Judge Sumners continued in relevant part: Given our conclusion the CSL social media ban is facially unconstitutional, we are not required to address R.K.’s contention that the ban is unconstitutional as applied to him. Nevertheless, it is important to stress that based upon our rulings in J.I., and K.G., we conclude the social media ban is unconstitutional as applied to R.K.’s sentences.
Both J.I. and K.G. held Internet bans are appropriate parole restrictions on sex offenders where they are specifically tailored to address the goal of protecting society, reducing recidivism, and rehabilitating defendant parolees. Neither decision, however, addressed whether the statute or regulations upon which the bans were imposed were facially constitutional.
In J.I., the District Parole Supervisor imposed a complete ban on Internet access except for employment purposes on the parolee, a sex offender who sexually molested his three daughters between the ages of six to fourteen, because he previously violated his CSL by accessing pornography sites and possessing pornography. 288 N.J. at 210. The complete ban was imposed in accordance with N.J.S.A. 30:4-123.59(b)(2). The parolee subsequently violated the conditions when accessing the Internet to view the websites of his church and state-appointed therapist. Id. at 211. The Court did not have the benefit of the United States Supreme Court’s ruling in Packingham, which was pending at the time J.I. was issued.
Realizing the Internet was a “basic need and one of the most meaningful ways to participate in the essentials of everyday life,” the J.I. Court determined the complete Internet ban was not “reasonably tailored to advance the goals of rehabilitation or public safety.” Id. at 220, 229. The Court further held: “Internet conditions should be tailored to the individual CSL offender, taking into account such factors as the underlying offense and any prior criminal history, whether the Internet was used as a tool to perpetrate the offense, the rehabilitative needs of the offender, and the imperative of public safety.” Id. at 224. The Court reasoned the preferred way to satisfy those goals were by deploying unannounced inspections, device examinations, and monitoring software. Id. at 230.
A counter-argument to the efficacy of monitoring software is that a tech-savvy offender can likely stay one step ahead of the software. On the other hand, the Government’s substantial resource advantages should mean that very few offenders would be able to outsmart their supervisors.