It’s not uncommon to see appeals in child pornography cases that focus only on the conditions of supervised release handed down by the district court. Courts vary, but many are willing to hand down onerous conditions of release. This means that when offenders leave prison, they’re still subject to big restrictions on their freedom. In
U.S. v. Shultz, Robert Thomas Shultz challenged two conditions of supervised release: an order that he have no contact with anyone under the age of 18, including his own minor children, and an order that he not possess any “sexually arousing material.” These conditions were to apply for an entire lifetime of supervised release. The Sixth U.S. Circuit Court of Appeals ultimately upheld both conditions.
Shultz was convicted in 2010 of receiving and possessing child pornography. This is not the first trip to the Sixth Circuit for Shultz, who had previously appealed his sentence, saying it was inappropriately lengthened by the district court to promote rehabilitation. The Sixth Circuit agreed with that argument and sent the case back for resentencing. The second sentence was 168 months rather than 171 months, but again included lifetime supervised release with special conditions. In relevant part, the conditions included Condition Four, which says Shultz shall not associate or be alone with any children under 18, and Condition Six, which prohibits him from possessing material “that he may use for the purpose of deviant sexual arousal.” He again appealed, this time challenging the two conditions.
The Sixth Circuit first rejected Shultz’s challenge to Condition Four. On the challenge involving the sentencing statute, the Sixth deferred to the trial court’s better understanding of the case and Congressional intent, saying the condition reasonably responds to concerns that Shultz might sexually assault a child. It noted that he has been charged with domestic abuse of his wife. The Constitutional non-delegation issue was waived, the court said, and a prohibition on physically associating with minors is constitutional because it’s directly related to rehabilitation and protection of the public. Finally, the right to associate with his own children is not affected, the Sixth said, because Shultz’s children will be adults by the time he leaves prison, and he may seek permission from the probation officer to associate with hypothetical grandchildren.
Challenges to Condition Six on similar grounds were also rejected. The Sixth said there is no First Amendment problem with restricting pornography if the condition is narrowly read. And while it agreed that the word “deviant” is vague, it said the problem is solved if it’s read in context to mean child pornography. It thus affirmed the district court’s conditions.
The Sixth Circuit wrote thoughtfully in this opinion about the difficulties of sentencing sex crimes, but I was disappointed by the solutions. The way the Sixth Circuit construes the restrictions at issue right now is not necessarily the way a probation officer or a future trial court may read them. As a result, this second trip to the appeals court does not necessarily solve problems with vagueness or conflicts with Shultz’s First Amendment rights. I would have preferred a ruling that created some bright-line rules establishing, for example, that defendants like Shultz have a right to legal pornography and access to their own families (unless there’s evidence they pose a threat). Without such rules, we’re likely to continue seeing challenges to these kinds of supervised release conditions.
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