1 1 2

- 3514

- cr United States v. McLaurin 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 August Term, 2012 5 6 (Argued: June 18 , 2013 Decided: October 3
, 2013) 7 8 Docket No. 12

- 3514

- cr 9 10 11 UNITED STATES OF AMERICA
, 12 13 Appellee
, 14 15

– v.

– 16 17 DAVID C. MCLAURIN
, 18 19 Appellant

. 20 21 22 Before: CALABRESI, CABRANES , and B.D. PARKER
, Circuit Judges

. 23 24 David McLaurin appeals from an order of the United States District Court for the District 25 of Vermont imposing as a condition of supervised release a program of sex offender treatment 26 that may include penile plethysmography testing . McLaurin claims that the condition is 27 unreasonably intrusive and unrelated to the permissible goals of sentencing. We conclude that 28 penile plethysmography testing is unduly intrusive and bears insufficient relation to correctional 29 or medical treatment, the protection of the public, or deterrence of crime, and that the d istrict 30

c ourt ’s decision to i mpose this condition was an abuse of discretion . We therefore VACATE the 31 challenged condition and REMAND to the d istrict c ourt for further proceedings consistent with 32 this opinion

. 33 34 W ILLIAM B. D ARROW ( Gregory L. Waples
, on the brief ), of 35 counsel for Trist r am J. Coffin, United States Attorney for 36 the District of Vermont
, for Appellee

. 37 38 S TEVEN L. B ARTH ( Michael L. Desautels
, on the brief ), 39 Federal Public Defenders
, Burlington, VT
, for Appellant

. 40 41 422

CALABRESI and B.D. PARKER 1

, Circuit Judge s : 1

David McLaurin
, a convicted sex offender, was required by federal law to register a ny 2
change in his address. He failed to do so and, following his guilty plea, was sentenced in the 3

United States District Court for the District of Vermont t o fifteen months ’ imprisonment and five 4
years of supervised release. As a condition of his release, McLaurin was required to “ participate 5
in an approved program of sex offender evaluation and treatment, which may include .

. . 6
plethysmograph examinations, as directed by th e probation officer.” Judgment, United States v. 7

McLaurin , No. 11 Cr. 113 (WKS), Dkt. No. 28 (D

. Vt. Aug. 22, 2012), J. App. 9. 8

This examination involves the use of a device know as a p lethysmograph which is 9

attached to the subject’s penis. In some situati ons, the subject apparently may be required, prior 10
to the start of the test, to masturbate so that the machine can be “properly” calibrated. The 11
subject is then required to view pornographic images or videos while the device monitors blood 12
flow to the peni s and measur es the extent of any erection that the subject has

. The size of the 13

erection is, we are told, of interest to government officials because it osten sibly correlates with 14

the extent to which the subject continues to be aroused by the pornographic images. 15

McLaurin objected to this requirement as unnecessary, invasive, and unrelated to the 16
sentencing factors specified in 18 U.S.C. § 3553(a) and therefor e im permissible as a 17
discretionary condition of supervised release

. See 18 U.S.C. § 3583(d)(1)

. The d istrict c ourt 18
nonetheless imposed the requirement without reference to the statutory goals of supervised 19
release or to any expected benefits to the public or to McL a urin. McLaurin now appeals. 20

1 This opinion i s co

- authored by two members of the three

- judge panel
, and Judge Cabranes joins the opinion in full.3

We hold that this extraordinarily invasive condition is un justified
, is not reasonably 1

related to th e statutory goals of sentencing
, and violates McLaurin’s right to substantive due 2

process. W e therefore vacate the condition

. 3

BACKGROUND 4

McLaurin , an Alabama resident, was accused in 2001 of taking photographs of his 5

thirteen

- year

- old daughter with her breasts exposed. His daughter reported to authorities that she 6
had requested the photo shoot to help in her modeling career. McLaurin pleaded guilty to one 7
count of producing child pornography in violation of Alabama law and was sentenced to ten 8
years’ imprisonment , most of it suspended

