James K. Bredar, Chief Judge.
Allen Jeffrey Maxson ("Defendant") pleaded guilty to a one count information charging him with abusive sexual contact in violation of 18 U.S.C. § 2244(a)(5). The Court imposed a sentence of 172 months' imprisonment to be followed by supervised release for a term of life. The Court also imposed certain special conditions of supervised release, including that Defendant "shall participate in a sex offender treatment program" and "shall follow the rules and regulations of the sex offender treatment program as directed by the probation office." (ECF No. 54, Judgment In A Criminal Case, at 4.) The Court, with the parties' consent, retained jurisdiction over the case in order to resolve an outstanding issue regarding the propriety of a special condition of supervised release requested by the Government. That issue, along with another subsequently raised jointly by the parties, has been briefed (ECF Nos. 58, 60, 62, 63, 66 & 67), and no hearing is required, Local Rule 105.6 (D. Md. 2016). For the reasons explained below, the Court declines to impose restrictions on Defendant's possession or use of adult pornography as a condition of supervised release. The Court also amends the restriction previously imposed on Defendant's use of the Internet.
District courts have "broad latitude" to impose appropriate conditions of supervised release. United States v. Armel, 585 F.3d 182, 186 (4th Cir. 2009). However, any condition must satisfy two fundamental prerequisites. First, the condition must be "`reasonably related' to the factors referred to in 18 U.S.C. § 3583(d)(1), which include `the nature and circumstances of the offense and the history and characteristics of the defendant,' id. § 3553(a)(1); `protect[ing] the public from further crimes,' id. § 3553(a)(2)(C); and `provid[ing] the defendant with needed ... medical care[ ] or other correctional treatment,' id. § 3553(a)(2)(D)." Armel, 585 F.3d at 186 (alterations in original). Second, the condition must "`involve[ ] no greater deprivation of liberty than is reasonably necessary' to achieve the goals enumerated in § 3553(a)." Id. (quoting 18 U.S.C. § 3583(d)(2)) (alteration in original). Additionally, the sentencing court must provide "the rationale for the special conditions it imposes." Id.; see, e.g., United States v. Shannon, 743 F.3d 496, 502 (7th Cir. 2014) ("Adequate findings are especially important when the subject matter of the ban is a lifetime ban on otherwise-legal material."); United States v. Warren, 186 F.3d 358, 366 (3d Cir. 1999) ("[C]ourts of appeals have consistently required district courts to set forth factual findings to justify special ... conditions.").
At sentencing, the Government requested that the Court impose the following condition of supervised release:
(ECF No. 39, Presentence Investigation Report at 23.) The Court declined to impose the condition at the time because the Government had not presented sufficient evidence of a relationship between the
Despite the additional time afforded by the Court, the Government has not presented sufficient evidence to support its request that Defendant be prohibited from possessing all forms of pornography. The Government's proposed condition rests on the assumption that access to adult pornography increases the likelihood that an individual convicted of sex abuse of minor will reoffend. But the Government has been unable to find a single expert willing to support this position in Court. Nor has the Government offered any studies or articles that support a connection between the viewing of adult pornography and an increased risk of inappropriate sexual activity with children.
The Court's conclusion is consistent with that reached by other courts (and cited by Defendant) that have rejected similar conditions of supervised release based on inadequate factual support. See, e.g., United States v. Martinez-Torres, 795 F.3d 1233, 1237 (10th Cir. 2015) ("The district court's sole expressed reason for the condition [banning adult pornography] was that Defendant had been convicted of a sex offense — intentionally causing the penetration of the sexual organ of a child
Moreover, neither the U.S. Probation Office nor the Sentencing Commission specifically recommends a blanket ban on adult pornography as a special condition of supervised release for individuals convicted of sex offenses. See U.S.S.G. § 5D1.3(d)(7). Both, however, do recommend that courts impose a condition requiring that individuals convicted of sex offenses participate in a sex-offense treatment program. See id.; U.S. Courts, Overview of Probation and Supervised Release Conditions, Chapter 3: Restrictions on Viewing Sexually Explicit Materials. And the Probation Office further recommends that a prohibition on viewing and possessing adult pornography may be appropriate when it is "based on the specific risks in the individual case." U.S. Courts, Overview of Probation and Supervised Release Conditions, Chapter 3: Restrictions on Viewing Sexually Explicit Materials. Importantly, the Probation Office states that, "[d]ue to the complex and individualized nature of sex offense-specific risk factors, probation officers should not recommend this condition until there has been an assessment of sexual deviance and risk by a sex offense-specific treatment provider." Id. (emphasis added). The Court finds that the individualized analysis recommended by the Probation Office is consistent with and appropriately tailored to achieve the goals enumerated in § 3553(a). Accordingly, the Court finds that, to the extent a sex offense-specific treatment provider determines that Defendant's individual characteristics present specific risks associated with viewing adult pornography, Defendant may be prohibited from viewing adult pornography as part of an approved course of treatment, pursuant to Special Condition # 10 imposed by the Court. (ECF No. 54 at 4.); see, e.g., United States v. Brigham, 569 F.3d 220, 233-34 (5th Cir. 2009) (affirming three-year ban on possession of "pornographic sexually oriented or sexually stimulating materials" where defendant's sex-offender treatment counselor testified that even sexually explicit images of adults would reinforce the defendant's previous behavior involving child pornography). The Probation Officer should, in consultation with a sex offense treatment provider, "assess the need for this condition on an ongoing basis and modify the condition if treatment progress and goals of supervision indicate a modification is appropriate." U.S. Courts, Overview of Probation and Supervised Release Conditions, Chapter 3: Restrictions on Viewing Sexually Explicit Materials.
