Plenty of probation agents and sentencing judges may have a penchant for barring access to the Internet for certain convicted sex offenders, in such cases as sexual assault and child pornography. However, doing so in a knee-jerk fashion and without narrow tailoring violates a convicted person’s Due Process rights under the Fifth and Fourteenth Amendments to the United States Constitution.

Last month, New Jersey’s Supreme Court enunciated the issue as follows:

“[F]ederal courts, such as the United States Court of Appeals for the Third Circuit, have addressed Internet restrictions on supervised offenders with some frequency. Although the federal statute dealing with supervised release, 18 U.S.C.A. § 3583, is worded differently from New Jersey’s corollary CSL [community supervision for life] provisions, the principles governing the federal and state statutes are similar. Under federal law — as under state law — ‘the primary purpose of supervised release is to facilitate the integration of offenders back into the community rather than to punish them.’ … Moreover, conditions of supervised release under federal law must be ‘reasonably related’ to federal sentencing factors and must involve ‘no greater deprivation of liberty than is reasonably necessary’ to fulfill the statute’s purposes…'”

J.I. v. New Jersey State Parole Board, __ A.3d __ 2017, WL 1057462 (N.J., March 21, 2017). 

Furthermore:

“Third Circuit cases recognize that access to the Internet is ‘essential in modern life for legitimate purposes of communication, commerce, and information-gathering,’ … and therefore an Internet-access condition of ‘supervised release must be supported by some evidence that the condition imposed is tangibly related to the circumstances of the offense, the history of the defendant, the need for general deterrence,’ or similar penological concerns.”

J.I. v. N.J. State Parole Bd.

“The Third Circuit has ruled that a ‘blanket ban’ is overbroad… Thus, even in child pornography cases, the Third Circuit has declined to deny an offender ‘access to email or benign internet usage when a more focused restriction, limited to pornography sites and images, can be enforced by unannounced inspections of material stored on [the offender’s] hard drive or removable disks.'”

Id.

At sentencing, most criminal defendants will be more concerned about minimizing their incarceration time than obtaining access to the Internet. However, what good is limiting active jail time only for the criminal defendant later to find himself or herself being prosecuted for using the Internet outside the scope of his or her sentence? Reduced Internet limitations during probation need to be addressed by the criminal defense lawyer at sentencing.