Sex Offenders; Conditions of Probation

Vermont v. Cornell, 2016 VT 47 (Vt. 2016)

Vermont Supreme Court rules that certain probation conditions placed by the trial court on a convicted sex offender improperly infringe on the offender’s liberty, privacy and autonomy rights.

Background: Owen Cornell was convicted of lewd and lascivious behavior with a 12- year-old boy in 2013. His prison sentence was suspended and multiple probation conditions were imposed. Cornell appealed the conditions, arguing that the “boilerplate” restrictions were invalid for a number of reasons (e.g., not sufficiently individualized, in violation of due process rights, impermissible delegation of authority to his probation officer). On remand, the trial court took consideration of additional information submitted by Cornell and testimony from his probation officer, then issued 21 new probation conditions. Cornell objected to six of the conditions, arguing that four of them had already been deemed unlawful in previous cases and two of them infringed on his liberty, privacy and autonomy rights under the U.S. and Vermont Constitutions.

Holding: The Vermont Supreme Court affirmed two conditions (prohibition on violent or threatening behavior; prohibition from places where children are known to congregate) and remanded as to four conditions. The Court found the delegation of authority to the probation officer to dictate treatment requirements to be overbroad. The Court found the condition of requiring probation officer approval for living and working location to be insufficiently specific to Cornell. The Court also agreed with Cornell that the condition requiring him to give search and seizure privileges to his probation officer was unconstitutional because it did not require reasonable suspicion for such searches. Finally, the Court found the condition imposing a blanket restriction on computer use to be overly restrictive, given that Cornell did not utilize any such technology in his offense. Concerning the computer restriction condition, the Court summarized, “We do not see a sufficient justification for such a sweeping restriction, which would render nearly all the activities of life incalculably difficult in the modern age, when such a condition would not have prevented the crime of which [a defendant] was convicted” (internal quotations removed, quoting U.S. v. Barsumyan, 517 F.3d 1154 (9th Cir. 2008)).

Notable Points:

Insufficiency of proof for “boilerplate” conditions: Prior to considering the specific challenges, the Court engaged in a brief excursus to note that the State’s “proof” concerning the appropriateness of probation conditions was insufficient, in that it merely rested upon the testimony of the probation officer that Cornell was a sex offender.

Balancing Fourth Amendment rights in sex offender cases: In the latter portion of the opinion the Court addressed the conditions that Cornell had argued infringed his liberty, privacy and autonomy rights. The Court discussed the balance of interests, including somewhat lessened rights of the probationer, but the overall need to narrowly tailor such conditions in order to avoid infringing liberty and privacy interests. The Vermont Supreme Court noted that some states (e.g., California, Indiana) have allowed suspicionless searches of probationers (and parolees), but that Vermont would continue to require reasonable suspicion for such searches.

Found in DMHL Volume 35, Issue 2