Supreme Court Examines Probation Conditions for Sex Offenders

In State v. Owen Cornell, 2016 VT 47 (April 22, 2016), the Vermont Supreme Court remanded several probation conditions to the sentencing court for justification, amendment, or deletion, and affirmed two probation conditions imposed on Cornell, a convicted sex offender.

Issue: After being convicted of lewd and lascivious behavior with a 12 year old boy, Cornell was sentenced to 2-6 years in prison, with all suspended except for 20 months with credit for time served. The court also imposed probation conditions, including that he live or work where his probation officer approves, attend counseling programs ordered by his probation officer, refrain from violent and threatening behavior, avoid areas where children congregate, warrantless search and seizure privileges for his probation officer, and a ban on home computer and internet usage. Cornell argued that the first four conditions had already been found unlawful by the Supreme Court and should be struck down, and that the last two conditions were unduly restrictive on his liberty, autonomy, and privacy rights.

Holding: The Court agreed with Cornell on the conditions limiting place of residence, place of employment, counseling, search and seizure, and home computer and internet use conditions, but affirmed the conditions that prohibit violent/threatening behavior and restricting access to places where children congregate. The Court found that the residence and employment condition was not narrowly tailored to the defendant’s history and offense, especially since there was a lack of evidence and findings. Accordingly, the Court remanded for the sentencing court to amend the condition to be more tailored to Cornell’s specific situation. The Court remanded the counseling condition for similar reasons, finding that the wording was too broad and needed to be amended to direct the probation officer’s implementation of a counseling program. The home computer and internet use restrictions were also remanded for over-breadth, as Cornell’s offense did not involve a computer or the internet. The Court affirmed the violent/threatening behavior condition based on Vermont precedent, finding that there is no illegal infringement on due process or First Amendment rights. However, the Court asked trial judges to clarify the condition, given potential difficulties in interpretation. The Court affirmed the restriction on access to places where children congregate, finding that the condition was not unconstitutionally vague, given that there was a connection between the condition and defendant’s crime. Finally, the Court found that the search and seizure condition was impermissible because there was no reasonable suspicion requirement, and remanded to allow the sentencing court to add such a requirement.