Academic journal article Harvard Law Review

Criminal Law - Supervised Release - Third Circuit Approves Decade-Long Internet Ban for Sex Offender

Academic journal article Harvard Law Review

Criminal Law - Supervised Release - Third Circuit Approves Decade-Long Internet Ban for Sex Offender

Article excerpt

CRIMINAL LAW--SUPERVISED RELEASE--THIRD CIRCUIT APPROVES DECADE-LONG INTERNET BAN FOR SEX OFFENDER.--United States v. Thielemann, 575 F.3d 265 (3d Cir. 2009).

While the thought of prohibiting ex-convicts from using the mail seems ridiculous, several circuits have affirmed email and internet bans - arguably much more draconian restrictions--as release conditions for sex offenders. Courts may impose conditions of supervision on released felons to protect the public and prevent recidivism.(1) However, such conditions must have a clear nexus with the underlying crime (2) and "involve[] no greater deprivation of liberty than is reasonably necessary"(3) to deter criminal conduct; to protect the public from further crimes by the defendant; and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment.(4) Last August, in United States v. Thielemann,(5) the Third Circuit upheld a ten-year special condition of supervised release that prohibited a sex offender from using the internet without prior permission from a probation officer.(6) The court concluded that, even though the internet has become a "ubiquitous presence"(7) that is "virtually indispensable in the modern world,"(8) a ten-year restriction on "computer and internet use ... does not involve a greater deprivation of liberty than is necessary."(9) This decision both highlights the Third Circuit's inconsistent approach to internet prohibition and draws attention to the circuit split on the issue. The practice of banning internet access as a special condition of supervised release is ripe for Supreme Court review. In light of the fact that an internet prohibition restricts personal liberty without a proportional gain in public safety, and the fact that it entirely denies access to a communication and information-gathering tool, such a ban is a violation of the sentencing statute and the First Amendment right to receive information.

On June 26, 2007, a grand jury indicted Paul Thielemann on eighteen counts relating to the production, receipt, distribution, and possession of child pornography.(10) Thielemann later pleaded guilty to one count of receiving child pornography.(11) Additionally, Thielemann admitted in the Memorandum of Plea Agreement that he had participated in online video conversations wherein he encouraged and induced another man to simulate masturbation on a minor.(12) The trial court sentenced Thielemann to the statutory maximum of 240 months' imprisonment.(13) The court also imposed a ten-year term of supervised release with eleven special conditions of supervision.(14) Under the sixth special condition, Thielemann was prohibited from "own[ing] or operat[ing] a personal computer with Internet access in the home or at any other location, including employment, without prior written approval of the probation office." (15)

Thielemann appealed this special condition on the grounds that the district court "set forth no detailed basis for such a prohibition"(16) and that a blanket ban on access to the internet was impermissibly restrictive.(17) In his argument that the prohibition was overbroad, Thielemann relied on the Third Circuit's own language in United States v. Freeman.(18) In that case, the court reversed an internet ban for a convicted sex offender, holding that a condition against barring the offender from "using any on-line computer service without the written approval of the probation officer ... involves a greater deprivation of liberty than is reasonably necessary." (19)

Writing for a unanimous panel, Judge Garth affirmed Thielemann's sentence, including the internet ban, on plain error review.(20) In doing so, the court considered the two elements of the statutory standard for special conditions as provided by 18 U.S.C.A. [section] 3583: the release conditions must be "reasonably related" to a number of statutory factors (21) and must entail "no greater deprivation of liberty than is reasonably necessary to deter future crime, protect the public, and rehabilitate the defendant. …

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