UM Lawyer FALL/WINTER 2006-07 • Often a sex offender’s partner in crime

Often a sex offender’s partner in crime,
computer is key to monitoring probationers

by Jennifer Farish


Third-year law students at UM will have an opportunity to argue an appellate case before the state Court of Appeals in 2007 through the law school’s Criminal Appeals Program. The 2006-07 academic year will be the third consecutive year for the Court of Appeals to host a special session on the UM campus.

Technology is outpacing the law, and the resulting gap is only expected to increase over time. That’s why Jim Tanner, president of KBSolutions Inc., a Colorado consulting firm serving criminal-justice and social-service agencies, points to work by the National Center for Justice and the Rule of Law at UM as crucial to closing the gap, particularly as it relates to monitoring sex offenders participating in community-based supervision.

On average, only about 35 percent of convicted sex offenders in America go to prison, and those who are not incarcerated generally participate in some form of probation. Most probationers have access to a computer and the Internet, which gives them access to illegal child pornography Web sites. In addition, computers can be used to download and transmit child pornography, so it has become important for officers monitoring probationers to know the laws that govern the search and seizure of computers.

NCJRL senior counsel Marc Harrold has been working closely with Tanner and others in the field of probation searches to train and educate government agencies on the legalities of monitoring Internet activity.

What is the NCJRL?

The National Center for Justice and the Rule of Law is a national center established at the UM School of Law. The center focuses on issues relating to the criminal-justice system and receives funding from the Department of Justice, Bureau of Justice Assistance, Office of Justice Programs. The purpose of the NCJRL is to promote the two concepts that make up its title: The concept of “justice” appeals to basic notions of equality, equity and fairness. It often has an emotive component: The result was simply not fair. In contrast, the phrase “the rule of law” refers to the requirement that certain procedures and principles must be followed in each case to reach a correct result.

The NCJRL implements its mission through projects, conferences, educational programs and publications that examine important criminal law and procedure issues.

Harrold presented his research and training at several national conferences over the past year, including the 18th annual Crimes Against Children Conference in Dallas, Texas. He also recently made presentations in Council Bluff, Iowa, and in Atlanta, Ga., on behalf of the National Law Enforcement and Corrections Technology Center in Denver. He is slated to give an updated presentation in February at the American Probation and Parole Association winter conference and has written several articles on his findings.

“Monitoring the activities of probationers who have been convicted of crimes involving child exploitation is crucial due to the extremely high recidivism rate for this type of offender,” Harrold said. “The goals of the probation officers and police officers are not always identical. While police officers are primarily attempting to gather admissible evidence for a future criminal prosecution, probation officers who engage in computer monitoring are conducting more of a ‘virtual home visit’ to determine whether a probationer is complying with the terms of his probation.”

Joe Russo, program manager of corrections at the National Law Enforcement and Corrections Technology Center, said monitoring a sexual offender’s computer use provides valuable information that can be used in that offender’s rehabilitation.

“First, it can provide us with important information about a sex offender’s interests and drives that he may keep hidden from therapists,” Russo said. “Getting information about an offender’s true sexual interests and intensity is very helpful to the treatment process as it helps therapists focus on the real issues.”

Second, ongoing monitoring of a sex offender’s computer use provides information about whether the offender is complying with both a treatment plan and the overall conditions of supervision, Russo added. Russo, who has worked with Harrold and Tanner to train probation officers, said the NCJRL research on the subject is crucial in helping agencies sort out these still-developing issues.

“Many agencies are particularly unsure of what they can and cannot authorize their officers to do in terms of computer searches. The work of NCJRL is extremely important in helping community corrections agencies sort through these complex legal issues so they can confidently implement computer-monitoring programs.”

Tanner added that Harrold and the NCJRL are the only nonjudicial entities addressing the issue, and the inclusion of this topic in NCJRL’s training curricula for attorneys general provides national recognition as well as a standardized, objective approach to the issue.

“An independent, neutral examination of the issue is sorely needed to promote a full exploration by the courts. Professor Harrold’s and NCJRL’s work in this area provide the sole objective ‘voice in the wilderness’ for the courts considering this important public safety issue,” Tanner said. “I cannot overemphasize the significance of this contribution to both the justice system and the citizens of the United States.”