By Christopher Zoukis
West Virginia’s Supreme Court of Appeals has ruled it violates the First Amendment for the state’s parole board to condition an inmate’s parole on his having no access to the Internet.
After a 1987 break-in in which he assaulted a woman in her apartment and took money from her purse, Bobby Ross was convicted of sexual assault, burglary and attempted aggravated robbery, drawing sentences totaling 26 years. When he was offered parole in May 2014, one condition was avoiding all Internet contact, including living in a residence with Internet access.
After parole, Ross moved in with this girlfriend, who owned a laptop and had Internet access. When his parole officer learned that, Ross’s parole was revoked, sending him back to prison. Ross appealed, and a lower court sided with him. That set up the state’s appeal to the state Supreme Court of Appeals.
Its March 12 decision, Mutter v. Ross, also went against the parole board (Mutter was the warden of the state prison to which the state parole board had returned Ross.) The justice writing the decision noted several flaws in the state’s case: it had no evidence Ross had ever used the computer or even knew the passwords for the computer or its online access.
More fundamentally, however, the top state court noted the U.S. Supreme Court decision in the 2017 case of Packingham v. North Carolina, which unanimously invalidated a state law making it a felony for a registered sex offender to access any “commercial networking” website to which the offender knows minor children are allowed access.
The Court ruled the statute was too broad – in fact, it was an “unprecedented” restriction on speech. Under a long line of its First Amendment cases, the nation’s top court held, a state may not restrict legitimate speech as part of an effort to forbid unprotected speech.
Under that reasoning, the West Virginia parole board restriction – which dealt not just with using social media but covered all Internet use, or even living in a residence capable of accessing the Internet – could not survive. To be permissible, a speech restriction would have to be the least restrictive way to accomplish a legitimate state purpose related to the nature of the offender’s crime.
The West Virginia high court noted the parole condition imposed on Ross went even further than the restriction struck down in the North Carolina law, since it would bar Ross even from such mundane activities as visiting a website of any type, getting an email from an employer or health provider, making payments online, checking online weather reports, or owning a smartphone.
While Internet use can sometimes be restricted as a condition of parole, the state appellate court added, that was true only when Internet use had been an integral part of the parolee’s conviction, or where the defendant had a history of using the Internet to commit further crimes; neither of those applied to Ross.
The parole board also sought to send Ross back to prison for his three admitted instances of smoking marijuana after being released, but the state’s high court found that not only excessive, but actually forbidden by state law, which barred parole revocation for certain lesser violations, including mere possession of a controlled substance.
Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, (Middle Street Publishing, 2017), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014). He regularly contributes to New York Daily News, Prison Legal News and Criminal Legal News. He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonerResource.com.