Court of Appeals Vacates Overbroad Probation Conditions in Two Recent Decisions

In a span of a few weeks, the Court of Appeals issued two decisions vacating sex offender probation conditions for being unconstitutionally overbroad. While both cases dealt with a previously criticized condition prohibiting all contact with minors, one of the cases went even further and vacated several additional conditions that were imposed by the sentencing court.

In both Padilla-Garcia v. State and Bryan v. State, the defendants were convicted of sexual offenses against minors. Both defendants appealed their convictions as well as the conditions of probation.

Padilla-Garcia v. State

The probation condition at issue in Padilla-Garcia dealt with a no-contact provision involving minors that prohibited:

“unsupervised contact, whether directly in person or indirectly through any means of communication or through employment, volunteer activity or otherwise with any child under the age of sixteen (16), including your own children, nor with any person unable to give consent because of mental or emotional limitations.”

The Court noted that it had previously found similarly-worded probation conditions to be overly broad and reiterated that:

“the special condition at issue fails to put Padilla-Garcia on notice of the groups and places he is required to avoid. The condition could be applied to prohibit [him] from shopping at virtually any store, visiting any restaurant, or literally going to any other location in which [he] would come into contact with the general public.”

As such, the Court vacated that condition and remanded his case for re-sentencing.

It should be noted that many courts have recently inserted additional language into these no-contact provisions in an effort to remedy this problem. For instance, some courts have added the following: “Incidental contact with children in a public setting will not be considered to be a violation of this condition.”

However, not every court has done this. In fact, in the Bryan case, the trial court also added some additional language to the no-contact provision but the language it decided to add was found by the Court of Appeals to still be insufficient.

Bryan v. State

The Bryan case was decided just two weeks earlier and dealt with a similar no-contact provision. The wording of the condition in Bryan’s case had the following additional language:

“If you have incidental contact with children, you will be civil and courteous to the child and immediately remove yourself from the situation. You will discuss the contact at your next meeting with your Community Supervision Officer.”

Despite this additional language, the Court still held that the condition failed “to afford the probationer notice of the groups and places he must avoid.” It was not quite as clear as the additional language above that incidental contact in a public setting would not result in a violation of the probation conditions.

Moreover, the Court also vacated four additional probation conditions that it similarly held to be overbroad. These were as follows:

Images of Minors. Except as authorized by the court or the Community Supervision Officer, you shall not create, possess, access or control any type of photograph, video, rendering, or digital imagery of any minor.

The Court cited case law from California that held that a “probation condition was overly broad where it prohibited possession of pictures of any children.”

Relationships. You shall not date or marry anyone who has children under the age of eighteen (18), unless approved in advance and in writing by the Community Supervision Officer in consultation with the treatment provider or the sentencing court. You are required to notify any such person of your criminal history.

The Court cited to cases from several other states that held that this type of condition is overly broad. The reasoning was that it imposes the restriction “based merely on [the other] adult’s parenthood.” Meaning that it doesn’t take into account the possibility that this other person might not have a relationship or any contact with their child.

Sexually oriented material. You shall not possess or subscribe to any sexually oriented or sexually stimulating material to include mail, computer or television, nor patronize any place where such material or entertainment is available.

The Court noted that probation conditions prohibiting “sexually explicit material” were proper but the term “sexually stimulating material” was problematic positing, “how can we tell which images or voices are sexually stimulating for [Bryan]?”

Plus, outlawing “places” where such material is available was also problematic to the Court because it could conceivable prohibit the probationer from entering a public library.

900 Numbers. You shall not utilize “900” telephone numbers … without prior written permission from your Community Supervision Officer.

The Court pointed out that while probation conditions prohibiting the use of “900 number telephone sex lines” have been found to be proper, it was aware of no authority that would authorize a broad prohibition against contacting any type of “900 number.”

Interestingly, these are very common probation conditions that are imposed by courts in sex offense cases throughout Georgia. As a result of this opinion, significant changes will need to be made to the wording of these conditions going forward.