Schmult v. Board of Parole

350

Argued and submitted May 4, reversed and remanded September 2, 2020

BEN ROBERT SCHMULT,

Petitioner,

v.

BOARD OF PAROLE AND

POST-PRISON SUPERVISION,

Respondent.

Board of Parole and Post-Prison Supervision

A168320

474 P3d 920

Petitioner seeks review of an order of the Board of Parole and Post-Prison

Supervision, in which the board set the supervision conditions for petitioner’s

post-prison supervision. Petitioner challenges a single special condition, which

essentially bars him from using any computer for any reason without prior

approval, asserting that the condition exceeds the board’s statutory authority.

Under ORS 144.102(4)(a), the board has authority to impose a special condition

of post-prison supervision that it “considers necessary because of the individual

circumstances of the person on post-prison supervision.” Petitioner argues that

the computer condition is too broad to be “necessary,” while the board argues

that restricting petitioner’s access to computers is necessary to promote public

safety and to assist in petitioner’s rehabilitation, given his individual circum-

stances. The board also contends that the condition should be understood to refer

only to the types of devices that have the capability for petitioner to engage in

the improper acts reflected in his history, not to all computers. Held: The board

exceeded its authority under ORS 144.102(4)(a). Given the ubiquity of computers

in modern life, an outright ban on access to all computers of every kind for every

purpose without limitation, absent prior approval, is too restrictive to reflect a

weighing of the interests of the parties. On remand, the board will have discre-

tion to craft a more limited condition, which need not be so narrowly tailored as to

address only certain or immediate risks to public safety or offender reformation,

but which should be targeted to addressing substantial dangers in those regards.

Reversed and remanded.

Sarah De La Cruz, Deputy Public Defender, argued the

cause for petitioner. Also on the briefs was Ernest G. Lannet,

Chief Defender, Criminal Appellate Section, Office of Public

Defense Services.

Christopher Page, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Cite as 306 Or App 350 (2020) 351

Before Armstrong, Presiding Judge, and Tookey, Judge,

and Aoyagi, Judge.

AOYAGI, J.

Reversed and remanded.

352 Schmult v. Board of Parole

AOYAGI, J.

On judicial review of a final order of the Board of

Parole and Post-Prison Supervision, petitioner challenges a

special condition of post-prison supervision that essentially

bars him from using any computer for any reason without

prior approval. We agree with petitioner that, in this case,

as written, that condition exceeds the board’s authority.

Accordingly, we reverse and remand.

Petitioner sexually abused his teenaged daughter

in 2012. He was convicted of first-degree sexual abuse and

sentenced to prison and post-prison supervision. Upon his

release from prison, the board entered an order of super-

vision conditions for petitioner’s post-prison supervision.

Petitioner will be subject to those conditions for nearly four

years, from April 2018 (when petitioner was released from

prison) until January 2022 (when his post-prison supervi-

sion ends).

The board’s order contains numerous special con-

ditions. One is the challenged condition, which essentially

bars petitioner from using any computer for any reason

without prior approval:

“No access to a computer, the Internet, digital storage

devices or other computer-related devices and peripheral

computer equipment without the prior written approval

of the supervising officer and, where applicable, the sex-

offender treatment provider, and only under conditions set

by them.”

Because it takes a computer to use the internet, a digital

storage device, or peripheral computer equipment, we gener-

ally refer to this provision as a “computer” ban.

Another condition allows petitioner’s supervising

officer to conduct random or unannounced examinations

of any computers or other electronic devices to which peti-

tioner has access and to install on them software capable of

determining whether sexually explicit materials have been

accessed, exchanged, or stored. Additionally, petitioner is

subject to over a dozen conditions identified as “sex offender

package A,” which, for example, prohibit petitioner from

any contact with anyone under 18 years old without prior

Cite as 306 Or App 350 (2020) 353

approval and prohibit petitioner from owning or possessing

pornography.

Of the many supervision conditions that apply to

him, petitioner challenges only the computer ban. He con-

tends that it exceeds the board’s authority under ORS

144.102(4)(a) and that it is unconstitutionally vague and

overbroad in violation of the state and federal constitutions.

We address the statutory challenge first and, because it is

dispositive, do not reach the constitutional issues. See Stelts

v. State of Oregon, 299 Or 252, 257, 701 P2d 1047 (1985)

(generally providing for consideration of state statutory

arguments, state constitutional arguments, and federal con-

stitutional arguments, in that order).

