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July 26, 2016

District Court explains reasons for disallowing penile plethysmograph and visual response testing for child pornography offender

A helpful reader altered me to a notable sentencing opinion handed down last week by District Judge John Kane in US v. Cheever, No. 15-cr-00031-JLK (D Colo July 18, 2016) (available here). The first part of the opinion provides a thoughtful account of the sentencing judge's accounting of application of the 3553(a) sentencing factors to defendant Shawn Cheever after his plea to a single count of possession of child pornography, but an "addendum" to the opinion is what makes it truly blog-worthy. In the addendum, Judge Kane explains why he is refusing to "authorize a treatment provider to require polygraph, plethysmograph (PPG) and visual reaction time measurements." His lengthy explanation merits reading in full, and here are a few of many interesting passages therein:

Proponents of using the penile plethysmograph correlate arousal data to deviant sexual behavior by assuming that individuals with a history of sexual offenses who respond to illicit sexual stimuli are likely to react in furtherance of their responses. There is no scientifically accepted data presented to justify this assumption, nor does it have any logical basis. Rather, just as with the polygraph (lie detector) machine, it is used as a tool of coercion by both law enforcement personnel and treatment providers.  The plethysmograph is used to obtain inculpatory admissions, the reliability of which is at best equivocal. The patient or suspect may believe he can manipulate the results — and with a modicum of sophistication or psychopathy, he may well be able to do so.  Or, the suspect or patient may succumb to the threat, overt or implied, that his refusal to submit to testing has negative implications that can result in further incarceration, withholding of privileges or being held back in the treatment or incarceration processes and therefore lie about his interests or past behavior.  Moreover, it is not fanciful speculation that false test results can be conveyed to the individual in order to reduce resistance and gain inculpatory admissions....

[A]dministering a penile plethysmograph test necessitates the person administering the test to be engaged in the possession, use and distribution of child pornography. There is no exception in the statute to exclude therapeutic purposes or intent from culpability. The violation is per se. It is paradoxical that the government would mandate individuals subject to supervised release to join an administrator of the test in conduct so vile that it landed him in prison in the first place. The statute criminalizing the possession, use and distribution of child pornography has no exceptions. Both the administrator and the subject are violating the statute.  Moreover, the well-established continuing damage inflicted on the child victims portrayed in the pornography derives from the fact that they are seen repeatedly by viewers and it makes not one shred of difference to the victims that the viewer is a pervert or a therapist....

Prohibiting courts, probation and parole officers and treatment facilitators and providers from using devices that fail tests of scientific validity is necessary, but a further comment about the line Judge Noonan describes so eloquently will perhaps provide a resolution to the underlying debility.  Judge Noonan evokes the task of Orwell's "Thought Police" — and using what is "discovered" as a basis for further punishment or superficial rehabilitation. Justice Cardozo in Palko v. Connecticut, 302 U.S. 319, 326-27 (1937) stated: "freedom of thought. . . is the matrix, the indispensable condition, of nearly every other form of freedom.  With rare aberrations a pervasive recognition of that truth can be traced in our history, political and legal."...

The established traditions of our law embrace the ancient common law principle that liberty should not be impinged or threatened for what a person thinks, but only for what a person does. The maxim cogitationis poenam nemo patitur (no one is punishable solely for his thoughts) was written long before the invention of the plethysmograph or other machines intended to probe the recesses of the mind....

Penile plethysmograph tests rely on the heavy assumption that stimuli arousal is strongly related to the potential for recidivism. Inferences by the courts about a person's potential for sexual offense based on his innermost sexual desires fail to acknowledge that arousal data is not an ineluctable precursor to deviant behavior.  This observation, a fortiori, illustrates the dangerous conflation of thought with behavior. Before administering the penile plethysmograph without questioning its obvious scientific shortcomings (not to mention its ethical implications), it is crucial that the courts, probation and parole officers and PPG evaluators recognize 1) the power of refrain; and 2) the difference between thought and action.  The presuppositionless assumption is that any "arousal level" occasioned by the exposure to child pornography stimuli is deviant because convicted sex offenders are unable to resist or subdue their impulses.  Urges, however, are not always overwhelming.  Otherwise, there would be no opportunity for moral decisions or even so-called enlightened self-interest decisions to be made in the crucible of an experience.

UPDATE:  Another helpful reader altered me that there is now this Denver Post article about the opinion in Cheever, which is headlined "Judge criticizes federal sentencing guidelines in pornography case: Kane said he would have given sex offender lesser sentence if permitted by law."

July 26, 2016 at 06:17 PM | Permalink


A courageous opinion but my understanding is that pornography is not used in these tests. Th pictures are of girls in swimsuits, etc.

Posted by: Steve | Jul 26, 2016 8:25:22 PM

Yeah, I bet those girls didn't consent to their photos being used for this purpose either. ^

Posted by: Rory Fleming | Jul 26, 2016 8:50:02 PM

I would like to point out another problem that goes to the heart of one of the revisions the sentencing commission has recommended. Here is what the Denver Post writes, "The FBI examined his computer and found 172 child pornography images including images portraying sadistic or masochistic conduct and other violent depictions,"

How many non-lawyers are going to read that sentence and understand that age--and age alone--is enough to meet the criteria for sadistic or masochistic conduct? Zero.

Here is the exact language from the amendment:

The amendment amends §2G2.1(b)(4) to provide for a 4-level increase “if the offense involved material that portrays (A) sadistic or masochistic conduct or other depictions of violence; or (B) an infant or toddler,”

There are already significant problems with "crimes of violence" being out of tune with out ordinary people think of as violence and this amendment is only going to make it worse. The one thing it will do, however, is allow the press to continue to smear downloaders as violent and cruel even if there is no actual violence in the photos.

Posted by: Daniel | Jul 26, 2016 10:11:33 PM

My district hasn't allowed the plethysmograph for over 15 years. I was part of making that happen. Abel testing (visual response) is less invasive, but also rarely clinically helpful.

What's galling is that even though the sentencing commission has admitted that the CP guideline is broken, the only substantive changes they made are a wash: no enhancement for disribution when done via default setting P2P software, but now an enhancement for certain types of images that previously did not garner one (the amendment that Daniel noted above).

The sentencing commision are a bunch of egomaniacs with a bunker mentality. They blame the Courts for making guideline application more complicated, instead of taking a hard look at how they write the guidelines in the first place. Luckily, I work in a district where he judges are comfortable varying from the guidelines and I recommend they do so quite frequently.

Posted by: USPO | Jul 26, 2016 11:55:32 PM

Some of the pictures used for plethysmography were much worse than some of the CP downloaded according to someone I know who was forced to submit to that vile testing. How is it wrong to view CP but then OK for a tester to show you worse CP?
Makes no sense.

Posted by: kat | Jul 27, 2016 11:09:34 AM

USPO, kudos to you for pushing for rationality. Sadly, it isn't common in all districts.

Posted by: jsnsdf | Jul 27, 2016 1:18:27 PM

> Urges, however, are not always overwhelming. Otherwise, there would be no opportunity for moral decisions or even so-called enlightened self-interest decisions to be made in the crucible of an experience.

This seems like an underrated point and Im glad its being made here. You can also see Seto for more elaboration on this.

Posted by: sexy | Jul 27, 2016 1:55:33 PM

Yes, kudos to you USPO for halting some of the insanity surrounding CP sentencing. While the Guidelines are, for lack of a better term, goofy as hell in this area, the primary responsibility for CP sentencing lies with Congress. The idiot guidelines are poopy icing on a feces cake from Congress.

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