2016 VT 47
By Andrew Delaney
Probation conditions have to be reasonably related to the conviction. It wasn’t always like that from a practical perspective, but the SCOV has recently put its foot down.
Mr. Cornell is back on his conditions for another round. The first time, the trial court imposed a bunch of conditions but Mr. Cornell didn’t know what they were until he got a list post sentencing. There was an appeal and a remand. When Mr. Cornell objected to the conditions, the trial court said, more-or-less, you don’t get to object at this point. Another appeal and remand later, and Mr. Cornell ended up with another set of conditions. On this round, he appeals six probation conditions ordered by the sentencing court.
Mr. Cornell was convicted of lewd and lascivious behavior with a twelve-year-old boy in 2013. He was sentenced to some prison time and some probation time. After the procedural wrangling referred to above, the trial court eventually imposed twenty-one probation conditions, including, over defendant's objections, that: (1) he reside or work where his probation officer approves; (2) attend counseling programs ordered by his probation officer; (3) refrain from violent and threatening behavior; (4) avoid areas where children congregate; (5) his probation officer have warrantless search and seizure privileges; and (6) he is banned from home computer and internet usage.
After a third hearing, the trial court made oral findings in support of the probation order. Mr. Cornell appeals.
He argues that the reside-or-work-where-his-probation-officer-approves, attend-counseling-programs-ordered-by-his-probation-officer, refrain-from-violent-and-threatening-behavior, and avoid-areas-where-children-congregate conditions have already been knocked out by the SCOV. As to the warrantless-search-and-seizure and no-internet-or-home-computer conditions, Mr. Cornell contends they “impermissibly infringe on [his] liberty, privacy, and autonomy rights, as guaranteed by the United States and Vermont Constitutions, and were imposed without connection to his offense or rehabilitation.”
The SCOV notes that a sentencing court is authorized to impose conditions reasonable related to the offense and that are necessary to ensure that the offender will lead a law-abiding life. The conditions can’t be “unduly restrictive of the probationer’s liberty or autonomy.” The trial court has discretion, but when it’s exercised unreasonably, the SCOV will reverse.
Before getting into the specific challenges here, the SCOV notes: “At sentencing, the State repeatedly took the position that the probation conditions were necessary for all sex offenders and had been developed and drafted specifically for this purpose. The witness that the State provided, however, was a local probation officer who apparently had no part in formulating the conditions and was not an expert on the State's general-need proposition.” The SCOV says, and I’m paraphrasing, “Look. Conditions need to be related to the individual defendant. This ain’t a one-size-fits-all proposition.”
The SCOV hits the work-reside-per-P.O. condition first because that’s an easy one. The SCOV has already said that if the sentencing court is going to impose that condition, in the words of the rapper Juvenile, it has to “Back that thang up.”
The State argues that the court did make specific findings. The SCOV disagrees. There was testimony from the P.O. that the condition was important so that defendant wasn’t living near a school or a playground or working at a toy store or video store or things like that. The trial court essentially said that it was appropriate as long as the P.O. had a reasonable basis for the decision.
The SCOV says that’s not enough. There has to be some tailoring to the offense and the offender. It points to a case from last year where the SCOV said that kind of reasoning just doesn’t meet the specificity requirement—it doesn’t provide any direction to or restriction on the P.O.’s decision-making. This condition is based on a generalized concern, not anything specific to the defendant.
The SCOV points to a 2014 case with a reside-with-parents condition, and notes that the evidence and rationale in that case was much stronger than what the SCOV gets served here. Long story short—conditions have to be reasonably related to the offense and the offender.
The SCOV acknowledges the State’s the-trial-court-ain’t-got-no-crystal-ball argument, but notes that if there’s a specific (not general) concern about Mr. Cornell, the trial court can impose a narrower specific-to-the-offender condition. And so the SCOV strikes the condition and kicks it back to the trial court “for additional justification, revision, or removal.”
The counseling-per-P.O. condition is next. Mr. Cornell argues that under this case, that’s delegating impermissible “open-ended authority” to the P.O. and trial court can’t do that. The SCOV agrees.
The SCOV notes that the whole justification for the condition was that Mr. Cornell is a sex offender. Essentially, he’s done most of the treatment and he’s doing well, but the trial court imposed this condition for insurance if Mr. Cornell faltered (link is NSFW). That’s not enough for this condition in this case. So, the SCOV also kicks this one back to either: (1) “revise the language of condition 8 to constrain and guide a probation officer’s implementation of the condition or (2) strike it entirely.”
Next the SCOV turns to the violent-or-threatening-behavior condition. Mr. Cornell says that condition has been “repeatedly struck down.” He also claims it’s an “impermissible delegation of court authority to the probation officer.” Because Mr. Cornell’s P.O. has decided he can impose no-contact with certain adults pursuant to this condition, Mr. Cornell argues that it infringes “upon his substantive due process and First Amendment rights ‘relating to personal liberties, speech, and associations.’” The SCOV disagrees on this one.
