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Social media posts violating probation/parole

Stacked3This week's Daily Record column is entitled "Social media posts violating probation/parole."  My past Daily Record articles can be accessed here.

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Social media posts violating probation/parole

 

When I read a headline indicating that an “outrageous” Facebook post served as the basis of a parole violation for a parolee who had been convicted of vehicular homicide and other crimes, I fully expected that the post would relate to the original crime, the victim or perhaps the commission of a new crime. After all, if words alone were going to be enough to send a man back to prison, then you’d expect that the words in question would be either incredibly offensive or indicative of conduct that was clearly violative of his conditions of parole.

Instead, I was surprised to find that the words at issue appeared to relatively benign, all things considered. But don’t take my word for it, decide for yourself. Here’s what Ryan C. Fye, an Ohio parolee, posted to his Facebook wall: “Prison didnt break me. It MADE me. Im free. Im a new man. Dont come at me like before. Yes im skinny and muscular now. 7 months of working out everyday. Love my real friends an fam. Shout outs to my fam behind bars. Ill see ya when youre time is near! Miss you brothers!” [sic]

He accompanied the post with an image of him flipping the bird to the camera with both hands. Certainly the decision to include this photo was a questionable one, but as far as I’m concerned neither the photo nor the posting rose to the level of a parole violation. After all, in essence he simply said that he had been rehabilitated in prison, and isn’t that — along with punishment — one of the primary goals society hopes to accomplish by imprisoning individuals?

Given that fact, I was puzzled. How exactly did this particular posting somehow rise to the level of a parole violation?

According to one of the articles about this case, the judge ruled that the conduct in question violated the conditions of his parole relating to “community controls.” Specifically, the post was allegedly disrespectful toward the family of the 22-year-old victim who was a passenger in Fye’s vehicle and died when Fye crashed his car into a tree after driving his vehicle in a reckless manner by traveling 60 mph in a 20 mph zone.

The judge’s rationale makes no sense. It’s unclear how this post has anything to do with the victim, nor is it apparent why the victim’s family would be offended by it. Certainly, it’s plausible that someone might be offended by his obscene gestures, but that hardly seems to rise to the level of conduct sufficient to violate parole.

Of course, the reality is that parole conditions are often intentionally drafted in broad terms in order to provide more leeway to supervise and regulate a parolee’s conduct. And now that social media has become ubiquitous in our culture, the number of parole violations triggered by social media conduct will no doubt increase.

So, regardless of the validity of this particular violation, the lesson to be learned from this is that parolees should be wary of interacting on social media, lest their innocuous postings be interpreted as “improper” and be used to send them back to prison. A good lesson indeed, but the problem then becomes determining who will impart this advice to parolees? Certainly not their parole officers, who are arms of the state and typically have little concern for preserving the rights of parolees. And, parolees aren’t represented by legal counsel until a violation has been filed.

For that reason, astute criminal defense attorneys would be wise to prepare their clients for the realities of being on probation or parole in the 21st century. If you represent a client who is sentenced to prison time and faces the possibility of parole, advise your client of the risks encountered when one engages on social media while on parole. Similar admonitions should be provided to clients sentenced to probation.

We live in a digital age and online conduct can have real offline consequences. Never forget that when representing your clients.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.