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Unsupported Penile Plethysmograph Testing as Condition of Release Rises to Due Process Violation, Creates Liberty Interest
The Ninth Circuit U.S. Court of Appeals held that arbitrarily imposing a penile plethysmograph [electromechanical gauge of male sexual stimulation] testing requirement as a condition of supervised release for a sex offender violates due process liberty interests. To enforce such a condition, a court must first make an evidentiary determination that the government has met its burden to accomplish at least one factor for supervised release set forth in 18 U.S.C. § 3583(d)(1), which involves no greater deprivation of liberty than is reasonably necessary.
Matthew H. Weber was convicted of one count of child pornography (18 U.S.C. § 2252A(a)(5)(B)) for having hundreds of such illicit images on his computer hard drive, and was sentenced to 27 months in prison plus 3 years supervised release. One of his twenty release conditions was to submit to risk assessment testing, including penile plethysmograph. The latter involves placing an electromechanical clamp on the subject?s penis which is monitored while subjecting him to sexual imagery stimulation.
Weber?s objection to this condition in U.S. District Court was overruled, and he appealed.
The Ninth Circuit first determined that his appeal was immediately ripe even though it was a condition to which Weber had never been actually subjected, because ?a term of supervised release, even if contingent, is part and parcel of the defendant?s sentence.?
The appellate court then reviewed § 3583 and concluded that its statutory terms of supervised release ?are permissible only if they are reasonably related to the goal of deterrence, protection of the public or rehabilitation of the offender.? Because these terms are government-imposed, the court next held that the burden of proof for such conditions falls upon the government. Moreover, when a sentencing court sets such terms, and the restrictions implicate a particularly significant liberty interest, the court is obliged to articulate on the record its reasons and the supporting evidence it relied upon.
Looking at penile plethysmograph testing as a case of first impression, the appeals court found the technique to be an intrusion on one?s physical and mental liberty, probing both one?s genitalia and his innermost thoughts; it was also exceptionally intrusive in nature and duration (often lasting several hours). Accordingly, the court held that such testing rises to a protectable liberty interest.
Although there is disagreement as to the ultimate value of penile plethysmograph results, the Ninth Circuit ruled that it could not categorically say that plethysmograph testing could never reasonably promote one or more of § 3583?s stated goals, and therefore was not inherently inconsistent with a releasee?s liberty interests.
But while such a testing requirement could be so justified, the court held that the justification could never be simply presumed, but must instead be preceded by a thorough sentencing court evaluation to determine that it is ?reasonably related? to ?the nature and circumstances of the offense and the history and characteristics of the defendant,? and, of course, serves to meet one or more of the goals of § 3583. Such a determination must be based upon ?on-the-record medically-grounded findings.? Nothing less can ?justify the intrusion into a defendant?s significant liberty interest in his own bodily integrity.?
Accordingly, the Ninth Circuit reversed and remanded to the district court to allow the government to attempt to meet its now considerable burden. Judge Noonan, concurring with the panel, went even further, flatly declaring penile plethysmograph testing so Orwellian as ?to be always a violation of personal dignity of which prisoners are not deprived. ... There is a line at which the government must stop. Penile plethysmography testing crosses it.? See: United States v. Weber, 451 F.3d 552 (9th Cir. 2006).
Matthew H. Weber was convicted of one count of child pornography (18 U.S.C. § 2252A(a)(5)(B)) for having hundreds of such illicit images on his computer hard drive, and was sentenced to 27 months in prison plus 3 years supervised release. One of his twenty release conditions was to submit to risk assessment testing, including penile plethysmograph. The latter involves placing an electromechanical clamp on the subject?s penis which is monitored while subjecting him to sexual imagery stimulation.
Weber?s objection to this condition in U.S. District Court was overruled, and he appealed.
The Ninth Circuit first determined that his appeal was immediately ripe even though it was a condition to which Weber had never been actually subjected, because ?a term of supervised release, even if contingent, is part and parcel of the defendant?s sentence.?
The appellate court then reviewed § 3583 and concluded that its statutory terms of supervised release ?are permissible only if they are reasonably related to the goal of deterrence, protection of the public or rehabilitation of the offender.? Because these terms are government-imposed, the court next held that the burden of proof for such conditions falls upon the government. Moreover, when a sentencing court sets such terms, and the restrictions implicate a particularly significant liberty interest, the court is obliged to articulate on the record its reasons and the supporting evidence it relied upon.
Looking at penile plethysmograph testing as a case of first impression, the appeals court found the technique to be an intrusion on one?s physical and mental liberty, probing both one?s genitalia and his innermost thoughts; it was also exceptionally intrusive in nature and duration (often lasting several hours). Accordingly, the court held that such testing rises to a protectable liberty interest.
Although there is disagreement as to the ultimate value of penile plethysmograph results, the Ninth Circuit ruled that it could not categorically say that plethysmograph testing could never reasonably promote one or more of § 3583?s stated goals, and therefore was not inherently inconsistent with a releasee?s liberty interests.
But while such a testing requirement could be so justified, the court held that the justification could never be simply presumed, but must instead be preceded by a thorough sentencing court evaluation to determine that it is ?reasonably related? to ?the nature and circumstances of the offense and the history and characteristics of the defendant,? and, of course, serves to meet one or more of the goals of § 3583. Such a determination must be based upon ?on-the-record medically-grounded findings.? Nothing less can ?justify the intrusion into a defendant?s significant liberty interest in his own bodily integrity.?
Accordingly, the Ninth Circuit reversed and remanded to the district court to allow the government to attempt to meet its now considerable burden. Judge Noonan, concurring with the panel, went even further, flatly declaring penile plethysmograph testing so Orwellian as ?to be always a violation of personal dignity of which prisoners are not deprived. ... There is a line at which the government must stop. Penile plethysmography testing crosses it.? See: United States v. Weber, 451 F.3d 552 (9th Cir. 2006).
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Related legal case
United States v. Weber
| Year | 2006 |
|---|---|
| Cite | 451 F.3d 552 (9th Cir. 2006) |
| Level | Court of Appeals |
| Injunction Status | N/A |