X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Requiring sex offenders to submit to random lie-detector tests during the probationary period after release from prison is not unconstitutional, but forbidding them from owning a computer may be going too far, a federal appeals court has ruled. In a pair of opinions handed down this week, the 3rd U.S. Circuit Court of Appeals ruled that a man convicted of possessing child pornography should not have been barred from owning a computer, but upheld another judge’s decision to impose random polygraph testing of a man who confessed to both child pornography and molestation charges. In United States v. Lee, the court found that mandatory polygraph testing of a probationer is allowable since the defendant may still invoke the Fifth Amendment right not to answer a question that could be incriminating. Writing for a unanimous three-judge panel, visiting Judge Robert J. Ward of the Southern District of New York found that requiring a probationer to submit to random polygraph tests “is reasonably related to the protection of the public, as well as the rehabilitation of the [defendant].” Ward, who was joined by 3rd Circuit Judges Jane R. Roth and Morton I. Greenberg, found that such polygraph testing “could be beneficial in enhancing the supervision and treatment” that Albert M. Lee will undergo during the three years of supervised release after he serves his 57-month prison term. But in U.S. v. Freeman, a different three-judge panel found that Senior U.S. District Judge Charles R. Weiner of the Eastern District of Pennsylvania erred when he forbade Robb Walker Freeman from possessing any computer in his home or using any online computer service without the written approval of the probation officer. Assistant Federal Defender Jonathan D. Libby argued that the sentence was unduly burdensome for Freeman because he has been self-employed most of his life installing computer systems for businesses and would be unable to work. Judge Jane Roth agreed. In an opinion joined by 3rd Circuit Judges Dolores K. Sloviter and Theodore A. McKee, Roth found that Weiner’s order was “overly broad” because it “involves a greater deprivation of liberty than is reasonably necessary to deter future criminal conduct and to protect the public.” Roth cited the 2nd Circuit’s recent decision in U.S. v. Sofsky that vacated a condition that would require a probation officer to approve all computer and Internet access by a defendant who pleaded guilty to receiving child pornography over the Internet. As the Sofsky court observed, Roth said, “a total ban on Internet access prevents use of email, an increasingly widely used form of communication, and other common-place computer uses such as getting a weather forecast or reading a newspaper online.” Roth found there was “no need to cut off Freeman’s access to email or benign Internet usage when a more focused restriction, limited to pornography sites and images, can be enforced by unannounced inspections of material stored on Freeman’s hard drive or removable disks.” Weiner sentenced Freeman in May 2000 for possessing more than 1,000 pictures of boys, many under 5 years old, engaged in sexually explicit conduct. Roth found that although the 3rd Circuit has previously allowed a condition restricting all Internet access in the 1999 decision in United States v. Crandon, the defendant in that case had used the Internet to contact young children and solicit inappropriate sexual contact with them. “Such use of the Internet is harmful to the victims contacted and more difficult to trace than simply using the internet to view pornographic web sites,” Roth wrote. By contrast, Roth said, there was no evidence that Freeman has used the Internet to contact young children. “We are not in any way limiting our ability to so restrict the use of computers when a defendant has a past history of using the Internet to contact children,” Roth wrote. Roth found that Weiner could alter the conditions if more lenient restrictions don’t prove effective. “If Freeman does not abide by more limited conditions of release permitting benign Internet use, it might be appropriate to ban all use. Under the record before us, however, it is not reasonably necessary to restrict all of Freeman’s access to the Internet when a more limited restriction will do,” Roth wrote. POLYGRAPH TESTING Albert Lee was arrested in February 2000 for knowingly transporting child pornography by computer. He was later indicted on additional charges that included enticing a minor by computer to engage in sex. In his guilty plea, Lee confessed that he met female minors via an Internet chat channel titled “GirlsandOlderGuys.” Through online conversations, he met a 15-year old girl, and later met her in person and engaged in sexual acts with her. He also confessed that he had attempted to meet other minors online in order to induce them to perform sexual acts with him, and that he had transmitted child pornography online. Prior to sentencing, Lee was sent to the Federal Correctional Institution in Petersburg, Va., for a psychological evaluation. In a report, the psychiatrists recommended that Lee “should be required to register as a sex offender, not be allowed contact with his victims, have no contact with persons under the age of 18, not own or operate a personal computer or other devices that allows Internet access, and should not be housed in an area where minors congregate.” The report also recommended that Lee not be allowed to hire any minors to perform household chores or yard work, and that random searches of his residence be conducted for the presence of sexual risk factors. But it was the final recommendation that Lee challenged on appeal — that he be required to submit to “frequent polygraph examinations.” Assistant Federal Defender Christopher S. Koyste argued that the polygraph condition violates Lee’s Fifth Amendment rights because the examiner could ask him about prior uncharged offenses or other potentially incriminating conduct. Koyste said mandatory polygraph examination could put Lee in a situation in which he would be compelled to incriminate himself by providing the government with information that could be used against him. But Assistant U.S. Attorney Leonard P. Stark argued that the Fifth Amendment provides no protection against answering questions when the answers pose no realistic threat of future criminal prosecution, even if the answers could serve as the basis for a revocation of supervised release for an offense on which appellant has already been convicted. Judge Ward found that the U.S. Supreme Court has held that defendants have a Fifth Amendment right when being questioned by probation officers, but that they must invoke it. Koyste argued that polygraph testing substantially increases the coercive nature of the probation proceeding because the defendant is physically restrained by being attached to a polygraph machine, and a former police officer would be administering the test. As a result, he said, Lee would be forced to choose between making incriminating statements and jeopardizing his liberty by refusing to answer questions. Ward disagreed, saying Lee still has the right to remain silent. “Should Lee choose to terminate the interview and exit the room while being questioned, he may do so by having the machine detached from him in a matter of moments. If [he] feels obligated or compelled to stay through the end of the proceeding, we are not persuaded that this differs in any significant way from an ordinary probation interview at which the probationer may feel that same obligation,” Ward wrote. But Ward cautioned that Lee’s silence should not be used against him — even if his physiological reaction is detected by the machine. “Even though Lee may verbally assert his Fifth Amendment privilege, the polygraph machine may indicate that he is not being truthful based on his physiological response. We note that if [he] invokes his Fifth Amendment privilege, and his involuntary physiological reaction is recorded by the polygraph sensors, the polygraph recording should not be used to justify any action by the probation department different than what normally would follow from the invocation of the Fifth Amendment in the context of a probation interview,” Ward wrote.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.