. In 2008 , he pleaded guilty to two counts of failing to 9
satisfy Alabama’s sex offender registration requirements, both apparently for the same conduct 10
of moving from one Alabama county to another and registering the move in neither. 11
The federal Sex Offender Registration and Notification Act (SORNA) required McLaurin 12

to “ register, and keep the registration current, in each jurisdic tion” where he lived. See 42 U.S.C. 13

§ 1691 3. In 2011, Mc Laurin obtained employment at the Putney Inn in Vermont , and he notified 14
Alabama authorities that he was moving to Vermont and informed them of his new address in 15

Putney

. Vermont authorities contacted McLaurin in Putney and instructed him to fill out 16
paperwork for the Vermont sex offender registry, but he failed to do so

. Later in 2011, he lost his 17
job in Vermont and returned to Alabama

. In September 2011, McLaurin was indicted in Vermont 18
for violating SORNA, and, in October 2011, was arrested in Alaba ma and returned to Vermont. 19
In April 2012, McLaurin pleaded guilty to one count of violating SORNA. At his 20
sentencing, t he district court noted that , in its experience, the case wa s unique among sex 21
offender registration cases because McLaurin had not attempted to hide his whereabouts but 22
merely failed to complete the required paperwork. Although t he di strict court found that 234

McLaurin was “unlikely to reoffend again
, ” it nevertheless sentenced him to fifteen months in 1
prison and five years of s upervised release

. As one of the conditions of supervised release, t he 2
probation office recommended that McLaurin participate in a program of sex offender treatment, 3

“ which may include

. . . plethysmograph examinations, as directed by the probation officer .” 4
Presentence Report Disclosure, J. A pp . 25. Characterizing the condition as “ standard
, ” t he 5
district court imposed it over McLaurin’s objection

. Sentencing Tr. at 34, J. App. 22. The judge 6
observed in a generalized way that plethysmographic testing requirements are “important 7
conditions in regard to SORNA cases and sex offender registration” and “are relevant to 8
diagnosis and evaluation in the future,” but otherwise made no findings

— and certainly no 9
specific findings

— about the efficacy of th is condition, or about why it was called for by the 10
statutory sentencing factors or by the Sentencing Guidelines. 11

P enile p lethysmograph y is a procedure that lasts two to three hours and “ involves placing 12

a pressur e

- sensitive device around a man’ s penis, p resenting him with an array of sexually 13
stimulating images, and determining his level of sexual attraction by measuring minute changes 14
in his erectile responses.” United States v. Weber , 451 F.3d 552, 554 , 563 (9th Cir. 2006) 15
(internal quotation marks omitted)

. The Government disputes whether, as others have described, 16
the test requires a subject to masturbate to establish a baseline for measurement. See id. at 571 17

(Noonan, J. , concurring) ; Appellee Supp. Letter , Dkt. No. 64

. The procedur e was “developed by 18
Czech psychiatrist Kurt Freund as a means to study sexual deviance,” and it was “at one time 19
used by the Czechoslovakian government to identify and ‘cure’ homosexuals.” Weber , 451 F.3d 205

at 562 (citing David M. Friedman, A Min d of Its Own: A Cultural History of the Penis 232 1

(2001)). 2 Whether the device was “successful” in this regard is not reflected in the record. 2

STANDARD OF REVIEW 3
“Generally, we review conditions of supervised release for abuse of discretion,” United 4

States v. Green , 618 F.3d 120, 122 (2d Cir. 2010), as “[a] district court retains wide latitude in 5
imposing conditions of supervised release,” United States v. Reeves , 591 F.3d 77, 80 (2d Cir. 2010) 6
(internal quotation marks omitted) . Nevertheless, “[w]hen a cha llenge to a condition of supervised 7
release presents an issue of law, we review the imposition of that condition de novo , bearing in mind 8
that any error of law necessarily constitutes an abuse of discretion.” United States v. MacMillen , 544 9

