Sunday, June 25, 2006

Case o' The Week: Weber, Penile Plethysmograph Condition of Supervised Release

No summer slacking for Judge Berzon and her clerks: they deliver yet another great decision in United States v. Weber, __ F.3d __, 06 Cal. Daily Op. Serv. 66831 (9th Cir. June 20, 2006), decision available here. In Weber, the Ninth requires heightened showings and justifications for penile plethysmograph (left) testing as a condition of supervised release.

Players: CD Cal. AFPD Jonathon Libby with an important win; another pearl in the (thankfully prolific) Berzon line of authority.

Facts: Weber was convicted for having child porn. 06 Cal. Daily Opinion Serv. at 6802. At sentencing, the P.O. recommended that Weber undergo sex offender treatment on supervised release, and that he submit to penile plethysmograph testing. Id. at 6803. A penile plethysmograph is a pressure-sensitive device placed around a man’s penis, which measures minute changes in erectile responses when he is presented with sexually stimulating images. Id. at 6801. The subject is first instructed to become fully-aroused, either via self-stimulation or presentation of “warm-up stimuli,” to establish a baseline against which arousal is measured. Id. at 6805. The P.O. gave some rote, boilerplate justification for this proposed condition: the district court (Hon. Dean Pregerson) imposed the condition over defense objection, with no real analysis, and with the promise that the defendant could try to contest it later if he liked. Id. at 6803-04.

Issue(s): “We address the procedures that must be followed before district court may impose such a requirement on a criminal defendant.” Id. at 6802.

Held: We conclude that, just as the particularly significant liberty interest at stake in Williams meant that a ‘thorough inquiry is required’ before a district court may impose forced medication as a condition of supervised release, including ‘on-the-record medically-grounded findings,’ Williams, . . . so the particularly significant liberty interest in being free from plethysmograph testing requires a thorough, on-the-record inquiry into whether the degree of intrusion caused by such testing is reasonably necessary ‘to accomplish one or more of the factors listed in § 3583(d)(1)’ and ‘involves no greater deprivation of liberty than is reasonably necessary,’ given the available alternatives.” (internal citations omitted).

Of Note: The buzz of the decision is its skepticism for the penile plethysmograph. There are, however, several important holdings in the case – a couple of which make new Ninth law. For example, Berzon now makes the burden clear: “[W]hen the government seeks to restrict a defendant’s liberty through a term of supervised release, it shoulders the burden of proving that a particular condition of supervised release involves no greater deprivation of liberty than is reasonably necessary to serve the goals of supervised release.” Id. at 6810. Here’s another: “We will not generally require a district court to articulate the reasons behind imposing a certain condition. If, however, the condition implicates a particularly significant liberty interest of the defendant, then the district court must support its decision on the record with record evidence that the condition of supervised release sought to be imposed is necessary to accomplish one or more of the factors listed in § 3583(d)(1) and involves no greater deprivation of liberty than is reasonably necessary.” Id. at 6813.

Of late, this site has admittedly become the "Berzon blog," but a trend in her decisions nonetheless deserves comment. Judge Berzon’s criminal opinions are notable for identifying unclear, ambiguous and confusing aspects of the law and having the courage to clean these messes up. In Weber, she clarifies the burden of proof for supervised release conditions with a sharp new rule, and does the same for the showings required for supervised release conditions that impact a defendant's liberty interest. In Staten, she takes time to clarify the Restrepo line for sentencing (though she admittedly dodges a standard of review quagmire, see note 3). This is particularly notable because criminal law is not Berzon’s comfort zone: she comes from a background in labor law.

This helps. Even though everyone had assumed that the government bears the burden to secure conditions of supervised release, it helps all players in the system to have rules identified and articulated in a clear way. Maybe that’s an advantage of having a labor lawyer plunge into criminal law: Berzon has little patience for murky areas and seems eager to clean them up.

How to Use: NOTE: Weber specifically does not bar the use of penile plethysmographs. Id. at 6823. Instead, this condition of supervised release requires a thorough showing and on-the-record reasoning by the district court. Therefore, in sex cases come to sentencing armed with literature (and experts) attacking the procedure, suggestions for alternative treatment, and emphasize why your client is not well-suited (e.g., he’s a child porn possessor, but has had no sexual contacts or assaults). See id. at 6824 & n.16.

For Further Reading: Concurring Judge Noonan would go beyond Berzon’s “excellent opinion” and would “hold the Orwellian procedure at issue to be always a violation of the personal dignity of which prisoners are not deprived.” Id. at 6830. “[A] prisoner should not be compelled to stimulate himself sexually in order for the government to get a sense of his current proclivities. There is a line at which the government must stop. Penile plethysmograph testing crosses it.” Id. at 6831.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at



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