“A person, even if convicted of a crime, retains his humanity.”

So begins the discussion section of United States v. McLaurin, — F.3d –, Docket No. 12–3514–cr. (2d Cir., Oct. 3, 2013), a recent Second Circuit opinion holding penile plethysmography, as a condition of supervised release for a defendant convicted of a SORNA violation, “unreasonably intrusive and unrelated to the permissible goals of sentencing.” “What is penile plethysmography?” you might ask. Why not let the distinguished judges of the Court of Appeals explain:

[The plethysmograph] examination involves the use of a device known as a plethysmograph which is attached to the subject’s penis. In some situations, the subject apparently may be required, prior to the start of the test, to masturbate so that the machine can be “properly” calibrated. The subject is then required to view pornographic images or videos while the device monitors blood flow to the penis and measures the extent of any erection that the subject has. The size of the erection is, we are told, of interest to government officials because it ostensibly correlates with the extent to which the subject continues to be aroused by the pornographic images.

In my past life as a sentencing advocate, I worked at an organization that provided treatment for sex offenders and employed a plethysmograph as part of the therapeutic process. While unfamiliar with the referenced method to baseline testing equipment, from what I was told by those who administer the examination the above is fairly accurate.

While the entire decision is worth reading, the following illustrates the trouble the Panel had accepting the government’s weak arguments in support of the district court’s actions:

As we have previously said of mental health “treatment” involving penile plethysmography, “[w]e think there can be no serious doubt that the liberty interests implicated here are of a high order.” The importance of the liberty interests at stake is especially clear since, as the Ninth Circuit has observed, “[p]lethysmograph testing not only encompasses a physical intrusion but a mental one, involving not only a measure of the subject’s genitalia but a probing of his innermost thoughts as well.”

The condition of supervised release at issue is a sufficiently serious invasion of liberty such that it could be justified only if it is narrowly tailored to serve a compelling government interest. Because the Government has proffered no such justification, we agree with Judge Noonan of the Ninth Circuit that, even when dealing with convicted felons, “[t]here is a line at which the government must stop. Penile plethysmography testing crosses it.”

The opinion is an encouraging restraint on governmental overreaching.

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