The West Virginia Supreme Court has ruled it is a violation of the First Amendment to completely restrict a person's access to the internet as a condition of their parole from prison, and that such restrictions must be tailored based on the nature of a person's crime.
The justices ruled it was unconstitutional for the West Virginia Parole Board to revoke a man's parole because his girlfriend had a computer with internet access, even though he didn't use the computer, Justice Menis Ketchum wrote in the court's opinion handed down March 12.
The court also said the parole board had revoked the man's parole and sent him back to jail even though there was no evidence to show he violated parole.
Justices also ruled the man was guilty of violating his parole for using marijuana, but the three years he's spent in prison for that action isn't within the scope of state law.
The court upheld a 2015 ruling from Kanawha Circuit Court Judge Tod Kaufman saying the parole board violated the man's constitutional rights and ordered him released from prison on parole.
The warden of the Stevens Correctional Center appealed the circuit court ruling to the state Supreme Court on behalf of the state.
The court relied on the precedent set by the Supreme Court of the United States in a 2017 case, Packingham v. North Carolina. In that case, U.S. Supreme Court Justices ruled imposing a complete ban on a parolee's use of the internet is a violation of the First Amendment.
The West Virginia court leaned on that case and added that there are instances when the parole board has a legitimate interest in restricting internet access, but those restrictions have to be narrowly tailored so they don't burden a person's free speech more than necessary to further the government's interests.
In 1987, Bobby Ross sexually assaulted a woman in her apartment and stole money from her purse.
He was convicted and sentenced to prison for first-degree sexual assault, burglary and attempted aggravated robbery, according to the court’s opinion.
The parole board voted to release him from jail in May 2014
Per the terms of his parole, Ross was prohibited from accessing the internet for any reason — a broader condition than the U.S. Supreme Court struck down in the Packingham case, which only restricted a person’s access to social media, Ketchum said.
Ross’ condition for parole forbade him from visiting any website, “receiving email from an employer or medical professional, paying a bill online, using the internet to check the weather or using a smartphone,” Ketchum said.
Because his crime didn’t involve the internet, that condition of Ross’ parole was an overbroad restriction of free speech, violating the First Amendment, Ketchum said.
The court noted that Ross moved in with his girlfriend, who had a computer and internet access. Both of those things required a password for access, and Ross didn’t have the password, Ketchum said.
Ross’ parole officer found the computer in December 2014 and arrested Ross for having contact with it and failing to inform the West Virginia State Police of an internet account. He also was charged with using marijuana three times while on parole.
Ross admitted to using marijuana, but he denied using the computer.
The State Police didn’t do an analysis of the computer to determine whether Ross used it, Ketchum said, but the parole board still sent him back to prison for violating his parole.
Ketchum also said the board erred in its interpretation of state law regarding Ross’ marijuana use.
State law says the crime of possession of a controlled substance is excepted from those violations the board can use to revoke a person’s parole, Ketchum said.
Even if the board determines a person is guilty of possessing a controlled substance as a violation of his or her parole, the penalty is 60 days in jail for the first offense and 120 days for the second offense, both well below the three years Ross has spent in jail, Ketchum said.
As of Sunday afternoon, Ross was listed as a prisoner on the West Virginia Department of Corrections website.