Under ORS 144.102(4)(a), the board has author-

ity to impose a special condition of post-prison supervision

that it “considers necessary because of the individual cir-

cumstances of the person on post-prison supervision.” That

grant of discretion to the board “has meaning only in the

context of the statutory objectives that the [b]oard is to pur-

sue.” Martin v. Board of Parole, 327 Or 147, 159, 957 P2d

1210 (1998) (internal quotation marks omitted). That is, “the

‘necessity’ of special conditions must be determined in refer-

ence to the statutory objectives that are repeated throughout

the statutes, namely, the protection of public safety and the

reformation of the offender.” Id. (internal quotation marks

and ellipses omitted).

As recently clarified by the Supreme Court, ORS

144.102(4)(a) allows the board to “impose any condition that,

in light of the supervised person’s individual circumstances,

the board reasonably could view as essential to or required

for one or both of its broad objectives of ‘promoting’ public

safety and ‘assisting’ in an offender’s reformation.” Penn v.

Board of Parole, 365 Or 607, 635, 451 P3d 589 (2019) (quot-

ing statute). In formulating special conditions, the board is

not required to tailor them so narrowly as to address “only

certain or immediate risks to public safety or offender ref-

ormation”; rather, the board has authority to “impose spe-

cial conditions to address any substantial danger in those

regards.” Weems/Roberts v. Board of Parole, 347 Or 586, 598,

227 P3d 671 (2010) (emphasis added). Ultimately, the board

354 Schmult v. Board of Parole

must weigh the different interests of the parties—i.e., such

as weighing the benefit of a particular condition to the pub-

lic safety and the offender’s reformation against the burden

that it would impose on the offender—and impose conditions

that fall within the range of legally permissible outcomes.

Penn, 365 Or at 635; Martin, 327 Or at 159-60.

More restrictive supervision conditions generally

require greater justification. For example, in Martin, the

court upheld a “stringent condition” denying the petitioner

the right to enter most of Lane County, where his victim

lived, because there was evidence that it “would be a psy-

chological disaster” for the victim to encounter him unex-

pectedly. Id. at 159-60 & n 5. In that case, the petitioner

had “purchased” the victim when she was four years old and

physically, sexually, and psychologically abused her for the

rest of her childhood. Id. at 149. The court noted that the

“fact that a victim exists” and a generalized “need to pro-

tect the victim” would not justify such a stringent condition.

Id. at 160 n 5. However, the facts of the particular case did

justify it. Id. at 159-60. The board “weighed the different

interests of the parties,” crafted a condition to avoid “a sub-

stantial danger that the two would meet,” and arrived at a

condition well within the permissible range of choices. Id.

In this case, petitioner argues that the condition

barring him from using any computer for any reason with-

out prior approval is too restrictive to be “necessary” and

thus falls outside the board’s authority. He points out that

the condition applies not only to a personal computer but to

an almost endless array of modern electronic devices that

contain computers, such as cellular phones, smartphones,

smartwatches, fitness trackers, credit card machines (like

those used in grocery and retail stores), automated teller

machines (ATMs), ticket kiosks for public transit, and so

on. As for the internet, petitioner notes that the condition

applies not only to using social media and viewing online

pornography—aspects of the internet that he has misused

in the past—but also to online job searches and applica-

tions, online banking, online health records, online library

catalogs, online legal research, checking the weather, and

so on. Petitioner argues that, even if some restraint on his

computer and internet access is necessary to promote public

Cite as 306 Or App 350 (2020) 355

safety and assist in reforming him, the far-reaching condi-

tion imposed by the board is not reasonably related to those

statutory objectives.1

In response, the board first argues that petitioner

failed to exhaust his administrative remedies, because, in

the board proceeding, he focused on constitutional issues

and did not clearly delineate a statutory argument. Having

reviewed the record, we reject that argument under the

applicable standard. See Tuckenberry v. Board of Parole,

365 Or 640, 655, 451 P3d 227 (2019) (taking a prudential

approach to issue exhaustion in board proceedings to impose

special conditions of post-prison supervision). Turning to

the merits, the board argues that, given petitioner’s history,

it is necessary to regulate his computer and internet use to

ensure that he is not using a computer or electronic device

to harm others. The board describes the challenged condi-

tion as a “logical way to ensure public safety” and further

argues that petitioner having “unregulated access to elec-

tronic devices” would increase his recidivism risk. As for the

scope of the condition, the board asserts that a person of

ordinary intelligence would understand that it extends only

to “devices that have the capability for petitioner to engage

in the improper acts reflected in his history,” i.e., devices

that can be used to store or display pornography, to spy on

teenaged girls, or to communicate with teenaged girls.

