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In the catalogue of modern life’s minor pleasures is the sheer joy of beating a traffic ticket. Lester Gerard Packingham, Jr. had that experience when his North Carolina ticket was dismissed. He shared that joy with this exuberant Facebook posting:
Man. God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court costs, no nothing spent … Praise be to GOD, WOW! Thanks JESUS!1
Unfortunately, for the act of sharing his delight with that innocuous Facebook post, Lester Packingham was convicted of a felony.
Under North Carolina law, it is a Class I felony for an individual who is on North Carolina’s Sex Offender and Public Protection Registry to access any commercial social networking website that he knows does not restrict access to adults.2 Packingham had been placed on the registry because of a 2002 conviction, when he was a 21-year-old college student, for a single count of taking indecent liberties with a minor.3 He had been sentenced to the lowest possible sentence, 10 to 12 months in jail, which was suspended, and a two-year period of supervised probation. Packingham fulfilled the terms of his sentence, and had successfully completed his period of probation four years before North Carolina enacted the law that led to his felony conviction for the celebratory posting when his traffic ticket was dismissed.
The Law’s Overbreadth and First Amendment Implications
The law barring access to social media is breathtakingly broad in its application. Under North Carolina law, registration is required for a wide swath of offenses, in many cases irrespective of whether or not the offense involved a minor and in some situations covers conduct that does not even involve a sexual offense. It is reported that more than 20,000 North Carolinians are currently subject to the registration requirement, and more than 1,100 have been prosecuted under the dubious provision.
Further, the array of websites that are off-limits to registrants extends far beyond Facebook to encompass a cornucopia of modern social communication sites, such as Google+, LinkedIn, YouTube, Instagram, Reddit, MySpace, and even such non-traditional sites as FoodNetwork.com and nytimes.com. Although the hundreds of millions who use these tools can barely be tabulated, Packingham’s lawyers noted that while 100 million used Facebook at the time North Carolina enacted the statute in 2008, that number has now grown to nearly 2.8 billion.4
Perhaps more onerous than the number of individuals subjected to a restriction that bars so many from these ubiquitous and increasingly invaluable communications tools is the law’s striking lack of any criminal intent requirement. Mere knowledge that a minor can access a site accessed by the registrant is the criminal offense. It does not matter if the registrant’s communication was completely devoid of any improper intent or motive. It is irrelevant if it involved no risk of exploitation or solicitation of a minor. In fact, as in Lester Packingham’s communication, the fact that it is completely innocuous is no defense.5
Lester Packingham fought the charge. He was convicted after a trial at which the prosecutor stressed to the jury that the mere fact of accessing the site is sufficient to convict, even if there was no wrongful intent in doing so.6 On appeal, Packingham’s lawyers challenged the law as a violation of a fundamental First Amendment right. The intermediate appellate court agreed and reversed the conviction,7 but the North Carolina Supreme Court upheld the conviction, over a strong dissent.8 Now the case will be considered by the U.S. Supreme Court, which in granting a petition for a writ of certiorari certified the following question:
Whether, under this Court’s First Amendment precedents, such a law is permissible, both on its face and as applied to petitioner — who was convicted based on a Facebook “post” in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”
But there is a lot more at stake in this case than whether this particular statute offends the First Amendment. And that is where NACDL’s public policy advocacy and its highly regarded amicus program enter the picture.
NACDL Raises Concerns With Collateral Consequences and Inadequate Intent Requirements
On Dec. 22, 2016, NACDL submitted an amicus brief in support of Lester Gerard Packingham.9 NACDL’s brief contextualizes the North Carolina statute by appropriately identifying it as “one of a growing number of federal and state laws that effectively impose criminal punishments outside the normal, individualized criminal sentencing process. …”10 In other words, this new felony provision, which criminalizes an innocuous social posting solely as a result of an individual’s past criminal conviction, is just another of the more than 48,000 collateral consequences that burden those who have a criminal history.11
For the past several years, NACDL has devoted considerable resources to highlight the enormously detrimental effect of collateral consequences, especially when the sanction bears no reasonable relationship either temporally or substantively to the triggering offense. The issue was addressed in a report that catalogued the national trend to impose sweepingly broad barriers, debarments, penalties, and proscriptions wholly outside the criminal sentencing process, and completely without regard to individualized necessity. Collateral Damage: America’s Failure to Forgive or Forget in the War on Crime — A Roadmap to Restore Rights and Status After Arrest and Conviction has elevated the national discussion and garnered considerable attention.12
The Packingham case presents a unique opportunity for NACDL to expand its advocacy beyond a generalized discussion of the need to rein in these oppressive legislative enactments. In its brief, NACDL urges the U.S. Supreme Court to consider the constitutional implications of collateral consequences:
This case presents an opportunity for the Court to clarify the constitutional limitations on these hidden sentences — not just the First Amendment-based limitations on the government’s power to punish speech …, but the more general limitations that constrain the government’s power to impose any criminal punishment.13
NACDL has presented the Court with three distinct ways in which provisions like the one that ensnared Lester Packingham run afoul of fundamental constitutional protections.
