Appeals Court Overturns 30 Year Ban on Computer Use for Sex Offender

April 5, 2010 by David S. Seltzer

My work as a Miami cyber crime criminal defense attorney gives me a firsthand look at the way our society’s restrictions on sex offenders affect their lives and their ability to move on in life. So I was pleased to see a ruling from a federal appeals court that recognized that one sentence went too far. The U.S. Court of Appeals for the District of Columbia ruled April 2 that the trial court may not sentence Mark Wayne Russell, 50, to 30 years without the use of a computer for any reason. Wired’s Threat Level blog reported that the majority in the ruling called the ban “substantively unreasonable” and said it “aggressively interferes with the goal of rehabilitation.” It sent the case back to lower court with orders to, at a minimum, give Russell’s probation officer flexibility.

Russell’s sentence also included 46 months in federal prison for trying to meet a 13-year-old girl (really an undercover officer) in person for sex, after chatting with her online. Before his arrest, he worked as an applied systems engineer for Johns Hopkins University. The computer ban would certainly keep him from pursuing a job in a technical field like this, the majority wrote. The opinion also noted that computers are now a necessity in many blue-collar jobs. In fact, it said, Russell was unable to apply for or take retail and fast-food jobs because of the computer ban. This directly conflicts with rehabilitation, a goal of sentencing, and also conflicts with Russell’s right to be deprived of no more liberty than necessary to achieve sentencing goals. A separate concurring opinion by Judge Karen LeCraft Henderson disagreed that the ban was a substantial burden on Russell’s liberty or that it would keep him from getting a job.

In making this ruling, the D.C. Circuit joined the Third U.S. Circuit Court of Appeals, which overturned a lifetime ban on the Internet for a sex offender in January. Those two circuits have now split with the Eleventh Circuit, which upheld a similar ban in August. As a Fort Lauderdale cyber crime criminal defense lawyer, I am glad the D.C. Circuit is in the majority. As the opinion said, even jobs that don’t require daylong computer use often still require computers for administrative tasks. For a white-collar worker like Russell, a total ban on computer use would mean giving up his career and training. Increasingly, such a ban also means giving up participation in certain aspects of society. Technically, computers are all around us -- in ATMs, cars, cash registers and cell phones. Applied as literally as possible, the computer ban could have made it difficult for Russell to function outside of Amish country.

Some sentencing orders are sensible restrictions intended to keep the defendant away from opportunities to repeat the crime. For example, I think most Americans would support a ban on driving for a repeat drunk driver with an unaddressed alcohol abuse problem. But as this case shows, other restrictions can overreach, banning activities not closely related to the crime or assuming a likelihood of recidivism that the defendant hasn’t shown. As a West Palm Beach cyber crime criminal defense attorney, I have noticed that sex crimes are among the few crimes that generate this sort of harsh, overreaching sentencing. Not surprisingly, they are also among the most emotionally charged crimes. Until our politicians and courts can resist making decisions based on emotion or appeal to voters, offenders like Russell will continue showing up in appeals courts.