See, the SCOV hasn’t actually struck the condition. What it has done is said that being mouthy and obnoxious doesn’t violate the condition because “violent or threatening behavior” isn’t enough notice of the prohibited conduct. Likewise, “mouthing off” to a girlfriend isn’t a violation because the condition doesn’t tell one that's a violation.
The SCOV can’t see the condition as per se unconstitutional. It doesn’t delegate authority to the P.O., and the court remains the final decider of what the condition means. Essentially—and this is important, kids—there’s no constitutional right to violent or threatening behavior. There goes my fun for the weekend.
I guess there was some kind of Facebook (have you “liked” us on Facebook?) interaction that prompted the P.O.’s don’t-talk-with-that-person warning. The SCOV points out that it was just a warning and the P.O. didn’t file a violation. In this context, the SCOV isn’t going to invalidate the condition.
But the SCOV does point out that the condition is pretty damned ambiguous and that violations based on it are going to be viewed with a healthy dose of skepticism.
The SCOV then turns to the final this-has-already-been-deemed-unlawful argument. Mr. Cornell argues that the avoid-areas-where-children-congregate condition is similar to the condition in this case that was struck down for vagueness. The SCOV disagrees, and points to a very-recent case in which it determined that “where children congregate” is sufficiently specific to give notice of where a defendant ain’t s’posed to be. This isn’t a proximity-equals-contact condition like in the case on which defendant relies, but a stay-away-from-these-places condition, which is permissible.
The SCOV also points out that this condition is tied to Mr. Cornell’s specific offense, and affirms the imposition of the avoid-areas-where-children-congregate condition.
The SCOV next considers those conditions that Mr. Cornell contends “infringe upon his liberty, privacy, and autonomy”—the warrantless-search-and-seizure and no-internet-or-home-computer conditions. One condition says that the P.O. can search and seize at will; the other prohibits Mr. Cornell from possessing a computer or accessing the internet.
The rationale for both conditions, Mr. Cornell argues, is a general idea that “those charged with defendant’s ‘type of offense’ often inappropriately use computers and other such devices even though defendant's offense did not involve the use of a computer.” The SCOV concludes that the condition is impermissible without any requirement of reasonable suspicion and kicks it back so the trial court may amend the condition accordingly.
Someone on probation has less protection against searches and seizures than other citizens. But there still has to be reasonable grounds for the search. There’s a lot of law and history in the opinion relative to probationers’ Fourth Amendment search-and-seizure rights, but that’s the grossly oversimplified bottom line—you still need reasonable grounds.
The SCOV touches on Article 11 as well, noting that the applicable precedents require “the State to demonstrate both a special need sufficient to justify an incursion on probationer’s rights and narrow tailoring.”
The probation condition at issue here, the SCOV opines, is an example of narrow tailoring. The searches contemplated are solely for contraband—“items defendant is prohibited from possessing under the conditions.” In that sense, it meets the requirements and is permissible.
But it’s not perfect. It still needs some tweaking in three respects: (1) stay tuned, the SCOV is about to knock out the no-internet-or-home-computer-condition; (2) the condition can’t be based on a waiver of rights, so it needs to be redrafted insofar as in its current version it implies a waiver; and (3) it needs to explicitly state “that the State’s search rights are dependent on its having reasonable suspicion that evidence of a violation of probation conditions would be found.”
Finally, the SCOV deals with the no-internet-or-home-computer condition. To the extent internet use is allowed, Mr. Cornell is supposed to have his use monitored by the P.O. and pay for the costs of monitoring, including sex-offender-monitoring software. He argues that this isn’t tied to him because his underlying offense had nothing to do with internet or computer use. Accordingly, it’s not a fine-tuned condition specific to him. The SCOV agrees and gives it the boot.
The SCOV notes that generally, in the federal courts, these sorts of restrictions and monitoring provisions are tied to whether the original offense was internet facilitated; there’s a history of internet crime; or there was something specific to the defendant that warrants the condition. When that stuff isn’t present, federal courts have struck the conditions.
The SCOV agrees with the federal courts’ reasoning. It points out that the trial court in this case “openly acknowledged the lack of fit between” the condition “and defendant's particular circumstances”
The SCOV doesn’t get rid of the condition entirely, however. It leaves intact the “requirement that defendant, upon reasonable suspicion, must allow his probation officer to monitor his computer and internet usage and pay any associated charges.” The SCOV also notes that the “State is free to seek modifications to this condition if they can demonstrate defendant has misused internet technology in any way.”
This opinion reinforces the idea that probation conditions have to have a reasonable nexus between the offender, the offense, and the condition. So keep an eye on those conditions criminal-law practitioners. The days of “Yeah, they always throw that in there, man—I really don’t know why” are past.