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The sometimes long and prickly road of probation

Jun 02, 2009 The sometimes long and prickly road of probation

Bill of Rights. (From the public domain.)

NOTE: Underdog’s June 2 blog entry is being posted late. Stay tuned for a resumption of regular daily postings.

Criminal defendants sometimes focus on their time out of jail versus in jail, and not enough time on the often onerous and even draconian deprivations of liberty involved during supervised probation and parole.

Consider William Robert Bender. He got a four-year prison sentence for sexual activity with an underage female, and was ordered to be on five years of supervised release thereafter. U.S. v. Bender, ___ F.3d ___ (8th Cir., June 2, 2009). His probation conditions included no access to so-called “pornography” (which has no legal definition), no unsupervised contact with minors, and no access to libraries, lest he use the Internet there or look for children there.

Mr. Bender was found in violation of supervised release for entering a library and using a computer to access “pornography”, on top of being in a place (a library) frequented by minors.

On appeal from Bender’s sentence for violating supervised release, the Eight Circuit vacated some of his conditions of supervised release and remanded for sentencing. For instance, the Eighth Circuit held that a total ban from access to libraries is disfavored (including consideration of inmates’ needs to use libraries) and vacated that condition. The Eighth Circuit also found that his supervised release conditions for no access to “pornography” and ability to be near minors unchaperoned was not tailored well enough to his circumstances rather than to a general class of similarly-situated people.

Bender is an important read for its addressing similar issues in other circuits, and because similar supervised release conditions are very common by now for those convicted of soliciting or engaging in sexual activity with minors. Jon Katz.

ADDENDUM: Thanks to my brother lawyer Larry Sutter — Senior Counsel, FriendFinder Networks Inc. — for alerting me to this Bender case.

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