Last year the Vermont Supreme Court vacated four sex offender probation conditions, finding that they improperly delegated judicial authority to probation officers and were overbroad, unconstitutional or based upon insufficient findings.
In 2013, Owen Cornell was convicted of a sex offense and sentenced to two to six years in prison. The trial court suspended all but 20 months with credit for time served, and imposed a term of probation with 21 supervision conditions. Cornell appealed six of those conditions.
The Vermont Supreme Court invalidated four of the probation conditions; it also instructed that a fifth condition should be revised.
The Court first vacated a condition that required Cornell to participate in any treatment ordered by his probation officer, noting that the same condition had been struck down in State v. Putnam, 2015 VT 113, 130 A.3d 836 (Vt. 2015) as impermissibly delegating “open-ended authority” from the trial court to a probation officer.
“While it is permissible under Putnam to delegate authority to a probation officer to select among a predetermined list of programming options relevant to a defendant’s particular needs,” the state Supreme Court held it could not “approve the delegation of ‘full authority’ to impose counseling or training purely on the grounds that defendant may falter in his commitment to pre-existing programming.”
The Court remanded for the trial court to either revise the language of the condition or strike it entirely.
It also invalidated a condition requiring probation officer approval of Cornell’s residence and employment. The Supreme Court agreed with Cornell that “the sentencing court’s findings ... were insufficient to justify the imposition of this broad condition.” In reaching that conclusion, the Court followed its earlier rulings in State v. Freeman, 2013 VT 25, 70 A.3d 1008 (Vt. 2013) and State v. Campbell, 2015 VT 50, 120 A.3d 1148 (Vt. 2015).
As in Campbell, the Court found “that the [trial] court could craft a narrower condition that anticipated future issues while still providing flexibility.” As such, it struck the condition and remanded “for additional justification, revision, or removal.”
The Supreme Court then turned to a condition that required Cornell to give blanket permission to his probation officer for warrantless searches and seizure privileges. The Court concluded “that the condition is impermissible in the absence of any requirement of reasonable suspicion.” The condition “should be redrafted to eliminate the specification that the state’s search powers are based on some kind of waiver by defendant,” it instructed. That condition also “should state explicitly that the State’s search rights are dependent on its having reasonable suspicion, that evidence of a violation of probation conditions would be found.”
Additionally, the Court instructed that “the condition should clearly state the constitutional requirement to make the probationer aware of his or her rights and the State representative aware of the limitations of its power.”
The Supreme Court further invalidated a condition prohibiting Cornell from owning a computer in his home or accessing the Internet without approval from his probation officer.
The Court held “that ‘without evidence that [Cornell’s] offense involved the use of a computer or the internet,’ the condition is unconstitutionally overbroad and fails to meet Vermont’s individualized sentencing requirements.”
While upholding a condition that prohibited “violent or threatening behavior,” the Supreme Court recognized “that the wording of the condition has frequently caused it to be narrowly interpreted to ensure that the probationer has fair warning of its meaning.” As such, the Court asked “trial judges to clarify this probation condition by incorporating language that ‘anticipates the interpretation difficulties and defines more specifically the coverage of the condition.’” See: State v. Cornell, 2016 VT 47, 146 A.3d 895 (Vt. 2016).
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Related legal case
State v. Cornell
|Cite||2016 VT 47, 146 A.3d 895 (Vt. 2016)|
|Level||State Supreme Court|