Friday Roundup
The Internet and sex offenders. Last week, I did a summary of Packingham v. North Carolina, in which the Supreme Court struck down a North Carolina law prohibiting sex offenders from going on social media sites, such as Facebook. Ohio doesn't have such a law, but limitations on an offender's use of computers as a condition of probation are routine in sex cases.
Typical is the 11th District's decision a few years ago in State v. Robbs. Robbs had fooled around with his 18-year-old stepdaughter, and wound up pleading to gross sexual imposition. The judge put him on community control sanctions, with the condition that his computer and Internet usage be monitored by the probation department. The court found no problem with this.
The court addressed only the issue of whether the probation condition was reasonably related to the crime. There might have been a First Amendment issue; Robbs argued that the order "forbade him from using social media," but that provision wasn't included in the journal entry, so the court ignored it.
But what if it had been? A probation condition prohibiting a defendant from using social media doesn't seem any different from a law prohibiting it, and Packingham would seem to preclude that, too.
Maybe not, though. The court in Robbs points to State v. Eal, a 2012 10th District decision which upheld a probation condition which provided that any computer usage had to be supervised by the probation department. In that case, though, Eal had downloaded child porn from the Internet. And since "supervision" doesn't broadly prohibit him from going on certain sites, as did the law in Packingham, it seems "narrowly tailored" to the actual offense sufficient to pass constitutional muster.
But lawyers handling sex offense cases should be aware of how restrictions on computer usage in probation conditions might be affected by Packingham. One of the problems in Robbs is that he didn't object to the conditions at the time the trial court imposed them, so the panel reviewed it only for plain error. And you know how that goes.
End of Session? Our Maximum Leader and his Attorney General, Jeff Sessions, are on the outs. It's because of Sessions' recusal from the investigation into Russia's meddling in the 2016 election, but it might be a good thing for other reasons.
Conservatives are generally pro-law enforcement, but one thing that gets their ire up is civil forfeiture law. The well-chronicled abuses of the procedure, which allow police to seize property and keep it without ever charging, let alone convicting, its owner of a crime, have led everyone from Clarence Thomas to the Cato Institute to condemn the procedure. Small wonder; police seized more money from American citizens in 2015 than burglars did.
In response, many states have passed laws limiting forfeiture. Ohio is one of them: to confiscate property, the prosecution either needs to include a forfeiture specification in the indictment, and must prove it beyond a reasonable doubt, or file a civil action, which provide a number of defenses for the property's owner. That's a far cry from Federal law, which basically requires the owner to hire a lawyer and file his own lawsuit, where he must prove by a preponderance that the items seized were not fruits, instrumentalities of crime, or contraband.
But years ago the Department of Justice set up a program called "equitable sharing," which allowed state and local police to get around the state law by turning over their seizures to the Feds. The locals would get 80% of it back, and the owner would have to resort to Federal law to get it returned. Eric Holder, Obama's AG, substantially curtailed that program 2015, announcing that the DOJ would no longer accept turnovers from local police without a warrant or a criminal conviction.
Sessions reversed that on Monday.
But at least on this, Trump and Sessions are on the same page. At a meeting with county sheriffs at the White House in February, Trump was told that a particular Texas state senator was proposing legislation which would prohibit forfeitures unless there was a criminal conviction. Expressing disbelief at this, Trump asked, "Who is the state senator? Do you want to give his name? We'll destroy his career."
Personal ruminations. Two expressions which have long passed their sell-by date are "it is what it is" and "at the end of the day." Last week, I actually heard somebody say, "At the end of the day, it is what it is," and had to struggle mightily to refrain from beating him with a tire iron.
Perhaps the most maddening aspect of the latter phrase is that it usually concludes with an utterly banal observation: "At the end of the day, it's about community and family." What's it about at breakfast? Hookers and crack?
Coming attractions. Next week, I'll have a look at some appellate decisions that have come down in the past month or so. Haven't done that for a while. I'll also have the weekly summary of 8th District decisions, and my annual recap of criminal cases from this past term of the US Supreme Court, and maybe another Roundup in which I'll share with you a personal observation which will change your life. See you then.
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