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October 4, 2013
  United States v. McLaurin - Second Circuit
Case Name: United States v. McLaurin - Second Circuit

Headline: Second Circuit Strikes Down Parole Condition of Penile Plethysmography Testing

Area of Law: Criminal

Issue(s) Presented: Whether, as applied to a particular defendant, penile plethysmography testing was unreasonably intrusive and unrelated to the permissible goals of sentencing.

Brief Summary: David McLaurin is a convicted sex offender and thus required by federal law to register any changes of address in accordance with the Sex Offender Registration and Notification Act (SORNA). In 2011, McLaurin moved from Alabama to Vermont, and although he informed the Alabama authorities of his move, he failed to file the requisite paperwork with the Vermont registry. McLaurin was subsequently arrested for violating SORNA and pled guilty. McLaurin received 15 months in prison, and five years of supervised release, including a sex offender treatment program that might involve "penile plethysmography," as directed by the parole officer. Penile plethysmography is a procedure that involves placing a pressure-sensitive device around a man's penis, presenting him with sexual images, and evaluating his level of sexual attraction by measuring changes in his erectile responses. The Second Circuit struck down this requirement, holding 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," particularly given that the condition had been imposed only in connection with the defendant's conviction for failing to complete paperwork.

To read the full opinion please visit http://www.ca2.uscourts.gov/de...9f0440fc792/1/hilite/

Extended Summary: The federal Sex Offender Registration and Notification Act (SORNA) requires sex offenders to "register, and keep the registration current, in each jurisdiction" that they live in. In 2001, David McLaurin was convicted of producing child pornography after he took photographs of his thirteen year old daughter with her breasts exposed. His daughter informed authorities that she had requested the photo shoot to help her modeling career. McLaurin, an Alabama resident, pled guilty to one count of producing child pornography in violation of Alabama law and was sentenced to ten years' imprisonment; most of his sentence was suspended.

Ten years later, in 2011, McLaurin moved to Putney, Vermont. Before his move, he informed the Alabama authorities of his new address in Vermont. Shortly thereafter, Vermont authorities informed McLaurin how to fill out the paper work for the sex offender registry, but he never filled it out. Later in 2011 McLaurin lost his job, and returned to Alabama. McLaurin was charged in Vermont for violating SORNA, and, in October 2011, was arrested in Alabama and returned to Vermont. McLaurin pled guilty and was sentenced in the United States District Court for the District of Vermont to fifteen months' imprisonment and five years of supervised release. While the district court recognized that McLaurin was "unlikely to reoffend again," and that he disclosed his whereabouts (but simply failed to file the required paperwork), McLaurin was still sentenced to fifteen months in prison and five years of supervised release.

The probation office recommended, as one of the conditions of supervised release, having McLaurin "participate in an approved program of sex offender evaluation and treatment, which may include . . . plethysmograph examinations, as directed by the probation officer." Penile plethysmography is a procedure that involves placing a pressure-sensitive device around a man's penis, presenting him with sexual images, and evaluating his level of sexual attraction by measuring changes in his erectile responses. McLaurin objected to this condition, but the district court imposed it anyway, characterizing it as standard.

McLaurin appealed, arguing that the condition was "unnecessary, invasive, and unrelated to the sentencing factors specified in 18 U.S.C. ยง 3553(a) and therefore impermissible as a discretionary condition of supervised release." The Second Circuit agreed. The court explained that the penile plethysmography condition was such a serious invasion of liberty that it could only be justified if narrowly tailored to serve a compelling government interest. In deciding whether this standard was satisfied, the Second Circuit applied a two-part test, looking both at whether the sentencing goal to which the condition related was reasonable and at whether the condition represented "a greater deprivation of liberty than is necessary to achieve that goal."

The court applied this standard to each of the government's four asserted goals for the condition: the need to provide the defendant with correctional treatment; the protection of the public; deterrence; the need to provide the defendant with needed medical care or other correctional treatment in the most effective manner, and the nature and circumstances of the offense and the history and characteristics of the defendant. It found them all lacking. As to correctional treatment, the court noted that the government "made no showing to the district court that plethysmography is reliable or therapeutically beneficial." As to protection of the public, the court contrasted the plethysmography requirement with other conditions that are "reasonably calculated to protect the public," such as restrictions on where sex offenders may live and on whom and what they may access. "We see no reasonable connection between fluctuating penis size and public protection," the court observed. On deterrence, the court commented that "it [is] odd that, to deter a person from committing sexual crimes, the Government would use a procedure designed to arouse and excite a person with depictions of sexual conduct closely related to the sexual crime of conviction." Finally, looking into the nature and circumstances of the offense and the history and characteristics of the defendant, the court noted that McLaurin's crime was failing to file paperwork, and that ten years had passed between the underlying sexual offense and the failure to register as a sex offender.

The court thus vacated the portion of McLaurin's release regarding penile plethysmography, holding that "[w]e fail to see any reasonable connection between this defendant, his conviction more than a decade ago, his failure to fill out paperwork, and the government-mandated measurement of his penis."

Panel: Circuit Judges Guido Calabresi, Jose A. Cabranes, and Barrington D. Parker

Argument: 06/18/2013

Date of Issued Opinion: 10/03/2013

Docket Number: 12-3514-cr

Decided: Vacated and Remanded to district court.

Case Alert Author: Sophia Sofferman

Counsel: Steven L. Barth, Michael L. Desautels (on the brief) Federal Public Defenders, Burlington, VT, for Plaintiff - Appellant, William B. Darrow and Gregory L. Waples (on the brief ), Tristram J. Coffin, United States Attorney for the District of Vermont, for Defendant - Appellee

Author of Opinion: Circuit Judges Calabresi and B.D. Parker (co-authors)

Case Alert Circuit Supervisor: Emily Gold Waldman

    Posted By: Emily Waldman @ 10/04/2013 09:07 AM     2nd Circuit  

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