Sentencing Court Discretion and the Confused Ban on Internet Bans

• Citation: Vol. 9 No. 4
• Publication year: 2014

Washington Journal of Law, Technology and Arts Volume 9, Issue 4 Spring 2014

Sentencing Court Discretion and the Confused Ban on Internet Bans

Matthew Fredrickson (fn*)© Matthew Fredrickson

ABSTRACT

In United States v. Wright, issued June 2013, the Sixth Circuit cited a supposed consensus among circuit courts that Internet bans are per se unreasonably broad sentences in electronic child pornography possession and distribution cases. This Article demonstrates that the Sixth Circuit's claim of a consensus is mistaken. While some circuit courts of appeal have limited judicial sentencing discretion when it comes to imposing Internet bans, many more have not imposed this limit. Despite this lack of consensus, in cases where such bans are challenged, most courts make their decisions partly based on either the Internet's pervasive importance in modern society or its capacity for rapid change. Though the claim of a consensus is incorrect, pointing to the Internet's unique qualities, especially its pervasive importance, remains a compelling argument.

TABLE OF CONTENTS

Introduction..................................................................................350

I. The Basics: Challenging Supervised Release Conditions ....351

II. The Consensus and Dissension.............................................354

A. Shared Per Se Disapproval: Second, Third, and Seventh Circuits.............................................................356

B. The Mislabeled: First, Eighth, and Tenth Circuits...........357

C. Shared Approval?: Fourth, Fifth, Sixth, Ninth, Eleventh, and D.C. Circuits...........................................359

III. Technology's Impact............................................................360

A. Technology's Importance Generally...............................361

B. Technology's Defendant-Specific Importance................362

C. Technological Advances Requiring Greater Control.......364

Conclusion ...................................................................................365

Practice Pointers...........................................................................365

INTRODUCTION

In June 2013, the United States Court of Appeals for the Sixth Circuit's holding in United States v. Wright(fn1) pinpointed an area of law where the ubiquity of technology could limit a court's discretion: the sentencing of convicted criminals.(fn2) In its holding, the court emphasized that "there appears to be a consensus that Internet bans are unreasonably broad for defendants who possess or distribute child pornography," as opposed to those who "initiate or facilitate the victimization of children" over the Internet.(fn3) An Internet ban is a court-imposed condition on an defendant's post-incarceration release that prohibits the person from using or possessing a computer, Internet, or Internet-compatible device for a designated or indeterminate period of time, without (or regardless of) a supervisory body's prior consent-usually that of a probation officer.(fn4) To stand, the condition must be reasonably related to the general purposes of criminal punishment and not be overly broad or unduly restrictive.(fn5) A consensus on what constitutes an unreasonably broad sentence would limit courts' ability to sentence as they see fit.

This potential intrusion into federal trial courts' discretion began when the circuits split over whether to express per se disapproval of some Internet bans as probation or parole conditions.(fn6) In the realm of crimes involving the electronic possession or distribution of child pornography, the D.C. Circuit said, and the Sixth Circuit agreed, that there existed a national consensus that some Internet bans are per se unreasonable.(fn7) The argument for limiting trial courts' discretion was that the Internet is so important to modern life that any sort of ban would be unreasonable.(fn8) However, another argument soon appeared in favor of allowing a complete ban. This second argument favors a ban because of the changing nature of technology and the courts' need for flexibility in sentencing.(fn9) This Article will demonstrate that there is no consensus and that both technology arguments remain compelling. Furthermore, this Article will show that the argument concerning the Internet's importance specifically, with its longevity and variations, is likely to be the more com1p0elling of the two for practitioners with clients facing Internet bans.(fn10)

I. THE BASICS: CHALLENGING SUPERVISED RELEASE CONDITIONS

The criminal justice system punishes convicted defendants as retribution for their acts, to deter future crimes, and to reform the defendant.(fn11) In an attempt to meet these objectives, Congress has enacted statutes that guide a court's sentencing generally.(fn12) With regard to a convicted defendant's supervised release, Congress enacted 18 U.S.C. § 3583, originally ratified in 1984. Throughout its life, this statute has mandated factors and limitations that courts must consider and follow when imposing release conditions.(fn13) Read with the more general federal criminal statutes, courts interpret § 3583 as requiring release conditions to be "reasonably related" to certain factors and interests.(fn14) Conditions must relate to "(1) the nature and characteristics of the offense and the history and characteristics of the defendant, (2) the deterrence of criminal conduct, (3) the protection of the public," or "(4) the provision of needed . . . correctional treatment [for] the defendant."(fn15) A condition can be related to any or all of these factors but it must be reasonably related to at least one,(fn16) and "the condition cannot impose any 'greater deprivation of liberty than is reasonably necessary.'"(fn17)

For an appellate court to analyze whether a release condition is reasonably related to the statutory factors and interests, the lower court's imposition must be "ripe for review."(fn18) Traditionally, a sentencing issue is ripe when the defendant "has suffered a concrete and particularized injury" because of the imposition.(fn19) Thus, in the case of release conditions, there is sometimes debate as to ripeness when a condition is imposed but not yet experienced by the defendant.(fn20) However, the sentencing statute's legislative history, the inapplicability of "traditional canons that counsel against hearing these sorts of challenges," and a judicial interest in hearing these cases expeditiously all favor review of supervised release conditions "at the time of their imposition."(fn21) Absent a condition "full of contingency and abstraction," the condition is likely to be reviewable when the court first imposes it.(fn22)

When the appellate court reviews a sentence, it gives "due deference" to the sentencing court's decisions.(fn23) This deference amounts to respecting the sentencing court's wide or broad discretion.(fn24) Therefore, upon appeal, a condition of release like Internet bans can be reviewed only for an abuse of discretion.(fn25) One court aptly defines an abuse of discretion as when a sentencing court "fails to consider a relevant and significant factor, gives significant weight to an irrelevant or improper factor, or considers the appropriate factors but commits a clear error of judgment in weighing those factors."(fn26)

If, however, the defendant does not object to the condition's imposition, then the reviewing court reviews the objection on appeal for plain error.(fn27) Under this standard of review, most courts will only find reversible error if "(1) an error occurred, (2) the error was plain, and (3) the error affected substantial rights."(fn28) Some federal appellate courts go even further and add a fourth requirement for reversal: that the error affected "the fairness, integrity, or public reputation of the judicial proceedings."(fn29) With these standards, plain error review subjects the sentencing court's actions to a lesser degree of scrutiny than the abuse of discretion standard.(fn30) Therefore, when challenging a supervised release condition, a timely objection should affect the court's review of the sentence's reasonableness under the statutes.

II. THE CONSENSUS AND DISSENSION

The Second and Fifth Circuits most clearly evidence the circuit split on the issue of Internet bans in electronic child pornography possession and distribution cases.(fn31) In United States v. So/sky,(fn32) the Second Circuit clearly articulated its position. In that case, the defendant pled guilty to electronically receiving child pornography in violation of 18 U.S.C. §2252. As a condition of release, he was barred from using a computer or the Internet without approval (an incomplete ban).(fn33) Under plain error review, the court struck down the condition as unreasonable.(fn34) This decision became firm precedent in the Second Circuit, rendering Internet bans per se unreasonable.(fn35)

The So/sky decision starkly contrasted with the Fifth Circuit's holding less than a year earlier in United States v. Paul.(fn36) In Paul, the defendant pled guilty to one count of electronically possessing child pornography, a lesser offense than receipt.(fn37) Upon release from prison...