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March 4, 2015

First Circuit creates hard and firm standards before allowing sex offender penile plethysmograph testing

Long-time readers likely can recall the occasional post throughout the years setting out some appellate jurisprudence as to when and how a court may rely upon or order sex offenders to be subject to penile plethysmograph testing.  The First Circuit has added to this jurisprudence today in via a lengthy panel ruling in US v. Medina, No. 13-1936 (1st Cir. March 4, 2015) (available here), which starts and ends this way:

Moisés Medina failed to register as a sex offender when he moved to Puerto Rico in May of 2012, even though he had been convicted of a state sex offense four years earlier. As a result, Medina was arrested for violating the Sex Offender Notification and Registration Act, also known as SORNA, 18 U.S.C. § 2250. He then pled guilty and was sentenced to a thirty-month prison term, to be followed by a twenty-year term of supervised release.

The supervised release portion of the sentence included various conditions that Medina must follow or face returning to prison. Medina now challenges two of those conditions as well the length of the supervised release term. One of the two conditions restricts Medina from accessing or possessing a wide range of sexually stimulating material. The other requires Medina to submit to penile plethysmograph testing -- a particularly intrusive procedure -- if the sex offender treatment program in which he must participate as a condition of his supervised release chooses to use such testing.

We hold that the District Court erred in setting the length of the supervised release term. We further hold that the District Court inadequately justified the imposition of the supervised release conditions that Medina challenges.  We therefore vacate Medina's supervised release sentence term and the conditions challenged on this appeal, and remand for re-sentencing....

A district court has significant discretion in setting a term of supervised release. A district court also has significant discretion to craft special supervised release conditions. But a district court's exercise of its discretion must still accord with the statutory framework governing supervised release.

Here, we conclude that the District Court improperly determined the relevant guidelines range in setting the term of supervised release; imposed a blanket pornography ban without explanation and contrary to directly applicable precedent; and then imposed an extraordinarily invasive supervised release condition without considering the condition's efficacy in achieving the statutory purposes of such conditions, given both the particular defendant whose liberty was at stake and the evident concerns he directly raised about the appropriateness and reliability of the condition to which he was being required to submit. Although we have been deferential in reviewing district courts crafting of special conditions of supervised release, Congress and our precedent required more of the district court in this instance.  We thus vacate the supervised release sentence term, as well as the conditions challenged on this appeal, and remand the case for resentencing.

Some related prior posts:

P.S.: I am truly sorry I could not resist using a juvenile and sophomoric double-entendre in the title of this post.  It has been a long day.

March 4, 2015 at 05:12 PM | Permalink


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Imagine America without Appellate courts...

Nice double entendre by the way.

Posted by: New Reader | Mar 5, 2015 1:46:19 AM

Imprisoned sex offenders should rise up and resist such intrusive measures as plethysmograph testing. This is tantamount to the Nazis and Stalinists using prisoners as non-consenting guinea pigs in depraved experiments.

Posted by: william r. delzell | Mar 5, 2015 9:16:14 AM

Doug: "Hard and firm standards" involving the penises of sex offenders? That is some dry sarcasm! LOL.

Posted by: Jim Gormley | Mar 5, 2015 9:39:21 AM

Pornography has uncertain net effect. Its legalization results in an immediate effect of dropping the sex victimization rate by 40%, true of adult and of child porn in historical natural experiments.

On the other hand, one used to ask child and adolescent sex offenders where they learned to do that, victimize other children. Most of them would say, it was done to them, and they learned from the experience. Now, the overwhelming majority say, they learned that from openly available porn sites, many times watched on a school computer, not at home.


Plethysmography was intended as a therapeutic tool, to start a therapeutic discussion of the real sex interest of an offender in denial. It has not been validated as a tool to measure culpability, nor to be used the way it in this article.

Prof. Berman is a funny guy.

However, any use of this measurement in a tribunal of any kind should be met with a demand for a Daubert or Frye hearing. Yes, it is the most reliable measurement. But it has a 32% accuracy, with a preponderance of evidence standard set at 51%, a beyond a reasonable doubt at around 80%, and clear and convincing at at around 67% (possibly applicable in revocation of parole hearings). So the test may have half the accuracy of the legal requirement.

I also wonder why the defense lawyers are not making that claim for relief, available on the internet after research for literally less than 30 seconds.

Posted by: Supremacy Claus | Mar 5, 2015 10:45:24 AM

Double entendre here = a boner groaner.

Posted by: lawyer | Mar 5, 2015 11:44:33 AM

Note that his crime was "not registering" which the 20 year sentence should have been unconstitutional, I fail to see how registration is not like probation and parole in many aspects, three SC justices agreed in doe v. smith.

Now of he beat up someone, got drunk and ran over someone, shot someone, or probably did another sex assault crime, his sentence may in many cases be less.

Posted by: Alex | Mar 5, 2015 1:55:21 PM

If a person is convicted of "failure to register", it is not appropriate or just to sentence that person to anything that has anything to do with "sex offender". It is completely unjustified to sentence the person to "sex offender" therapy. That is BS. Violating a Registration rule has nothing to do with sexual offending. They are not related in any way.

Remember the huge lie that Registration is just a "civil regulation"? It is not a criminal regulation. That is the lie that is used to say that Registration is not punishment. Violating a Registration requirement is like violating a zoning ordinance.