We begin with whether it is within the board’s dis-

cretion to impose some restrictions on petitioner’s computer

1

In his request for administrative review, filed a month after his release

from prison, petitioner asserted that the computer ban was stopping him from

accessing support networks (family, friends, religious, and legal), preventing him

from working in a technical field, interfering with access to housing, education,

and medical specialists, affecting his social security payments and benefits,

limiting his access to administrative and health records, limiting his access to

transportation, limiting his access to banking, limiting his ability to sell his art,

and preventing him from watching television and listening to music. Petitioner

noted that his entire adult life “has centered around electrical systems, mechani-

cal systems, all of which are controlled by computers and digitally stored records,

information, and controls.” Petitioner also noted that he used computers and dig-

ital storage devices daily while incarcerated, including participating in classes

and counseling by computer, and that he has over 3,000 pages of legal materials

on a digital device that he needs to access. Petitioner stated that he did not object

to some restrictions—such as having an “internet nanny,” providing all of his

passwords, and not being allowed to enter certain websites—but objected to the

condition as written.

356 Schmult v. Board of Parole

and internet use. We readily conclude that it is and reject

any contrary argument by petitioner. Whether a special

condition is “necessary” depends on “the individual cir-

cumstances of the person on post-prison supervision.” ORS

144.102(4)(a). In determining whether a condition is neces-

sary, the board “can and must consider advancing one or

both of the dual goals of public safety and offender reforma-

tion in the light of the supervised person’s specific circum-

stances, including the supervised person’s current and prior

convictions, history and background, record of conduct, and

the risk of future harm that that conduct suggests.” Penn,

365 Or at 635.

Here, the board found (and there is evidence to sup-

port) that petitioner showed pornography to his teenaged

daughter to try to normalize his sexual abuse of her, that

petitioner’s former partner found child pornography on peti-

tioner’s computer in the past, and that petitioner has used

Facebook to spy on at least one teenaged girl. Given those

findings, the board did not abuse its discretion in deter-

mining that it is essential to promoting public safety and

assisting in petitioner’s reformation that some restrictions

be placed on petitioner’s computer and internet use while

he is on post-prison supervision. And, indeed, regardless of

the outcome of this judicial review proceeding, petitioner’s

computer and internet use will be restricted. Apart from the

challenged condition, petitioner is already subject to other

conditions that he does not contest, including that any com-

puters or electronic devices to which he has access are sub-

ject to random or unannounced examinations as well as to

the installation of software capable of determining whether

sexually explicit materials have been accessed, exchanged,

or stored. Petitioner is also prohibited from contacting any-

one under 18 years old without prior approval, including on

a computer, and from possessing pornography, including on

a computer. The only question is whether the additional con-

dition barring petitioner from accessing any computer for

any purpose without prior approval goes too far.

On that issue, we agree with petitioner. A computer

is “a calculator [especially] designed for the solution of com-

plex mathematical problems; [specifically] : a programmable

electronic device that can store, retrieve, and process data.”

Cite as 306 Or App 350 (2020) 357

Webster’s Third New Int’l Dictionary 468 (unabridged ed

2002); see also id. at 618 (defining “device” to mean “some-

thing that is formed or formulated by design”). The board’s

preferred definition of computer—from the statutory defi-

nitions applicable to computer crimes—is equally broad:

“ ‘Computer’ means, but is not limited to, an electronic,

magnetic, optical electrochemical or other high-speed data

processing device that performs logical, arithmetic or mem-

ory functions by the manipulations of electronic, magnetic

or optical signals or impulses, and includes the components

of a computer and all input, output, processing, storage,

software or communication facilities that are connected

or related to such a device in a system or network.” ORS

164.377(1)(b).

