Commentary on the Second Circuit’s Approach to Restricting Internet Access by Sex Offenders on Supervised Release

A facet of modern life as integral as the telephone, the Internet also provides unique and anonymous avenues of opportunity for sex offenders. Not surprisingly, in sex offense cases, sentencing courts have used the supervised release statute to craft Internet-usage restrictions in an effort to prevent future wrongdoing by the offender upon release. Circuit courts, in turn, have adopted varyingly permissive and restrictive approaches when reviewing the validity of these restrictions. The Second Circuit has charted an intermediate course – set forth in United States v. Lifshitz, 369 F.3d 173 (2d Cir. 2004), and United States v. Balon, 384 F.3d 38 (2d Cir. 2004) – of embracing technological solutions, such as monitoring and filtering software, to strike a balance between access and control. The Second Circuit’s approach to the issue is the subject of an upcoming note in the William & Mary Law Review, “You Fall into Scylla in Seeking to Avoid Charybdis”: The Second Circuit’s Pragmatic Approach to Supervised Release of Sex Offenders. Analyzing the history and goals of the supervised release statute and reviewing the differing approaches of other circuits, the author concludes that the Second Circuit’s pragmatic approach most effectively advances the purposes of supervised release, namely, the rehabilitation of the offender and his transition back into the everyday life of the community. As the author notes, “the value of a release program as a rehabilitative tool mirrors the extent to which the conditions of supervised release simulate life after the end of the program.” Accordingly, the Second Circuit’s approach maximizes the offender’s capacity for rehabilitation, by allowing him to “take part in all activities that law-abiding citizens would use the Internet for, while having his access monitored or filtered to minimize the chances of recidivism.”

The note will be of specific interest to those with defendants in sex offense cases. But its analysis of the legislative history of supervised release is of wider interest, particularly to those with cases where judges may seek to fashion unusual liberty restrictions. To the extent these restrictions are unnecessarily punitive and impede the goal of the offender’s smooth re-entry to society, they may run afoul of the primary rehabilitative purpose of supervised release.