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First, in the absence of any evidence that the normal sentencing process does not fulfill legitimate governmental concerns, extra-sentencing punishments embodied by collateral consequences violate due process.
Second, unlike criminal sentences that are calibrated to the particular offense and the individual convicted of it, collateral consequences operate categorically, uniformly subjecting large numbers of offenders to myriad burdensome conditions without regard to the specifics of the triggering offense or the rationality of the collateral sanction. As an example, many collateral consequences are triggered by the mere fact of a felony conviction. But what is the rationality for a debarment on the right to vote or to own a weapon, irrespective of when the offense occurred or without any distinction as to whether the conviction was for the commission of an armed robbery, possession of a controlled substance, a tax offense, or insider trading? Of course, nowhere is this irrationality more evident than in the area of sexual registration provisions, and the various limitations imposed upon “sex offenders,” without any differentiation of the exact nature of the crime or the circumstances of the offender. There is usually no distinction between a youngster convicted for having sexual contact with a minor who is a couple of years younger, and a serial child molester or a violent, predatory rapist.
Third, and perhaps most significantly with respect to NACDL’s long-standing efforts to combat overcriminalization, particularly involving inadequate intent requirements, the North Carolina provision presents a classic example of strict liability run amok. It indisputably imposes a criminal punishment even though Mr. Packingham intended no harm whatsoever, and his posting evinced no evidence of criminality. This case presents another opportunity for NACDL to once again urge the Court to require genuine mens rea requirements, a fundamental moral anchor to the criminal law. This provision, like so many collateral consequences, is far more expansive than necessary to achieve a public safety objective, the traditional basis for a limited exception to intent requirements.
Thus, the case of Lester Packingham is an important vehicle through which NACDL’s public policy advocacy for a more narrowly circumscribed criminal justice system may directly impact the nation’s jurisprudence. At a minimum, it provides a concrete example of how the nation’s intricate network of collateral sanctions relegates those who pass through the criminal justice system to second class status. Hopefully, the U.S. Supreme Court will take note and will agree that “[t]he sweeping scope of many collateral consequence laws confirms the need for meaningful judicial checks to ensure that such provisions do not exceed constitutional limits.”14 In an age in which everyone from the president of the United States on down communicates on social media, it ought not to be a crime to celebrate the dismissal of a traffic ticket, irrespective of a person’s past.
- Brief for Petitioner at 3, Packingham v. North Carolina, No. 15-1194, 137 S. Ct. 368 (2016).
- N.C. Gen. Stat. § 14-202.5
- Brief for Petitioner at 3, Packingham, No. 15-1194.
- Id. at 4-5.
- Id. at 11.
- North Carolina v. Packingham, 748 S.E.2d 146 (N.C. App. 2013).
- State v. Packingham, 777 S.E.2d 738, 751 (N.C. 2015) (Hudson, J., dissenting).
- Read the amicus brief at https://www.nacdl.org/Amicus/2016.
- Brief for the National Association of Criminal Defense Lawyers at 3 as Amici Curiae Supporting Petitioner, Packingham v. North Carolina, No. 15-1194, 137 S. Ct. 368 (2016). NACDL’s brief was authored by Jonathan D. Hacker, Deanna M. Rice, and Kimya Saied of O’Melveny & Myers LLP. Jonathan Hacker is a national co-chair of NACDL’s Amicus Committee.
- See ABA National Inventory of Collateral Consequences of Conviction, www.abacollateralconsequences.org/map.
- The report is available at https://www.nacdl.org/reports. See also Editorial, In Search of Second Chances, NY Times (June 1, 2014), https://www.nytimes .com/2014/06/01/opinion/sunday/in-search-of-second-chances.html?hpw&rref=opinion&_r=1.
- Brief for the National Association of Criminal Defense Lawyers at 3, Packingham, No. 15-1194 (emphasis in original).
- Id. at 16.
About the Author
Norman L. Reimer is NACDL’s Executive Director and Publisher of The Champion.
Cover Illustration: © San Francisco-based artist Matt J. Carter