R.S. Mutter, Warden v. Bobby Ross

Summary

The Supreme Court of Appeals of West Virginia held that a parole condition imposing a complete ban on a parolee’s use of the internet was an overbroad restriction of lawful speech under the First Amendment. The court also found insufficient evidence that the parolee failed to report an internet account and held that simple marijuana possession did not authorize full parole revocation under the applicable statute. The circuit court’s order vacating the parole revocation and reinstating parole was affirmed.

Holdings

1. Generally, under Packingham v. North Carolina, a parole condition imposing a complete ban on a parolee's use of the internet impermissibly restricts lawful speech in violation of the First Amendment. Internet restrictions may be imposed when the Parole Board has a legitimate interest, but they must be narrowly tailored so that they do not burden substantially more speech than necessary to further that interest.
2. The Board's finding that Ross failed to inform the State Police of an internet account was arbitrary and capricious because the record contained no evidence that Ross owned an internet account or used the internet while on parole.
3. Under West Virginia Code § 62-12-19(a)(2)(A)-(B), simple possession of a controlled substance is excluded from the general category of new criminal conduct for which parole may be revoked. For a parole violation involving simple possession, the statutory confinement limits apply unless the Board makes specific written findings of fact warranting a different penalty.

Questions Presented

1. Whether a parole condition completely prohibiting a parolee from possessing or having contact with any computer or device with internet access violates the First Amendment.
2. Whether the Parole Board's finding that Ross failed to report an internet account was supported by evidence.
3. Whether the Parole Board could revoke Ross's parole for simple possession or use of marijuana without making specific written findings justifying departure from the statutory lesser penalties.

Disposition

affirmed