« "Risk Redux: The Resurgence of Risk Assessment in Criminal Sanctioning" | Main | Guess which state has the highest rate of incarceration of black men in the entire US? »

October 3, 2013

Second Circuit finds substantive due process problems (and others) with penile plethysmography testing for convicted sex offender

Thanks to a number of helpful readers, I have not missed the news of a notable sentencing ruling by a Second Circuit paenl today in US v. McLaurin, No. 12-3514 (2d Cir. Oct. 3, 2013) (available here). Here is how the opinion starts:

David McLaurin, a convicted sex offender, was required by federal law to register any change in his address.  He failed to do so and, following his guilty plea, was sentenced in the United States District Court for the District of Vermont to fifteen months’ imprisonment and five years of supervised release.  As a condition of his release, McLaurin was required to “participate in an approved program of sex offender evaluation and treatment, which may include . . . plethysmograph examinations, as directed by the probation officer.” Judgment, United States v. McLaurin, No. 11 Cr. 113 (WKS), Dkt. No. 28 (D. Vt. Aug. 22, 2012), J. App. 9.

This examination involves the use of a device know as a plethysmograph which is attached to the subject’s penis.  In some situations, the subject apparently may be required, prior to the start of the test, to masturbate so that the machine can be “properly” calibrated.   The subject is then required to view pornographic images or videos while the device monitors blood flow to the penis and measures the extent of any erection that the subject has.  The size of the erection is, we are told, of interest to government officials because it ostensibly correlates with the extent to which the subject continues to be aroused by the pornographic images.

McLaurin objected to this requirement as unnecessary, invasive, and unrelated to the sentencing factors specified in 18 U.S.C. § 3553(a) and therefore impermissible as a discretionary condition of supervised release.  See 18 U.S.C. § 3583(d)(1). The district court nonetheless imposed the requirement without reference to the statutory goals of supervised release or to any expected benefits to the public or to McLaurin.  McLaurin now appeals.

We hold that this extraordinarily invasive condition is unjustified, is not reasonably related to the statutory goals of sentencing, and violates McLaurin’s right to substantive due process. We therefore vacate the condition.

October 3, 2013 at 06:03 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Second Circuit finds substantive due process problems (and others) with penile plethysmography testing for convicted sex offender:


[ sigh ]
Why not just have him wear a peniscam ?

Posted by: Just Plain Jim (Just Another Guy) | Oct 3, 2013 6:09:40 PM

I think (and fear), JPJ, you have suggested the idea for the next big money-making product in the world of Technocorrections.

Posted by: Doug B. | Oct 3, 2013 6:19:02 PM

Substantive due process is a lawyer fiction from the Dred Scott decision, to protect the fundamental rights of the slave owner. It is a fictional abomination. It does not exist in real life. It was used to lawlessly violate the Missouri Compromise and a ratified international treaty limiting the spread of slavery. These had prevented war for 40 years. That decision was a major cause of the Civil War (the biggest was the idiocy of Abraham Lincoln, a catastrophic lawyer dumbass). It has no legal, moral, or logical validity.

That being said, many substances can impair erections, and could be ingested prior to testing, to defeat the test. That test has no forensic validity. Again, a method used for clinical purposes, not validated for forensics, is being wrongly used by the lawyer.

Posted by: Supremacy Claus | Oct 3, 2013 7:32:23 PM

Just as the Second Circuit was correct in slapping down King (oooops, make that "Judge") Weinstein, it is also correct here. This condition of supervised release is utterly disgusting. It's also very likely based on junk science. Lastly, it's simply more power than the state ever ought to have. I'm no libertarian, but his is taking state power to an absurd, "Brave New World" extreme.

Maybe Pat Leahy and Rand Paul can do something useful for once and introduce legislation that would end this thing. Don't hold your breath, however.

Posted by: Bill Otis | Oct 3, 2013 7:43:19 PM

the plethysmograph was invented in communist Czechoslovakia to test army conscripts that claimed they were homosexuals so to avoid service. And, now it is used in the Land of the Free. There must be some meaning to this other than what have we become.

Posted by: m | Oct 3, 2013 9:34:29 PM


I have to got to go out and bash my head against the biggest boulder I can find a few times to set my thinking straight. I actually agree with Bill. The recognition of the use (abuse) of Junk science and the ever increasing unconstitutional tactics of the State against the rights of an individual are comments I would NEVER assign to him.

PS: Doug, there are already many, many more big money Technocorrections ideas out there, such as GPS. GPS is one of the biggest frauds out there. I wonder to whose campaigns do these firms contribute?

Posted by: albeed | Oct 3, 2013 10:01:43 PM

Well-reasoned opinion reaching the correct conclusion.

Posted by: Michael R. Levine | Oct 3, 2013 10:11:11 PM

Dr. Levine:

I have read the opinion also.

I think the opinion would also be well-reasoned in one replaced the word "plethysmograph", with the words "residency restrictions" or "right to travel undisturbed in interstate commerce", with some minor nuanced corrections specific to these terms.

Any thoughts?

Posted by: albeed | Oct 3, 2013 10:49:43 PM

Albeed, thanks for the promotion to "Dr." I like it! Before reaching a definitive conclusion on the propriety of the conditions you mention, I would like to hear strong arguments on each side of the question. Then, like Solomon, I will rule.

