Criminal Law - Sentencing Law - Second Circuit Holds Penile Plethysmography Condition Acceptable Only If Defendant-Specific and Narrowly Tailored to Compelling Government Interest

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Convicted sex offenders face uniquely onerous postincarceration regulations. (1) Federal courts contribute to this regime by imposing special sex-offender supervised release conditions, (2) which can include physiological tests such as penile plethysmography (PPG). (3) A penile plethysmograph is a "pressure-sensitive device" that is placed around a man's penis before he is shown "an array of sexually stimulating images." (4) By "measuring minute changes in his erectile responses," (5) the test makes it possible to ascertain his sexual attraction to various stimuli. (6) Recently, in United States v. McLaurin, (7) the Second Circuit held that because PPG is so invasive that it implicates "a fundamental liberty interest," (8) it is reasonably related to the statutory sentencing factors only if "narrowly tailored to serve a compelling government interest." (9) The court's dignity-focused scrutiny of PPG suggests that the degrading nature of other supervised release conditions could similarly inspire heightened review of those conditions.

In 2001, David McLaurin, an Alabama resident, pleaded guilty to one state law count of producing child pornography. (10) As part of his plea, McLaurin admitted that he took photographs of his topless thirteen-year-old daughter, (11) but disputed that he uploaded them to the Internet. (12) His daughter claimed "she had requested the photo shoot" to further her "modeling career." (13) McLaurin received a ten-year prison sentence, "most of it suspended." (14) As a result of this conviction, he became subject to both state sex-offender registration laws and the federal Sex Offender Registration and Notification Act (15) (SORNA), which "required McLaurin to 'register, and keep the registration current, in each jurisdiction' where he lived." (16)

In 2008, McLaurin pleaded guilty to two violations of Alabama's registration law. (17) Those charges stemmed from his failure to inform authorities about his move "from one Alabama county to another." (18) In June 2011, McLaurin relocated to Vermont for a job. (19) He alerted Alabama registry authorities of his new address; subsequently, Vermont authorities "instructed him to fill out paperwork" for their registry. (20) However, within weeks of his arrival, McLaurin lost the job that had drawn him to Vermont. (21) He left the state without submitting the required documents--or informing Vermont officials about his departure. (22) McLaurin eventually returned to Alabama. (23) In the fall of 2011, he was indicted, arrested in Alabama, and removed to Vermont for one count of failure to register (24) under SORNA. (25) He pleaded guilty in the United States District Court for the District of Vermont the following April. (26)

Despite exceptional facts--the lower court found the case "unique" because McLaurin "had not attempted to hide his whereabouts" and it did not consider him a recidivism risk--the district judge "sentenced him to fifteen months in prison and five years of supervised release." (27) Over McLaurin's objections, the court imposed a supervised release condition requiring him to participate in sex-offender treatment that could include PPG. (28) McLaurin appealed, arguing that PPG is intrusive and unrelated to the statutory factors judges must consider when ordering discretionary conditions. (29)

The Second Circuit vacated the condition and remanded to the district court. (30) Writing jointly for the panel, Judge Calabresi and Judge Parker (31) held that PPG was "unjustified," "not reasonably related to the statutory goals of sentencing, and violat[ive of] McLaurin's right to substantive due process." (32) The court acknowledged trial courts' "wide latitude" to issue supervised release conditions, which are reviewed only for abuse of discretion. …


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