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Ninth Circuit Vacates Plethysmograph & Medication Conditions
Ninth Circuit Vacates Plethysmograph & Medication Conditions
The Ninth Circuit Court of Appeals held that a lower court should have articulated findings supporting special conditions of supervised release requiring a sex offender to submit to plethysmograph testing and medication.
In September 2003, 600 images and 20 videos of child pornography, including “videos of sadistic and masochistic acts” were discovered on Gordon Cope’s home computers. Cope pled guilty to possessing child pornography and, at 58 years old, was sentenced to 120 months in prison and lifetime supervised release. The standard 3-year supervision period was deemed insufficient, given Cope’s criminal history including his guilty plea to attempted sexual assault on a child.
The court imposed several special conditions of supervised release, “including a condition requiring Cope to participate in sex offender treatment…submit to polygraph testing, penile plethysmograph testing, and Abel testing, and to take all prescribed medication.”
On appeal, the Ninth Circuit rejected Cope’s argument that the district court failed to adequately explain why a lifetime term of supervised release was necessary. The court found that the lower court adequately stated its reasons for imposing the lifetime term, and the term was reasonable in light of the factors in 18 U.S.C. § 3553(a).
However, “the government concedes a remand is necessary because the district court failed to provide Cope and his counsel with notice of the special conditions requiring Cope, as part of his sex offender treatment program, to take all prescribed medications and to submit to plethysmograph, polygraph, and Abel testing.” The Court agreed and remanded “to permit the parties to address whether these special conditions of supervised release are appropriate.”
The government conceded, and the Court agreed, that remand was also necessary because the lower court failed to state thoroughly on the record why the conditions were necessary. Citing United States v. Weber, 451 F3d 552 (9th Cir. 2006), the Court noted that because the condition implicates a particularly significant liberty interest, the court must make heightened findings which, in the context of plethysmograph testing, requires the district court to “consider whether the testing is sufficiently likely to yield useful results ‘given a defendant’s specific characteristics,’ despite the known flaws and intrusiveness of plethysmograph testing, as well as explain why the many less-intrusive alternatives to plethysmograph testing are not adequate.” The Court made similar findings concerning the requirement to take medication, “insofar as that condition may require Cope to take medication that implicates a particularly significant liberty interest.”
Finally, the Court agreed “that the requirement that he ‘shall take all prescribed medication’ is overbroad insofar as it is not clearly limited to medications that are reasonably related to sex offender treatment.” See: U.S. v. Cope, 506 F.3d 908 (9th Cir. 2007).
The Ninth Circuit Court of Appeals held that a lower court should have articulated findings supporting special conditions of supervised release requiring a sex offender to submit to plethysmograph testing and medication.
In September 2003, 600 images and 20 videos of child pornography, including “videos of sadistic and masochistic acts” were discovered on Gordon Cope’s home computers. Cope pled guilty to possessing child pornography and, at 58 years old, was sentenced to 120 months in prison and lifetime supervised release. The standard 3-year supervision period was deemed insufficient, given Cope’s criminal history including his guilty plea to attempted sexual assault on a child.
The court imposed several special conditions of supervised release, “including a condition requiring Cope to participate in sex offender treatment…submit to polygraph testing, penile plethysmograph testing, and Abel testing, and to take all prescribed medication.”
On appeal, the Ninth Circuit rejected Cope’s argument that the district court failed to adequately explain why a lifetime term of supervised release was necessary. The court found that the lower court adequately stated its reasons for imposing the lifetime term, and the term was reasonable in light of the factors in 18 U.S.C. § 3553(a).
However, “the government concedes a remand is necessary because the district court failed to provide Cope and his counsel with notice of the special conditions requiring Cope, as part of his sex offender treatment program, to take all prescribed medications and to submit to plethysmograph, polygraph, and Abel testing.” The Court agreed and remanded “to permit the parties to address whether these special conditions of supervised release are appropriate.”
The government conceded, and the Court agreed, that remand was also necessary because the lower court failed to state thoroughly on the record why the conditions were necessary. Citing United States v. Weber, 451 F3d 552 (9th Cir. 2006), the Court noted that because the condition implicates a particularly significant liberty interest, the court must make heightened findings which, in the context of plethysmograph testing, requires the district court to “consider whether the testing is sufficiently likely to yield useful results ‘given a defendant’s specific characteristics,’ despite the known flaws and intrusiveness of plethysmograph testing, as well as explain why the many less-intrusive alternatives to plethysmograph testing are not adequate.” The Court made similar findings concerning the requirement to take medication, “insofar as that condition may require Cope to take medication that implicates a particularly significant liberty interest.”
Finally, the Court agreed “that the requirement that he ‘shall take all prescribed medication’ is overbroad insofar as it is not clearly limited to medications that are reasonably related to sex offender treatment.” See: U.S. v. Cope, 506 F.3d 908 (9th Cir. 2007).
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Related legal case
United States v. Cope
| Year | 2007 |
|---|---|
| Cite | 506 F.3d 908 (9th Cir. 2007) |