Mandatory curfew, electronic monitoring and other pretrial conditions for defendants indicted on child pornography offenses are unconstitutional, a federal magistrate judge has ruled.
Southern District of New York Magistrate Judge James Francis said portions of amendments to the Bail Reform Act of 1984 promulgated by the 2006 Adam Walsh Child Protection and Safety Act violate the due process clause of the Fifth Amendment because they impose automatic restrictions on fundamental rights.
In United States v. Arzberger, 08 Cr. 894, Francis said those accused of possessing child pornography are entitled to an individualized determination at a bail hearing before being ordered to follow a curfew with electronic monitoring, surrender their weapons and refrain from contacting anyone involved in their cases.
Jason Arzberger's e-mail address was found by Europol agents during a search of the residence of an Italian producer of child pornography. When the agents learned that he had communicated several times in 2005 and 2006 with the producer about obtaining movies, an undercover FBI agent arranged to sell Arzberger pornographic DVDs depicting 12- and 14-year-old girls.
Arzberger was charged with one count of possessing child pornography. He appeared before Francis on Aug. 27, 2008, and was released on $100,000 bond secured by $10,000 in cash.
While he was ordered to undergo drug testing and a mental-health evaluation, Francis declined to order electronic monitoring.
Two days later, the government moved to add additional conditions as required by 18 U.S.C. §3142(c)(1)(B) and modify the terms of Arzberger's release.
Defense attorney Leonard Joy opposed, challenging the constitutionality of the amendments.
Joy had some case law to back up his arguments, as judges in three other federal jurisdictions had invalidated all or part of the mandatory conditions, including Western District of New York Magistrate Judge Leslie G. Foschio in United States v. Crowell, 2006 WL 3541736 (Dec. 7, 2006).
Regarding curfew with electronic monitoring, Francis said he agreed that it would "impinge on a constitutionally-protected liberty interest." He said that "the risk that a defendant will be erroneously deprived of the right to travel by the Adam Walsh Amendments is substantial."
He said a defendant must be allowed to present evidence at a bail hearing as to his "individual characteristics and the particular circumstances of the offense" and contest why such conditions are necessary to ensure his return to court and the safety of the community.
These procedural safeguards, he said, "would reduce the risk of erroneous deprivation at little cost."
Francis said that, until recently, he would not have considered it unreasonable that a defendant be required to surrender a firearm as a condition of pretrial release.
"This all changed," he said, with the recent U.S. Supreme Court decision in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), where the court changed the course of Second Amendment jurisprudence by creating what he said was a "protectible liberty interest" in the possession of firearms.
Thus, in the absence of an individualized determination at a bail hearing, requiring the defendant to give up any firearms violates due process, he said.
The same is true of the First Amendment associational rights, which Francis said "could not be more directly affected than they are by the Adam Walsh Amendments: a person accused of certain crimes is categorically prohibited from any contact with a class of individuals."
He went on to find that the amendments survive a challenge under the excessive bail clause of the Eighth Amendment.
But he also said that "conditioning pretrial release on the relinquishment of constitutionally protected rights in circumstances where the conditions are not necessary to satisfy legitimate governmental purposes" would constitute excessive bail.
So while the government has "articulated legitimate goals, including the protection of the public in general and of minors in particular," whether each condition is "necessary or excessive" cannot be determined without an assessment of Arzberger's individual characteristics, he said.
Finally, the judge rejected a challenge to the amendments made by Joy on separation-of-powers grounds. Joy had contended that Congress was encroaching on the powers of the judiciary by setting mandatory bail conditions.
Assistant U.S. Attorney Amie N. Ely represented the government.
