Academic journal article William and Mary Law Review

"You Fall into Scylla in Seeking to Avoid Charybdis": The Second Circuit's Pragmatic Approach to Supervised Release for Sex Offenders

Academic journal article William and Mary Law Review

"You Fall into Scylla in Seeking to Avoid Charybdis": The Second Circuit's Pragmatic Approach to Supervised Release for Sex Offenders

Article excerpt

TABLE OF CONTENTS

INTRODUCTION
I. THE ROLE OF THE COMPUTER AND THE INTERNET IN MODERN LIFE
II. THE GOALS AND RATIONALE OF SUPERVISED RELEASE
III. THE INTERNET AND THE SEX OFFENDER
IV. THE CIRCUIT SPLIT
   A. Supervised Release Conditions Vacated
      1. Second Circuit (Take One): No Total Ban
   2. Third Circuit: Restrictions Must Be Focused
   3. Tenth Circuit: Limited Monitoring Only
   B. Internet and Computer Restrictions Permitted by Courts
      1. Fifth Circuit: Internet Bans Meet Statutory Goals
      2. Ninth Circuit: Limitations Do Not Deprive Liberty
      3. Eleventh Circuit: Computer Use Prohibited
   C. The Second Circuit Approach: Using Technology To
      Avoid Scylla and Charybdis
      1. United States v. Lifshitz: Analyzing Technological Solutions
      2. United States v. Balon: Efficiency of Technological Solution
         Is Vital
   D. The Middle Ground of the Second Circuit
V. THE PRAGMATISM OF THE SECOND CIRCUIT
CONCLUSION

INTRODUCTION

In the past decade, Americans' access to communications technology has grown significantly. (1) The number of U.S. homes with computers grew from about 36 percent in October of 1997 to over 61 percent in October of 2003. (2) A more recent report concludes that 68 percent of all Americans own a desktop computer, while 30 percent own a laptop. (3) Meanwhile, U.S. households with Internet access grew from under 45 percent in 2000 to over 60 percent in early 2007. (4) The use of high-speed and broadband connections similarly increased, growing from 5 percent in 2000 to over 45 percent in early 2007. (5) The growth of Internet access has led to corresponding growth in Internet use: tens of millions of Americans now use the Internet for everything from communicating through e-mail and instant messaging (6) to shopping and conducting bank transactions. (7)

Although the advent of the Internet has allowed for the many benefits of increased and eased communication, the Internet has also facilitated additional criminal activities, (8) Aside from providing a new avenue for confidence men and snake oil peddlers, (9) the Internet has created new spawning grounds for prostitution, (10) child exploitation, and child pornography). (11) The interplay of these two developments--the great benefits to society and the great benefits to criminals--has created a split among American courts over how to deal with access to the Internet for sexual offenders after their release from the correctional system. (12) In an effort to promote rehabilitation, federal law requires a sentence of supervised release following imprisonment for certain crimes. (13) As part of that sentence, the courts may impose various conditions on offenders, some mandatory--such as a prohibition on the use of controlled substances--and others discretionary. (14) The court may impose discretionary conditions as it sees fit, subject to certain restrictions. (15) Peddlers and users of child pornography often receive such discretionary conditions that restrict their access to the Internet or to computers in general. (16)

This Note examines how the circuit courts of appeals have approached the issue of Internet restrictions for sexual offenders on supervised release, both the courts that have upheld them and the courts that have vacated them. This Note argues that the approach utilized by the Second Circuit most effectively addresses the primary goal of supervised release: rehabilitation of the offender. The Second Circuit Court of Appeals has taken the pragmatic middle ground in its approach to the question of restrictions on sexual offenders' use of computers and the Internet. This approach allows lower courts and probationary officers to harness technological advances for effective and reasonable monitoring of sexual offenders' computer use. Like negotiating between the mythological perils Scylla and Charybdis, (17) this type of monitoring avoids the opposing extremes: the Scylla of prohibiting computer and Internet use altogether--a truly draconian restriction given the significance of the computer in everyday life--and the Charybdis of not placing any restrictions on the use of the Internet or computers by sexual offenders. …

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