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September 13, 2007

Sixth Circuit panel splits over penile penology procedures

Though the defedant's challenge to the possible use of penile plethysmography (PPG) add a prurient element to the case, the Sixth Circuit's split panel decision today in US v. Lee, No. 06-5848 (6th Cir. Sept. 13, 2007) (available here), turns on a number of interesting legal process issues.

In Lee, the majority dismisses as unripe the defendant's challenge to possible PPG as a supervised release conditions, in part because this condition would not be applicable until the defendant finishes his prison term and PPG many not be used when that occurs more than a dozen years from now.   Judge Batchelder dissents to argue that the defendant's claim should be dismissed with prejudice because of an appeal waiver.

September 13, 2007 at 12:01 PM | Permalink

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Comments

I am a member of the Community Notification Guidelines Committee. Relative to the Penile Plethysmograph, the following is noted.

When the hearings were held at the Arizona Supreme Court to determine if the Program used in Maricopa county would be adopted throughout Arizona for sex offender treatment, the following was noted about the Penile Plethysmograph.

Measuring Effectiveness

“There are several ways that treatment with sex offenders is measured in the literature. Maletzky (1991:27) argues that the objective is to eliminate deviant sexual arousal (usually determined with the plethysmograph and patient self-reports) because the goal of decreasing the probability of repeated offense by strengthening resistance has not been considered sufficient. Unfortunately, the plethysmograph produces false negative 29% of the time (Maletzky, 1991:237) and 30% of offenders will not manifest deviant arousal on it. Marshall, Barbaree, and Butt (1988) and others have “shown that a substantial proportion of sex offenders display no arousal to any stimulus at phallometric testing and that a further significant number respond normally rather than displaying a deviant patters.” (Marshall, Eccles, and Barbaree, 1993:447). A second measure of effectiveness is self-reports but they also are flawed because most sexual offenders engage in denial.” (Arizona Probation Sex Offender Programs, Presentation to the Sex Offender Treatment Committee, September 23, 1997, LAM & Associates for the Arizona Supreme Court.

If you don't understand the significance of false negatives that means that 29% of the time people are said to be divient when they are not. The next item said that 30 % did not manifest any. (That makes 59% and a significant number were normal. In other words, the use of such a machine is garbage and as a result of that and a 9th circuit decision, the PP is no longer used in Arizona. Ken

Posted by: Kenneth J. Bond | Sep 13, 2007 3:51:13 PM

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