The parties have jointly asked the Court to reconsider an additional supervised release condition already imposed by the Court. The condition at issue restricts Defendant from accessing any "computer systems, Internet-capable devices and/or similar electronic devices at any location... without the prior written approval of the U.S. Probation or Pretrial Services Officer." (ECF No. 54 at 4.) Both parties ask that the Court reconsider the propriety of this condition in light of the Supreme Court's recent decision in Packingham v. North Carolina, ___ U.S. ___, 137 S.Ct. 1730, 198 L.Ed.2d 273 (2017), which struck down a North Carolina statute that prohibited convicted sex offenders — including those no longer on probation, parole, or supervised release — from accessing social media sites on the Internet.
Defendant's position is somewhat less clear. Defendant did not object to this special condition before or during sentencing. Defendant originally raised this issue approximately two months after Packingham was decided and argued that, in light of Packingham, the computer-use restriction "is in violation of the Constitution." (ECF No. 58 at 2.) However, Defendant subsequently shifted course in his later filings and expressly disavowed that he was mounting a constitutional challenge to the computer-use restriction based on Packingham. (ECF No. 67 at 2 ("Mr. Maxson does not argue that the computer restriction must be struck down as facially unconstitutional, nor that it could never be supportable as a supervised release condition for any criminal defendant. Rather, Mr. Maxson seeks to remove the computer restriction condition in his case, on the grounds that it fails to meet the statutory requirements of 18 U.S.C. § 3583(d).").) Defendant now contends that Packingham simply adds a "constitutional dimension" to the "`deprivation of liberty' prong of the statutory analysis." (Id.) Yet, Defendant cites exclusively to pre-Packingham case law, all of which was equally available to him — and equally persuasive — when he was sentenced and failed to challenge the computer-use restriction. True, Packingham may have somewhat strengthened Defendant's position, but it does not excuse his failure to raise such a readily available argument in the first instance. In short, the Court is troubled by Defendant's use of Packingham to revive his otherwise waived argument about the computer-use condition. That said, the Government does not object to reconsideration of this condition, and the Court has before it everything it needs to address the issue on the merits; therefore, it will do so.
The Court believes that Defendant's argument has merit even in the absence of Packingham. In particular, Defendant raises two salient points. First, a broad restriction on computer and Internet use is not reasonably related to the relevant sentencing factors where, as here, the defendant's criminal conduct did not involve the use of a computer/the Internet to "facilitate victimization of children."
Second, the fact that Defendant may use the Internet if he obtains prior written approval from his probation officer cannot salvage this otherwise overly broad restriction. A number of circuits have rejected similar conditions and noted that a district court may not shift to the probation office its responsibility to ensure that a supervised release condition is consistent with the goals of sentencing. See LaCoste, 821 F.3d at 1192 ("If a total ban on Internet use is improper but a more narrowly tailored restriction would be justified, the solution is to have the district court itself fashion the terms of that narrower restriction. Imposing a total ban and transferring open-ended discretion to the probation officer to authorize needed exceptions is not a permissible alternative."); Ramos, 763 F.3d at 61 ("This authority of [P]robation or a future court to modify a sweeping ban on computer or internet use does not immunize the ban from an inquiry that evaluates the justification for the ban in the first instance.").
Simply put, given the integral role that computers and the Internet play in nearly every facet of modern-day life — a point driven home by the Supreme Court in Packingham — the Court must be careful not to impose a greater deprivation of liberty than is necessary. See 18 U.S.C. § 3583(d); Packingham, 137 S.Ct. at 1735 (noting that the Internet is "the most important place[ ] (in a spatial sense) for the exchange of views"); LaCoste, 821 F.3d at 1191 ("Use of the Internet is vital for a wide range of routine activities in today's world.... Cutting off all access to the Internet constrains a defendant's freedom in ways that make it difficult to participate
Accordingly, Additional Condition # 6 will be modified to read as follows:
For the foregoing reasons, the Government's request that Defendant be prohibited from viewing or possessing adult pornography as a condition of supervised release is DENIED. The Court shall issue an Amended Judgment modifying Additional Condition # 6 consistent with the foregoing Memorandum.