It would be great if anyone convicted of FTR murdered anyone responsible for the conviction. Starting with any judges.

Posted by: FRegistryTerrorists | Mar 5, 2015 6:43:34 PM

Only the government is "permitted" to be sexually perverse and dysfunctional by allowing the unjustified use of penile plethysmograph testing, photographing a 17 year olds erect member and SORNA (like filling out a Price Club Application - except you go to prison for 20 years when you do it incorrectly, and it is always a moving target).

Yep - we have clear and convincing evidence that only the government is permitted to be perverse, both in SO laws and in actual deeds (as allowed by our illustrious SCOTUS). What a Joke and what a bunch of ignorant and self - important for life jokers!

Show me where I am wrong in these observations. The issue is, no one really cares about injustices (legal and just are different terms, I know) within the system so they continue to fester and grow. Then, what is the good of arguing for justice. The phrase should be removed from the Pledge of Allegiance and changed to, with liberty and legality for all. Goebbels would be so proud.

Posted by: albeed | Mar 5, 2015 7:55:45 PM

I am posting this primarily with the hope of obtaining effective legal assistance, but also to educate those within the legal system about the true face of one of those accused of possession/distribution of child pornography. I am one of the unfortunate so called deviants currently facing a future not worth living. A few months ago police served me with a search warrant claiming that I had distributed and possessed 13 files containing child pornography discovered by someone in an Ohio task force devoted to policing CP on the internet. Apparently my IP address was identified by the investigator via a P2P program I had been using. Before going further let me just say that I am a good person, help people that need it, have no criminal record, never physically hurt anyone, never touched a child NOR WANTED TO NOR WILL, and most friends would describe me as exceedingly honest to a fault. Now....in response to the charges of possession I am 100% guilty. Technically, the same can be said for the claims of distribution, although to my surprise I was not aware that by default the program I used made files on my computer available for sharing to complete strangers. Perhaps most surprising was the notion that by downloading aforementioned content I was breaking the law. Like most of the uninformed idiots caught in this crazy web I presumed that it was the furnishing, buying and selling with currency, and the physical act of molesting a minor that were illegal. Having never tangled with the LAW I had no hesitation in talking with the officers with complete honesty. Despite learning that possessing CP was illegal I didn't hesitate in divulging to the officers that I had indeed downloaded the content in question for personal reasons that had nothing to do with sexual gratification. This is a summary of what I told them: Since the age of 30 I had fallen into a severe, unexplainable depression which resulted in losing a successful career, fiancé, close friends and family. I sought help via psychologists and psychiatrists resulting in little to no positive outcome. A couple of years later I randomly (by random I mean had no intention to find or view) found an image online depicting a child being sexually abused by an adult which strangely brought about emotions of personal familiarity. What followed in the coming days was an avalanche of memories from my own childhood that were far more disturbing than that depicted on this disgusting image. I was able to recall multiple incidents involving 2 individuals that had sexually assaulted/raped me over a long period of time starting from roughly the age of 7 to 11. Following these revelations I once again I sought professional help from a medical professional and explained these new revelations in detail. Despite her best intentions the shrink really didn't offer much in the way of help except for a prescription for an antidepressant. I even called my best friend hoping for support of some kind only to ruin said friendship with unbearable awkwardness. I even told my Dad (poor guy) who was too shocked/angry to even comment on the matter. I was left without a way to confront this matter but was desperate to do so thinking that I might reclaim a productive role within society. What I did next is hard for others to understand, but I'll try nonetheless. I began to search for pornography involving adults and children. Specifically, I was seeking content that reminded me of my own history of abuse much like the first photograph I discussed earlier had. I was able to find said content with a simple search followed by a click of the mouse. This brings me to the most misunderstood and perhaps complex issue involving CP laws and my circumstance...the intent under which I downloaded the files. I wasn't sexually aroused nor did I pleasure myself in viewing such files. On top of that I didn't know that what I was doing was illegal. Had I known, I never would have sought out such content. I am of sound mind, considered intelligent by peers (scored in 99% for SAT's) and yet I was unaware of the mere existence of these laws let alone the extreme penalties involved which is evidenced by my lack of effort to even hide the content or my activities. As of now I am in the waiting stages of finding out what I am charged with while the computer forensics teams investigate (thereby breaking more CP laws by consuming/viewing said illegal content). After I researched what happens to those facing similar charges I panicked and fled the country. I am convinced that there is no possibility for fair treatment nor trial in the face of these charges. The basic principals that my Law 0100 class taught me in college are absent and change is needed. I have no idea how this plays out concerning extradition etc...what I do know is that the only way I return to the U.S. is if I have a reasonable chance to beat these charges. I am not a sexual predator nor will I ever be and I refuse to cower to a plea deal. Furthermore, I refuse to lie claiming that some virus or wireless bandit user is at fault and that "I didn't know". If there is an attorney out there that you know of who isn't just interested in collecting fees (I am capable of paying mind you) and possesses the intelligence and strength required to institute systematic change please let me know (the charges are in VA BTW). And yes, I know I have better odds of summoning Batman tonight than finding such an individual. Thanks for the help..

Posted by: pleasehelp | Jun 29, 2015 2:49:27 AM

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