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Sex Offender Doesn't Need Internet Monitoring Software: 5th Cir.

By Mark Wilson, Esq. | Last updated on

The Fifth Circuit Court of Appeals this week reversed a district court order requiring a man convicted of sexual offenses against a 14-year-old to maintain Internet monitoring and filtering software on his computer for the rest of his life.

While acknowledging the "broad discretion" district courts have in imposing conditions of supervised release, the Fifth Circuit emphasized that supervised-release conditions must be "reasonably related" to the defendant's conduct.

Lifetime Firewall

Fernando Fernandez engaged in sex offenses with a 14-year-old and was sentenced to four years in prison. The offenses weren't violent and had nothing to do with the Internet. Fernandez moved from Texas to Louisiana after he was released in 2009, but failed to register as a sex offender in Louisiana.

For that, he got 21 months with a special condition that he install and maintain, at his own expense, "filtering software on any computer he possesses or uses which will monitor/block access to sexually oriented websites." The district court justified the condition in two sentences: "'Failure to register' means he's a sex offender in the past. Ease of access through the Internet."

The U.S. Code and the federal sentencing guidelines both caution that special conditions of supervised release must be "reasonably necessary" and "reasonably related" to the crime of conviction. The sentencing guidelines say specifically that limitations on computer use apply only "in cases in which the defendant used such items."

On these facts, the court easily concluded that Fernandez's crimes -- sex with a minor and failing to register as a sex offender -- had little to do with the government's general interest in possibly, maybe, theoretically deterring sex offenses facilitated by the Internet. Such a sweeping condition, said the Fifth Circuit, couldn't be justified by "general concerns about recidivism or that Fernandez would use a computer to perpetrate future sex-crimes."

Do Harsh Penalties Work?

Sex offender laws have come under increasing fire for being too harsh. Laws preventing registered sex offenders, for example, from living within thousands of feet from schools, parks, and churches basically ensures that they can't live in a city (which may or may not actually be the purpose). In several states, recidivist sex offenders must wear GPS monitoring devices for the rest of their lives.

Restrictions on sex offenders' access to the Internet has also come under fire; a federal judge recently blocked a California law requiring registered sex offenders to notify law enforcement of all their online usernames. That, said the court, was overly broad and infringed on sex offenders' right to anonymous speech.

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