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Blanket court bans on computer use often are substantively unreasonable

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Upon his guilty plea to travel with intent to engage in illicit sexual conduct, Mark Wayne Russell was sentenced in the D.C. federal trial court to imprisonment and 30 years of probation that included a special condition of no use of computers. U.S. v. Russell, ___ F.3d ___ (D.C. Cir., April 2, 2010).

Last week, the D.C. Circuit ordered a resentencing, finding the thirty-year computer ban to be substantively unreasonable. Here is some of the opinion’s key language:

More important for analysis under § 3583(d)(2), the computer restriction affirmatively and aggressively interferes with the goal of rehabilitation. See, e.g., United States v. Holm, 326 F.3d 872, 878 (7th Cir. 2003). It is hard to imagine white collar work in 2010 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. He holds a Bachelors of Science degree in engineering and a Masters degree in Strategic Intelligence, see Presentence Investigation Report at 8, and his 10 years as an applied systems engineer at Johns Hopkins suggest a work life fitted to the skills so acquired. Even a lot of blue collar work requires some computer use. Although we cannot rely on evidence developed since the sentence, it is totally unsurprising in the realities of the modern world that in his post-release search for employment 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. Oral Argument Recording at 30:45-31:40. See United States v. Voelker, 489 F.3d 139, 148-49 (3rd Cir. 2007) (explaining that a restriction prohibiting defendant, who worked as a respiratory therapist before his arrest, from using computer equipment was overly burdensome because his employment “‘necessarily entails access to and the use of computers and computer equipment for record keeping [and] patient care’”). Because the computer restriction prevents Russell from continuing in a field in which he has decades of accumulated academic and professional experience, it directly conflicts with the rehabilitative goal of sentencing. It also, of course, places a substantial burden on Russell’s liberty, which under 18 U.S.C. § 3583(d)(2) must be no greater than reasonably necessary to achieve the goals of deterrence as well as rehabilitation.

The district court’s restriction is scheduled to elapse more than three decades after sentencing. A provision for modification by the probation department–a minimum change suitable on remand–would allow the restriction to adjust to ongoing developments in technology and to secure a reasonable balance between the statute’s rehabilitative and deterrence goals. See Love, 593 F.3d at 12. Given the ample room for adjusting the sentence to enable a better balance among those goals, the computer restriction in its current form is substantively unreasonable…

We have found no instance other than Paul where a court has upheld a prohibition on the defendant’s use of computers or the internet that was not subject to relaxation by the probation office. Many cases have upheld restrictions subject to such relaxation. Love, 593 F.3d at 11-13; Sullivan, 451 F.3d at 892-896; United States v. Bender, 566 F.3d 748, 751-52 (8th Cir. 2009); United States v. Lay, 583 F.3d 436, 449-50 (6th Cir. 2009); United States v. Thielemann, 575 F.3d 265, 278 (3rd Cir. 2009); United States v. Alvarez, 478 F.3d 864, 866-68 (8th Cir. 2007); United States v. Johnson, 446 F.3d 272 (2nd Cir. 2006); United States v. Crandon, 173 F.3d 122, 125 (3rd Cir. 1999). In several of these cases defendants’ conduct was more egregious than Russell’s–he had either completed sex acts with a child (Bender, Alvarez, Johnson, and Crandon), or caused another to do so in order to obtain images of the conduct (Thielemann), or took more drastic steps toward completion of the acts than did Russell (Lay (defendant flew to site of intended rendezvous after developing a ruse to separate the minor from his or her mother for the weekend)). In contrast, the courts have generated a large universe of decisions rejecting such unmodifiable restrictions, typically invoking (as here) the public interest in the defendant’s rehabilitation through the productive use of his or her skills. See, e.g., Voelker, 489 F.3d at 144-50; United States v. Mark, 425 F.3d 505, 508-11 (8th Cir. 2005); Holm, 326 F.3d at 877-78; United States v. Sofsky, 287 F.3d 122, 124 (2nd Cir. 2002); United States v. White, 244 F.3d 1199, 1206 (10th Cir. 2001). In at least one such case, White, the defendant’s conduct, unlike Russell’s, manifested a course of completed child molestations. Cf. United States v. Perazza-Mercado, 553 F.3d 65, 69-74 (1st Cir. 2009) (vacating a restriction prohibiting defendant from using the internet at his home for the fifteen year period of his 15 supervised release, where his molestation of a nine-year old with special needs whom he supervised had not involved internet use).

U.S. v. Russell.