Collateral consequences

The U.S. Supreme Court decided City of Ontario v. Quon today. Quon is a case about searching pagers and cellphones.

Our clients convicted of child pornography offenses and certain other offenses in which the internet is case related are restricted in computer access post-release. I mention Quon because of an interesting comment at Sentencing Law & Policy.

I recently had to deal with the Federal Probation Service and the Air Force Clemency & Parole Board about a former now paroled client alleged to have improperly used computers to search for employment. Employment is necessary for parole, and most state funded employment offices, and many employers require applicants to use computers to search for a job or to apply for a job. We resolved the case in the client’s favor and parole was not revoked. The parole and FPS rules do allow computer use in limited circumstances related to seeking employment. The rules are bureaucratic and subject to misunderstanding. Basically the rules require a new “permission” to use a computer each time. So going to Home Depot in the AM and Lowes in the PM requires two permissions. So, here is the SL&P comment on an aspect of Quon.

Though Quon will be of greatest interest to those involved in traditional debates over privacy and police-practices, the opinion for the Court by Justice Kennedy has this notable flourish that could have some broader impact: Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. Relatedly, in a rich and spot-on solo concurrence that takes a variety of swipes at the majority, Justice Scalia concludes by lamenting the legal challenge presented if and when the Court embraces a legal ruling “that requires evaluating whether a given gadget is a necessary instrument for self-expression, even self-identification.” So, what does this have to do with sentencing law and policy in general or sex offender restrictions in particular? Well, I do not think it is much of a stretch for persons to contend in these modern technological times that access to the internet (and maybe even access to a Facebook or Twitter account) is now “essential means or necessary instruments for self-expression, even self-identification.” But, as regular readers know, a fair number of sex offenders these days are facing release conditions that fully or at least significantly restrict their rights to access the internet and/or social networking websites. I suspect that this line from Quon might find its way into a few effort in lower courts to strike down limits placed on some offenders’ use of modern means of digital communication.

CAAF has previously decided some cases about post-release restrictions on military prisoners, but none on this specific restriction. I doubt CAAF would decide an issue of post-release restrictions on the use of computers or the internet. See e.g. United States v. Pena, 64 M.J. 259 (C.A.A.F. 2007)(review of post-trial confinement and release conditions on direct appeal is limited to the impact of such conditions on the findings and the sentence. . . . As a general matter, the collateral administrative consequences of a sentence, such as early release programs, do not constitute punishment for purposes of the criminal law.).