.”  

U.S. v. DEMERS, No. 09-2886, 8th Circuit: Demers pled guilty to possession of child pornography. However, Demers had a prior sexual abuse offense and was a registered sex offender at the time of the offense. Demers challenged a special condition (Number 5) which forbid him to “have access to an Internet-connected computer” or to “access the Internet from any location without prior approval by the probation office and for a justified reason.” 

 He first argued that a ban on his Internet access was not reasonably related to the 18 U.S.C. § 3553(a) factors. The 8^th Circuit noted: 

 “Given Demers’s prior sexual abuse offense and his status as a registered sex offender, we have no trouble concluding that because Demers’s offense involved using the Internet to access child pornography, a limitation on his access to the Internet is “reasonably calculated to deter him from repeating his illegal activity, protect the public from similar conduct, and serve his correctional needs.”  

 Next, Demers argued that this condition “represents a greater deprivation of his First Amendment rights than is reasonably necessary.” The 8^th Circuit noted: 

 “Crume raises rather than decides the question of how much beyond mere possession of child pornography is necessary to justify a complete ban. In United States v. Boston, however, we upheld a restriction on internet access equally as broad in scope as the one at issue here. 494 F.3d 660, 668 (8th Cir. 2007).” 

Court further noted: 

 “In the instant case, Demers was arrested at a public library after having printed images of child pornography, which, as in Boston, could very well have been done for the purpose of distributing those images. We find that Boston controls this issue, and we conclude that the district court did not plainly err in imposing special condition 5.”  

Art Legal Updates

There are five common goals in sentencing, Retribution, Incapacitation, Deterrence, Rehabilitation, Restoration. When an individual is sentenced to imprisonment, the institution’s goals are keep them safe, keep them in, keep other inmates/staff safe, and somewhere in the mix rehabilitate the offender and prepare them for release. Not too long ago the idea of giving inmate’s computer access was batted around, particularly considering the educational aspect it brings to a facility. It is one additional tool that could be used to rehabilitate the inmate. This idea has grown dramatically.

We now have the Trust Fund Limited Inmate Computer System (TRULINCS), a new program currently being deployed by the Federal Bureau of Prisons (BOP), which is expected to be at all facilities by June 2011. The program provides inmates with limited access, specifically, the capability to send and receive electronic messages without having access to the Internet. No federal inmate has Internet access.

States are also following suit with similar programs. At least one state, Kansas, has taken it a step further by allowing limited electronic banking, e-mail and video family visitations. Clearly, there is a move by some to give inmate’s Internet access beyond just e-mail. Some countries, like Australia allow prisoners to have lap top computers in their cell.

Part of this push is apparently cost savings. It costs less to deal with e-mail communication as opposed to opening and reviewing snail mail. Monitoring is still obviously a component of all these programs. If an inmate were to write something inappropriate the information would be flagged, stopped, and dealt with I am sure before being sent out.

However, what about coded messages? Apparently, some states are on top of that too with someone assigned to review messages for hidden “codes.” I wonder how successfully they will be in preventing coded messages sent via e-mail from getting out or being received. Imagine the volume of messages being sent. The TRULINGS program above has a limit for messages of 13,000 characters (approximately two pages). A person can hide a lot of coded messages in 13,000 characters, especially if they spread the entire message out over numerous e-mails.

We also have at least one case where an inmate successfully broke into prison computer systems and stole identity information on prison personnel. We have inmates smuggling in cell phones into prison. How hard would it be to smuggle a USB thumb drive with the tools needed to “hack” a prison computer or system?

Even providing computer training to inmates carries an element of risk. Recently, an inmate with word processing skills honed in prison, completed the task of creating a nice annual report on the prison’s operation for the institution. The same inmate, after released, used those same skills to develop a nice bogus prospectus and convinced at least one victim to give them investment funds on a non-existent company.

Ironically in the not too distance future, you will have inmates allowed to access a computer while in custody, but upon their release they will not be permitted access due to special conditions. The caveat is of course access can be granted if the community corrections officer is prepared and able to monitor that use. Many are not. So the fall back positions is no computer or Internet access. How will that fly? The released offender has less privledges for electronic communication than the inmate. Someone is going to put that in a legal brief soon.

I am not arguing that the access is Good or Bad. I just wonder, what the rules/guidelines are for these things. Not the specifics of what is going on, just some general, no nonsense rules for making sure we “keep them safe, keep them in, keep other inmates/staff safe, rehabilitate the offender and keep the rest of us safe from acts committed inside and outside of the prison walls.

Maybe it is time we get a  handle on this trend. As such I invite readers to post what correctional facilities are doing regarding inmate’s 1) computer; 2) e-mail access; and 3) Internet access. Give me the good and bad of it. Don’t forget to include the state/facility.

SOURCES

Department of Justice, Victoria, Australia: Personal Computers in Prison, Retrieved on November 16, 2010, http://www.justice.vic.gov.au/wps/wcm/connect/DOJ+Internet/Home/Prisons/Prisoners/Property/JUSTICE+-+Personal+Computers+in+Prison

Think Outside the Cage: Colorado Criminal Justice Reform Coalition, Retrieved on November 16, 2010 from http://thinkoutsidethecage2.blogspot.com/2009/05/email-in-pen-kansas.html

Trust Fund Limited Inmate Computer System (TRULINCS), Retrieved on November 16, 2010 from http://www.bop.gov/inmate_programs/trulincs_faq.jsp#1

U.S. Department of Justice Press Release, Retrieved on November 16, 2010 from http://www.usdoj.gov/criminal/cybercrime/janoskoIndict.pdf

Art Legal Updates

I moved this post to Page status. This why it will be easiler to find. Kind of an update, as of  December 10, 2010, we have 17 states, with specific statuory lanuage regarding computer/Internet restrictions, and at least two states with statutory authority for probation/parole to craft such restrtictions. That is 19 out of 50 (38%). Of course the federal authorities all impose such conditions as well.

Art Legal Updates