by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit held that the U.S. District Court for the Western District of North Carolina’s special conditions of release that banned legal pornography and all internet access were overbroad and not reasonably related to the objectives of 18 U.S.C. § 3583(d)(1) absent some evidence linking pornography and use of the internet to Robert Dale Ellis’ offense or criminal history.

In 2013, Ellis pleaded guilty in federal court to failing to register as a sex offender. He was required to register due to convictions from 2005 in North Carolina for possessing child pornography. Nothing in the record indicated his North Carolina offenses involved the internet or legal pornography. After release from federal prison in 2014, Ellis began serving a five-year term of supervised release with the standard conditions. He was violated three times and returned to prison for 10 months, 9 months, and 11 months, respectively. Each time he was also sentenced to a new period of five years of conditional release. He was violated for conduct including dishonesty, unauthorized travel out of the Western District of North Carolina, and failure to comply with mental health and sex offender treatment.

However, upon his last violation, the district court imposed two special conditions of supervised release: “no Internet access” and “that he shall not possess any legal or illegal pornographic material, nor shall he enter any location where such materials can be accessed, obtained, or viewed, including pictures, photographs, books, writings, drawings, videos, or video games.” The district court’s justification for imposing the conditions was based on Ellis’ “overt resistance to treatment” and to compel him to comply. Ellis appealed the special conditions.

The Fourth Circuit observed “[a] sentencing court must craft conditions of supervised release that comply with the requirements listed in 18 U.S.C. § 3583(d).” United States v. Van Donk, 961 F.3d 314 (4th Cir. 2020). The conditions must be: (1) “reasonably related” to the nature and the circumstances of the offense, the history and characteristics of the defendant, and the statutory goals of deterrence, protection of the public, and rehabilitation; (2) “no greater [a] deprivation of liberty than is reasonably necessary” to achieve those goals; and (3) consistent with any relevant policy statements issued by the Sentencing Commission. United States v. McMiller, 954 F.3d 670 (4th Cir. 2020). Conditions that restrict fundamental rights are permissible only when directly related to deterring the defendant and protecting the public. United States v. Crandon, 173 F.3d 122 (3d Cir. 1999). Restrictions on otherwise legal pornography are permissible under § 3583(d) where the district court adequately explains why such restrictions are appropriate and the record supports such a finding. Van Donk.

Because supervised release is supposed to advance a defendant’s rehabilitation, many Circuits have refused to uphold a ban on internet use unless the internet was integral to the offense of conviction and/or the defendant’s history of misconduct. United States v. Perazza-Mercado, 553 F.3d 65 (1st Cir. 2009). (See opinion for collection of cases refusing to uphold internet ban.) Simply because an offense is sometimes committed with the help of a computer doesn’t mean a district court can restrict the internet access of anyone convicted of that offense. United States v. Burroughs, 613 F.3d 233 (D.C. Cir. 2010). A complete ban on internet access is a broad restriction that imposes a massive deprivation of liberty. Packingham v. North Carolina, 137 S. Ct. 1730 (2017). Cutting off access to the internet makes it nearly impossible to participate in society and the economy, viz., to find work, obtain government services, engage in commerce, stay abreast of the news, and communicate with friends and family. United States v. LaCoste, 812 F.3d 1187 (9th Cir. 2016). For these reasons, a total ban on internet access will seldom satisfy the “least restrictive alternative” requirement of § 3583(d)(2). United States v. Holm, 326 F.3d 872 (7th Cir. 2003).

A district court has no authority to use a condition of release as a “stick” to compel or encourage desired behavior by a defendant. Van Donk. Such a rationale amounts to punishment, and punishment is an unacceptable basis for release conditions. 18 U.S.C. § 3583(d)(1). Imposing special conditions that don’t comply with § 3583(d) is an abuse of discretion and grounds for vacating the conditions. United States v. Worley, 685 F.3d 404 (4th Cir. 2012).

In Van Donk, the court upheld a special condition that banned legal pornography because a sex offender treatment specialist testified that her knowledge of the defendant and his history caused her to believe pornography would both cause the defendant to recidivate and hinder his rehabilitation. But in the instant case, there was no evidence suggesting legal pornography would have the same effect on Ellis, the Court noted. Ellis was convicted of failing to register as a sex offender based on a previous conviction of possessing child pornography – neither of which were reasonably related to legal pornography.

Further, prohibiting him from places where pornography could be accessed means he couldn’t enter gas stations, convenience stores, libraries, or even homes of friends and families who had internet access. That condition, and the complete ban on internet access, were each overbroad and not the least restrictive alternative, the Court concluded. Finally, the Court ruled that the district court’s justification for imposing the conditions was impermissibly punitive.

Accordingly, the Court vacated the judgment and remanded for entry of a modified judgment striking those conditions. See: United States v. Ellis, 984 F.3d 1092 (4th Cir. 2021).

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