In the United States in 2020, computers are ubiq-

uitous in nearly every aspect of daily life, as illustrated by

the many examples cited in petitioner’s request for admin-

istrative review. See 306 Or App at 355 n 1.2 Given that

ubiquity, we agree with petitioner than an outright ban

on access to all computers of every kind for every purpose

without limitation, absent prior approval, is too restrictive

to reflect a weighing of the interests of the parties and falls

outside the range of permissible outcomes in this case. See

Penn, 365 Or at 635; Martin, 327 Or at 159-60. That is even

more so given the other supervision conditions that already

prohibit petitioner from engaging in the more specific types

of computer use that have been problematic in the past—

contacting minors and viewing pornography—and that allow

the board to monitor petitioner’s computer and internet use

to ensure that he is compliant with those restrictions.

As for the board’s position that “computer” does not

mean all computers, we reject that argument for similar

2

See also, e.g., United States v. Miller, 594 F3d 172, 185 (3d Cir 2010) (describ-

ing restrictions on computer and internet use for persons on supervised release

as bearing “on tools that are essential in modern life for legitimate purposes

of communication, commerce, and information-gathering”); U.S. v. Russell, 600

F3d 631, 637-38 (DC Cir 2010) (recognizing the significant role of computers in

both white and blue collar work in modern times); State v. Cornell, 202 Vt 19,

41, 146 A3d 895, 910-11 (2016) (describing a probation condition restricting the

defendant from having a home computer or accessing the internet as “a sweeping

restriction” that “would render nearly all the activities of life incalculably diffi-

cult in the modern age”).

358 Schmult v. Board of Parole

reasons as the Supreme Court rejected the board’s argument

in Penn. In Penn, as a special condition of probation, the board

ordered the petitioner not to enter into any “intimate rela-

tionships” or participate in any “intimate encounters” with

any person without prior written permission from his super-

vising officer. 365 Or at 609. When the petitioner pointed out

the breadth of that condition, the board declined to modify

it. Id. at 637. On judicial review, the board argued that, in

context, a person of ordinary intelligence would understand

“intimate” to mean only “sexual” and that, assuming that

limited meaning, the condition imposed a necessary restric-

tion in light of petitioner’s history. Id. at 636. The Supreme

Court rejected the board’s attempt to rewrite the condition

on judicial review. See id. at 637. Relying on the ordinary

meaning of “intimate,” which is much broader than “sexual,”

the court described the “breadth” of the challenged condition

as its “central feature * * * as written.” Id. Although a nar-

rower condition restricting the petitioner’s sexual relation-

ships and sexual encounters might have been reasonable for

the board to consider, the condition that the board actually

imposed was much broader and, ultimately, exceeded the

board’s authority under ORS 144.102(4)(a). Penn, 365 Or at

637-38.

In this case, the board has not explained why it

is necessary to prevent petitioner from using ATMs or

other myriad types of electronic devices that qualify as

computers—but which cannot be used to store or display por-

nography, communicate with teenaged girls, or spy on teen-

aged girls—nor has it argued that the broad condition, as

we and petitioner read it, legitimately advances the board’s

statutory goals. Cf. id. Indeed, we can think of no reason

that requiring a supervising officer’s permission (and poten-

tially a sex-offender treatment provider’s additional permis-

sion) before petitioner uses any computer for any purpose

would be essential to advancing the board’s goals of promot-

ing public safety and assisting in petitioner’s reformation.

Cf. id. In imposing the challenged condition on petitioner,

the board therefore acted beyond its statutory authority

with respect to imposing special conditions of post-prison

supervision. Cf. id.

Cite as 306 Or App 350 (2020) 359

In so holding, we express no opinion as to what

a permissible condition restricting petitioner’s computer

and internet use might look like. The permissible scope

of a special condition restricting computer and internet

use will vary depending on the supervisee’s individual

circumstances—see ORS 144.102(4)(a) (allowing for the

imposition of special conditions deemed “necessary because

of the individual circumstances of the person on post-prison

supervision”)—and, because the board has discretion, any

number of conditions could come within its discretion in this

case. See Penn, 365 Or at 635. After weighing the different

interests of the parties, the board may impose any condition

that, in light of petitioner’s individual circumstances, “the

board reasonably could view as essential to or required for

one or both of its broad objectives of ‘promoting’ public safety

and ‘assisting’ in an offender’s reformation.” Id. The condi-

tion need not be so narrowly tailored as to address “only

certain or immediate risks to public safety or offender refor-

mation,” but it should be targeted to addressing a “substan-

tial danger” in those regards. Weems/Roberts, 347 Or at 598.

Accordingly, we reverse the board’s order and remand

to the board for further proceedings.

Reversed and remanded.