F.3d 71, 74

- 75 (2d Cir. 2008). Moreover, we will “carefully scrutinize unusual and severe 10

conditions.” United States v. Sofsky , 287 F.3d 122, 12 6 (2d Cir. 2002) (internal quotation marks 11

omitted). 12

DISCUSSION 13
A person, even if convicted of a crime, retains his humanity

. He also retains his right to 14

substantive due process, even if it is sharply diminished in many respects. S ee United States v. 15

Myers , 426 F.3d 117, 12 5

- 2 6 & n.8 (2d Cir. 2005)

. Substantive d ue process prohibits the 16
government from invading personal immuniti es that are “ implicit in the concept of ordered 17
liberty” and “ so rooted in the traditions and conscience of our people as to be ranked as 18

fundamental. ” Rochin v. California , 342 U.S. 165, 169, 172 (1952) (internal quotation marks 19

omitted) ; see also Snyder v. Massachusetts , 291 U.S. 97, 105 (1934); Palko v. Connecticut , 302 20

U.S. 319, 325 (1937)

. 21

2 The Government informs us that other district court judges in the District of Vermont have imposed plethysmography conditions in the past. D istrict court judges elsewhere in the Second Circuit have not recen tly imposed any such condition. See Appellee Supp. Letter , Dkt. No. 64

. The probation office in Vermont has ceased recommending the procedure. See id.6

As we have previously said of mental health “treatment” involving penile 1
plethysmography, “[w] e think there can be no serious doubt that the liberty interests implicated 2
here are of a high order. ” Bailey v. Pataki , 708 F.3d 391 , 402 (2d Cir. 2013) ; see also Weber
, 451 3

F.3d at 5 63 (holding that plethysmography “ implicates a particularly significant liberty 4

interest ”); Harrington v. Almy , 977 F.2d 37, 44 (1st Cir. 1992) (“ A reasonable finder of fact 5
could conclude that requiring the plethysmograph involves a sub stantive due process 6
violation.”). Th e importance of the liberty interests at stake is especially clear since, as the Ninth 7

Circuit has observed, “ [p] lethys mograph testing not only encompasses a physical intrusion but a 8
mental one, involving no t only a measure of the subject’ s genitalia but a probing of his innermost 9
thoughts as well.” Weber
, 451 F.3d at 562

- 63. 10
The condition of supervised release at issue is a sufficiently serious invasion of liberty 11

suc h that it could be justified only if it is narrowly tailored to serve a compelling government 12

interest

. Because t he Government has proffered no such justification, we agree with Judge 13

N oonan of the Ninth Circu it that, even when dealing with convicted felons, “[t] here is a line at 14
which the government must stop. Penile plethysmography testing crosses it. ” Weber , 451 F.3d at 15

571 ( Noonan, J. , concurring )

. 16

The Sentenci ng Guidelines (U.S.S.G.) permit sentencing judg es to impose conditions of 17
supervised release: 18
to the extent that such conditions (1) are reasonably related to (A) the nature and 19 circumstances of the offense and the history and characteristics of the defendant; 20 (B) the need for the sentence imposed to a fford adequate deterrence to criminal 21 conduct; (C) the need to protect the public from further crimes of the defendant; 22 and (D) the need to provide the defendant with needed .

. . medical care, or other 23 correctional treatment in the most effective manner; and (2) involve no greater 24 deprivation of liberty than is reasonably necessary for the purposes set forth above 25 and are consistent with any pertinent policy statements issued by the Sentencing 26 Commission. 277

U.S.S.G. 5D1.3(b) ; accord 18 U.S.C. § 3583(d)(2) ; id. § 3553(a)

. A sentencing court may 1
impose conditions of supervised release so long as they are “reasonably related to any one or 2
more of the specified factors

. ” United States v. Abrar , 58 F.3d 43, 46 (2d Cir. 1995)

. 3

W e have explained that “when a funda mental liberty interest is implicated by a 4
sentencing condition, we must first consider the sentencing goal to which the condition relates, 5

and whether the record establishes its reasonableness. We must then consider whether it 6
represents a greater depriva tion of liberty than is necessary to achieve that goal.” Myers , 4 26 7

F.3d at 126; see also Harrington
, 977 F.2d at 44 (holding that “ nonroutine manipulative 8
intrusions on bodily integrity will be subject to heightened scrutiny to determine, inter alia
, 9

whether there are less intrusive alternatives available ” ). Although the overarching inquiry is as to 10
reasonableness, where, as here, “the liberty interest at stake is fundamental, a deprivation of that 11
liberty is ‘reasonably necessary’ only if the deprivat ion is narrowly tailored to serve a co mpelling 12
government interest.” Myers , 426 F.3d at 125

- 26; accord United States v. Reeves , 591 F.3d 77, 13

82

- 83 (2d Cir. 2010). 14
Accordingly, we must determine whether plethysmography is reasonably related to the 15

statutor y purposes of sentencing as they relate to McLaurin , including “deterrence,” the 16
“protect[ion] [ of

] the public,” and the need “ to provide the defendant with needed

. . . medical 17

care[] or other correctional treatment in the most effective ma nner

. ” 18 U.S.C . § 3553(a); accord 18

id. § 3583(d)(2)

. If the condition is reasonably related to any of these goals, we must determine 19
whether p lethysmography is a “greater deprivation of liberty than is reasonably necessary” to 20

achieve a sentencing goal. Id. 218

A. The Need to Provide the Defendant with Correctional Treatment 1

T he Government first asserts that plethysmography is a useful form of correctional 2

treatment for sex offenders who have an unusually high recidivism rate. Th e record befor e us is
, 3

however, devoid of supp ort for this assertion. At sentencing, the district court concluded that 4
McLaurin was unlikely to reoffend. The G overnment is unable to say, except with vague 5
generalities, how the use of the device amounts to “ treatment , ” and is unable to point to any 6

exp ected, much less tangible
, benefits to McLaurin from the testing. In other words, the 7

G overnment has made no showing that this exceedingly intrusive procedure has any therapeutic 8

benefit, and none is apparent to us. T he Ninth Circuit has noted that “ the accuracy and reliability 9
of penile plethysmograph testing have been severely questioned. ” Weber , 451 F.3d at 564

. In 10
particular, “[a] predominant concern with plethysmograph testing is its susceptibility to 11
manipulation via faking. ” Id. at 564

. The Ninth C ircuit also noted criticism that penile 12
plethysmograph y lacks “uniform administration and scoring guidelines.” Id. at 565 (internal 13
quotation marks omitted)

. 14
But even assuming that the procedure is “reliable,” we fail to see how it would confer any 15

value as correctional treatment. To begin with, the procedure inflicts the obvious ly substantial 16

humiliation of having the size and rigidity of one ’ s penis measured and monitored by the 17
government under the threat of reincarceration for a failure to f ully cooperate

. And even if t he 18

machine could accurately monitor and record the extent or intensity of a convict’s prurient 19

interests ( a proposition about which w e have serious doubts), the goal of correctional treatment 20
during supervised release is proper ly directed at conduct
, not at daydreaming

. See Stanley v. 21

Georgia , 394 U.S. 557, 565 ( 1969) (“ Our whole constitutional heritage rebels at the thought of 229

giving government th e power to control men’ s minds.”); c f. Kansas v. Crane , 534 U.S. 407, 412 1

(2002)

. 2
Suffice it to say that in this case, the Government made no showing to the district court 3
that plethysmography is reliable or therapeutically beneficial, and the district court made no 4
findings on those points. Instead, the district court justified the imp osition of the 5
plethysmography condition by characterizing it as “ standard. ” Sentencing Tr. at 34, J. App. 22. 6
Before imposing a “standard” condition as intrusive and demeaning as this one, a district court 7
must, at a minimum, make findings, sufficiently i nformative and defendant

- specific for appellate 8
review, that the test is therapeutically beneficial, that its benefits substantially outweigh any costs 9
to the subject’s dignity, and that no less intrusive alternative exists. Moreover, in determining 10

whethe r penile plethysmography is narrowly tailored to serve a compelling government interest, 11

the district court must also make findings (also sufficiently informative and defendant

- specific 12
for appellate review) that the technique can be, and has been, assesse d for reliability and 13
efficacy , that it has been subject to peer review, and that it has been generally accepted in the 14
scientific community. See Daubert v. Merr e ll Dow Pharm., Inc. , 509 U.S. 579 (1993). 15

B. The Need to Protect the P ublic 16

The G overnment next argues that the test helps to “protect the public
, ” cit ing literature 17

suggest ing a relationship between failing penile plethysmography tests and recidivism. The 18

Government, however, can not point to any consensus on the reliability of plethysmographic data

. 19

And even if we were to consider the purported correlation between increasing penis size and 20

recidivism to be strong , the correlation would be irrelevant. T he testing could not help to protect 21
the public u nless the results were used to justify further detention or more res trictive conditions 22

of release

. But that could not occur because McLaurin had already received a fixed term of 2310

incarceration followed by a fixed term of supervised release , neither of which could be altered by 1

a poor test score

. 2

Our criminal laws are intended to punish a mental state only when it accompanies an 3

unlawful act. See Stanley , 394 U.S. at 565. But unacted

- upon prurient sexual thoughts, just like 4

“a defendant ’ s abstract beliefs, however obnoxious to most people, may not be t aken into 5
consideration by a sentencing judge

. ” Wisconsin v. Mitchell , 508 U.S. 476, 485

- 86 (1993) ( citing 6

Dawson v. Delaware , 503 U.S. 159 (1992) ) ; see also Lawrence v. Texas , 539 U.S. 558, 562 7

( 2003) (“Liberty presumes an autonomy of self that includes freedom of thought

. . . .”). 8

We see a clear distinction between penis measurement and other conditions of supervised 9

release which are reasonabl y calculated to protect the public . These would incl ude restrictions on 10

where sex offenders may live, their interactions with children, and their access to pornographic 11

material. But we see no reasonable connection between fluctuating penis si z e and public 12
protection

— certainly none strong enough to survive the careful scrutiny that we give to unusual 13

or severe conditions of supervised release. 14

C. The N eed to D eter C rime 15

The Government further asserts that the condition is reasonably related to all of the 16

§ 3553(a) factors, including deterrence. See Appellee Br. 13. The Government, however, makes 17
no distinct argument that McLaurin’s plethysmograp h ic condition would be j ustified as a 18

deterrent measure. In any event, we also find it odd that, to deter a person from committing 19

sexual crimes, the Government would use a procedure designed to arouse and excite a person 20
with depictions of sexual conduct closely related to the sexual crime of conviction . In short, the 21

G overnment offers no compelling justification for plethysmography in the name of deterring 22

crime. 2311

D. The N ature and C ircumstances of the O ffense and the H istory and 1 C haracteristics of the D efendant 2
A condition of supervised release must also be “reasonably related to the nature and 3
circumstances of the offense and the history and characteristics of the de fendant.” The charge to 4
which McLaurin pleaded guilty was failure to register as a sex offender in Vermont in 2011. As 5

the district court noted, McLaur in did not hide his whereabouts; he purposefully informed sex 6
offender registry officials of his address in Vermont. His crime was failing to complete 7
paperwork

— albeit important paperwork

. His criminal history includes one other instance when 8
he failed to register his move between two Alabama counties. McLaurin’s only conviction for an 9

actual sexual offense w as for photographing his daughter topless in 2001. Ten years passed 10
between that offense and the instant failure to register, and McLaurin has not been convicted or 11
accused of any substantively s exual crime in that period

. We fail to see any reasonable 12

con nection between th is defendant, his conviction more than a decade ago, his failure to fill out 13
paperwork
, and the government

- mandated measurement of his penis. 14

In the end, we hold that the plethysmographic condition does not bear adequate relation 15
to the statutory goals of sentencing to outweigh the harm it inflict s , that it involves a greater 16
deprivation of liberty than is reasonably necessary to serve any of those statutory goals , and that 17

it ma y not, consistent with substantive due process
, be i mposed on McLaurin. 18

CONCLUSION 19

We vacate the challenged condition of supervised release and remand to the d istrict c ourt 20
for further proceedings consistent with this opinion

. 21