Wednesday, June 30, 2004
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Court of Appeal Throws Out ‘No-Computers’ Parole Condition
By KENNETH OFGANG, Staff Writer/Appellate Courts
A parole condition prohibiting a sex offender from using computers or otherwise accessing the Internet is unlawful, at least where the underlying crime did not involve a computer or the Internet, the Court of Appeal for this district ruled yesterday.
Div. Six held that a Ventura Superior Court judge was wrong when she said the condition was properly imposed on a convicted child molester because it might deter him from future criminality.
“Restrictions upon access to the Internet necessarily curtail First Amendment rights,” Presiding Justice Arthur Gilbert wrote. The importance of the Internet as a means of communication necessitates that restrictions on its use be narrowly tailored, the jurist explained.
The court found it unnecessary to grant relief to the parolee, Ramon Stevens, because the Board of Prison Terms modified the condition after the panel issued an order to show cause. Stevens is now permitted to use a computer so long as he does not access pornographic sites or communicate with minors.
Case Not Moot
But the panel denied the state’s request to dismiss the petition as moot. With over 115,000 parolees being released every year in California, and many of them likely to wish to join the 200 million Americans estimated to be using the Internet, a resolution on the merits is needed to provide guidance to parole authorities, Gilbert said.
Stevens, who pled guilty to molesting a child he had met in a youth program, was released in 2002 after five years in prison. He was ordered not to “possess or have access to computer hardware or software including the internet.”
In his habeas corpus petition, Stevens alleged that the condition prevented him from earning a living as a writer or Internet entrepreneur. Stevens represented himself, while Deputy Attorney General Nicholas Paul argued for the state.
Gilbert acknowledged society’s “strong interest in protecting its youth from the harmful aspects of obscene material.” But federal appellate cases upholding bans on computer use and possession by persons on parole or probation have involved defendants who used computers to commit or facilitate crimes, he commented.
Federal Rulings Cited
Even then, the jurist noted, the Second U.S. Circuit Court of Appeals has rejected such bans, likening them to prohibiting someone convicted of mail fraud from sending letters or someone convicted of telephone fraud from using a phone. And the Third and Tenth circuits, Gilbert pointed out, have rejected absolute bans on computer and Internet use in favor of an approach requiring more narrowly tailored restrictions, such as unannounced inspections of hard drives and computer disks to determine whether a parolee or probationer has used the computer for an illegitimate purpose.
In Stevens’ case, the Board of Prison Terms was “legitimately concerned that a released child molester’s unfettered access to a computer might result in criminal conduct,” the presiding justice wrote.
“But BPT’s task was less daunting than it appeared to be,” Gilbert explained. It could have monitored Stevens’ computer use through inspections, by placing monitoring software on his computer that would automatically generate an e-mail to his parole officer if he tried to access a pornographic site, or by “surreptitiously inviting him to respond to government-placed Internet ads for pornography.”
The jurist referred to William S. Gilbert’s lyrics to “Pirates of Penzance,” suggesting that a felon’s “capacity for innocent enjoyment is just as great as any honest man’s.” It was at least the sixth time the jurist has cited the 19th Century English bard—an inspiration, rather than a relation—in a published opinion.
The case is In re Stevens, B170328.
Copyright 2004, Metropolitan News Company