Posted by: Michael R. Levine | Oct 3, 2013 11:23:36 PM

→ Bill Otis re 3 Oct 2013 Thu 19:43:19 EDT

An excellent write ‼

Posted by: Just Plain Jim (Just Another Guy) | Oct 4, 2013 5:20:09 AM

This plethysmograph or whatever you call it is not only invasive, but is about as accurate as the theories that the discredited charlatan, Cesare Lombroso, developed over a century ago that postulated that one could precict a person's liklihood to criminality to the shape of their nose, the design of their feet soles, etc. Hitler relied heavily on this psuedo-science to determine who was a true member of the "master" race.

Also, since this plethy what-you-may-call-it device is used only on MALE offenders, what type of psuedo-scientific machines do they use on FEMALE offenders?

I'm surprised that inmates in prisons that use these fraudulant devices have not yet gone on rampages vandalizing this equipment.

Posted by: william delzell | Oct 4, 2013 9:50:04 AM

I got the first word: penal. I figured they were gonna test some aspect of a penitentiary with a sonar device or something. The second word was beyond the Pale as a certain author once said. And, then I read the article about the jerkin off and what not and realize that the whole state is Beyond the Pale. Rudyard Kipling coined that phrase and he means beyond the Paletinate. Pirate Territory. Probably some fag in the penal system (ouch that word again) wanted to watch guys beat off. Its a bit off the beaten path tho.

Posted by: Liberty1st | Oct 4, 2013 2:01:24 PM

Liberty1st --

"Probably some fag in the penal system (ouch that word again) wanted to watch guys beat off."

I tremble to think what would happen if a conservative like federalist, Adamakis or Kent used "fag" on this forum, even in jest. If, however, a liberal or a libertarian uses it, NO PROBLEM.

Doublestandarditis, call your office.

Posted by: Bill Otis | Oct 4, 2013 4:50:35 PM

The more reliable and scientific measure of sexual arousal, today, both in males and in females, is thermography, measuring the temperature of the genitals, reflecting blood flow.

I know that Daubert standards apply to the criminal trial. No one has answered the question as to whether it applies to sentencing decisions, initial and revocation of parole or probation. I am handing another tactic to the defense. Do they bother trying it? I want some fairness credit for these defense innovations.

My aim is accuracy, and not the support of one side or another.

Posted by: Supremacy Claus | Oct 5, 2013 1:54:29 AM

Besides being intrusive, the problem is men have various degrees of erections through other stimuli.

I would be very concerned with this test if I had to take it. How would this work on a "grower," for example?

Posted by: oncefallendotcom | Oct 5, 2013 10:53:22 AM

I feel the existence of a sex offender registry is by it's nature in total violation of every ethical meaning of due process. It violates not only constitutional principles but that of many religious principles by which our country was founded. Punitive measures are tacked on under the sex offender registry ex post facto at the whim of any politician. Don't be mislead that it's for protecting the children. This is evil and it is wrong.

I feel no one should be on a registry unless they are on probation or parole. Why? If someone makes it through probation/parole and REASONABLE therapy and is deemed okay enough to be out in society then a registry should NOT be required no matter the crime of conviction. If someone is so bad they have to be on a registry then they shouldn't be out amongst us. TRUTH

Posted by: Robert Curtis | Oct 5, 2013 1:48:18 PM

Robert Curtis:

After having served their sentence and any/all post incarceration requirements, nobody should be listed on any kind of public shaming list. Our lawmakers (I find the term hard to swallow) needed a scapegoat to draw attention away from their imbecilic ways. Foley, Sensenbrenner, Clinton et, al (and John Walsh and Mark Lunsford) wanted to demonstrate to the public that they are "not like other men" and hence created an unconstitutional list which has been upheld by the majority of 9 monkeys in black pajamas. That any person on this list can be sent to prison for:

- incomplete paperwork
- living too close to a school, park, day care center or other nebulous place
where children may gather
- seasonally decorating their house
- not providing authorities with sufficient notice of their intent to travel
- accessing a social network (whatever that is)
- not paying an annual fee (fine)
- etc.

The SO registry is a fool's playground that demonstrates we are not so far removed from the nazis as we deceive ourselves to believe.

(OMG, I violated Godwin's Law)

Posted by: albeed | Oct 5, 2013 2:40:50 PM

Do you all not believe that the perp who invented this procedure and the ones that want to practice it now, are perps who want to watch some guy beat off?
This is not just a matter of liberty. What comes first is the notion of privacy on some level when one is incarcerated. Here they want him to come first, maybe in their fist, and then maybe accord him some privacy. No pun intended.

Posted by: Liberty1st | Oct 5, 2013 11:18:32 PM

Oh, I see that someone objected to my describing the perp who wants to watch the inmate jerk off as a faggot. That is a wrong term for the perp. Friggin deviates like that deserve some more onerous description.

Posted by: Liberty1st | Oct 5, 2013 11:21:13 PM

What is Godwin's Law?

Posted by: Liberty1st | Oct 5, 2013 11:22:45 PM

Godwin's law is the "supposition" that the first person to invoke similarities to the nazis loses the argument.

Posted by: albeed | Oct 6, 2013 6:06:20 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB