Posted On: February 25, 2010

Federal Courts are Split on the Imposition of Internet Bans as Penalty

In Philadelphia, the United States Court of Appeals for the Third Circuit, recently overturned a lifetime internet ban, which was imposed as part of a convicted child sex offender’s sentence. In reversing the defendant’s internet ban, the Third Circuit displayed its stance on the argument of internet as a right versus a privilege. The defendant, in the appeal, had been sentenced to fifteen years imprisonment, followed by a lifetime of restricted internet access as a preventative measure against recidivism; he pled guilty to transferring photographs of children engaged in sexual acts via the internet, caught by an FBI agent who was undercover as one of his recipients.

The Third Circuit noted that the longest internet ban ever upheld by that Court was a ten year ban, following a twenty year prison sentence. The Eleventh Circuit recently upheld an unconditional lifetime ban on internet privileges, where the defendant was sentenced to six years imprisonment for traveling across state lines to have sexual relations with a minor. The judiciary system affords broad discretion when applying “special conditions” to probation and parole. This concept is rooted in the need for judges to weigh each defendant’s qualities, on a case by case basis, in order to determine how to best protect society and rehabilitate the defendant upon their release from custody. The variance in the Circuit Court opinions illustrates the broad discretion afforded to the Courts. Inevitably, the issue of internet privilege bans is one that must be brought before, and decided by the Supreme Court of the United States.

The argument for banning internet privileges is obvious; to prevent convicted child sex offenders from committing future harm upon release from prison. Those against internet bans raise the Civil Rights issues involved. As we advance further into the twenty-first century, the internet becomes more and more a vital part of our everyday lives. We use the internet to buy things, sell things, communicate, research, and even find employment. Banning one’s internet privileges not only prejudices a defendant in today’s society, but also severely impacts their future when the internet becomes even more necessary. Although the right to internet access is not provided by the Bill of Rights, proponents of the argument cite to the First Amendment’s right to freedom of speech as one way an internet ban is unconstitutional. Some proponents of banning privileges, such as the Motion Pictures Association, have proposed a “three-strike” policy when dealing with copyright infringers. Such a policy, when applied to child sex offenders, would likely invite extreme criticism. Until the issue is decided by the Supreme Court, however, the imposition of internet bans will be decided on a case by case basis, impacted by the area of the country where the crime occurred.

Crimes against Minors

Knowingly persuading, inducing, enticing, or coercing a minor to engage in illegal sexual activity is a violation of both State and Federal laws. If you are being investigated or have been arrested and charged with sexual abuse of a minor, attempting to do so, or other crimes against minors such as possession of child pornography, the Law Offices of Marc Neff can help. There are defenses which are available to you, so do not hesitate to contact the Law Offices of Marc Neff immediately.

For a confidential consultation call (215) 563-9800 or email marc@nefflawoffices.com.

Posted On: February 22, 2010

Supreme Court of the United States Hears Arguments on the Detainment of Sexual Predators

The Supreme Court recently heard arguments in United States v. Comstock, an appeal brought by government prosecutors against four defendants who had completed their prison sentences for possession of child pornography and/or sexual abuse of a minor, but were still being held as “sexually dangerous.” The four defendants were arrested, charged and convicted under the Adam Walsh Act; legislation enacted in 2006 which increases penalties for certain crimes against minors, including child pornography. Comstock only challenges the provision of the legislation which allows for the indefinite detainment of those deemed sexually dangerous.

Government prosecutors argued vehemently that the Government has a responsibility to ensure sexual predators are not released into the public, in a society where the recidivism rate for sexual offenses remains high. Precedent was argued, in that inmates who suffer from highly contagious diseases have had their confinement extended beyond their sentences due to the danger they pose to outside society. A comparison was made between communicable diseases and sexual deviation which prosecutors argued is a mental illness. According to federal prosecutor Elena Kagan, it is the government’s responsibility to ensure imprisoned individuals are released responsibly into society.

Many were shocked by the Supreme Court’s choosing to hear the appeal in Comstock, as lower courts had ruled that continued confinement of federal inmates, who have completed their sentences, overstepped the government’s authority. The government cannot constitutionally detain citizens due to fear they will commit a crime without evidence to justify their suspicions. Mental illness alone cannot be grounds for confinement without some showing of a risk posed by the defendant. Other constitutional issues to be considered are potential violations of the Bill of Rights, for example the Fourth Amendment right to due process and the Eighth Amendment ban on cruel and unusual punishment. A criminal sentence is generally determined based on established statutory guidelines. Many mitigating and aggravating factors are considered when determining the sentence of a convicted defendant. A Supreme Court reversal of the lower courts’ decisions in Comstock would essentially void the sentencing process, as defendants who complete their mandated sentences could suffer further confinement regardless of the term of imprisonment they were given. Conceivably, a convicted sex offender, sentenced to five years imprisonment, could serve a life sentence based on their perceived threat to society upon release. Justice Scalia went as far as to say that allowing such practice is a recipe for “the federal government taking over everything.”

Those convicted of crimes are still subject to the protections of the Constitution of the United States. An experienced criminal defense attorney protects a defendant’s rights during legal proceedings, while imprisoned and beyond. If you have been charged with, or convicted of a sexual offense, you still have constitutionally protected rights which the Law Offices of Marc Neff will ensure are not infringed upon. For a confidential consultation, please contact our office at 215-563-9800 or via email at marc@nefflawoffices.com.