811 S.E.2d 866
W. Va.2018Background
- Bobby Ross, a registered sex offender released on parole in May 2014 for 1987 convictions (sexual assault, burglary, attempted aggravated robbery), was subject to a special parole condition forbidding possession or contact with any computer or device enabled with internet access.
- Ross lived with his girlfriend, who owned a password-protected internet-enabled computer; Ross did not know the passwords and there was no evidence he used the computer or had an internet account.
- The Parole Board charged Ross with (1) possessing/contact with an internet-capable computer, (2) failing to report an internet account, and (3) three instances of marijuana use; Ross admitted the marijuana use but denied the other charges.
- The Board revoked Ross’s parole and reinstated his sentence; Ross filed habeas relief in circuit court, which vacated the revocation on three grounds: the internet ban was unconstitutional, no evidence he had an internet account, and revocation for simple possession of marijuana violated statutory parole-limitation provisions.
- The State appealed; the Supreme Court of Appeals of West Virginia affirmed the circuit court: the internet ban violated the First Amendment under Packingham, there was no evidence Ross failed to report an internet account, and statutory law limited punishments for simple possession so revocation without written findings was improper.
Issues
| Issue | Plaintiff's Argument (Ross) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Validity of total internet/computer ban as parole condition | Ban is an overbroad First Amendment restriction under Packingham; parolees retain constitutional rights | Parole status allows broader restrictions; supervisory-release cases (e.g., Rock) permit internet bans in some contexts | Ban is unconstitutional when overbroad; internet restrictions must be narrowly tailored and cannot bar substantially more speech than necessary |
| Whether evidence supported finding Ross possessed/contacted a computer or had an internet account | No evidence he used or had an account; didn't know passwords; Board produced no forensic proof | Living in a residence with an internet-enabled computer suffices to support violation | Board’s findings on possession/contact and failure-to-report lacked evidentiary support and were arbitrary and capricious |
| Whether Board could revoke parole for simple possession of marijuana | Statute exempts simple possession from grounds permitting revocation and prescribes limited confinement terms; Board made no written findings to depart | Ross used marijuana three times; revocation within Board discretion | West Virginia Code bars revocation for simple possession absent specific written findings; revocation was contrary to statute |
| Scope of Packingham for parole/supervised-release conditions | Packingham’s rule protecting internet access applies to parolees; restrictions must be narrowly tailored | Some circuits upheld broad bans where internet was integral to offense or defendant had internet-based criminal history | Packingham applies; broad bans invalid unless tied to offense or history and narrowly tailored; monitoring or narrower limits may be permissible |
Key Cases Cited
- Packingham v. North Carolina, 137 S. Ct. 1730 (2017) (Supreme Court holding broad ban on social-media access by registered sex offenders violates First Amendment)
- McCullen v. Coakley, 134 S. Ct. 2518 (2014) (narrow tailoring requirement for content-neutral restrictions)
- United States v. Rock, 863 F.3d 827 (D.C. Cir. 2017) (upholding internet restriction in supervised release where offense involved internet; distinguished on facts)
- State v. Hargus, 232 W. Va. 735 (2013) (upholding computer restriction where offense involved internet and defendant had history of downloading child pornography; preserved as valid in limited circumstances)