Separate
Rulings on PPG and “No contact” Orders
Two separate federal appeals courts have said lower courts
have gone too far in depriving sexual offenders of essential civil liberties
without substantive due process or just cause.
In the first case, a federal court of appeals was asked to
determine whether the government has a compelling interest in mandating the use
of the penile plethysmograph (PPG), and in this case a three judge federal
panel said, “No.”
“…we hold that
the plethysmographic condition does not bear adequate relation to the statutory
goals of sentencing to outweigh the harm it inflicts, that it involves a
greater deprivation of liberty than is reasonably necessary to serve any of
those statutory goals, and that it may not, consistent with substantive due
process, be imposed on McLaurin.” [1]
On October 3, 2013, in US v. McLaurin the US Court of Appeals for the
Second Circuit (New York) [1] vacated a lower court ruling compelling David McLaurin, a
sexual offender, to cooperate with PPG. The “Discussion” section of the ruling
begins with, “A person, even if convicted of a crime, retains his
humanity.” What is rather
noteworthy about this statement is that the federal appeals court is not only
putting some back pressure on the public’s antipathy toward sexual offenders,
but would seem to suggest that corrections officials and treatment providers
cannot compromise basic human dignity under the auspices of “treatment” and
public safety. The three judge panel went on to say…
He
also retains his right to substantive due process, even if it is sharply
diminished in many respects … Substantive due process prohibits the government
from invading personal immunities that are “implicit in the concept of ordered
liberty” and “so rooted in the traditions and conscience of our people as to be
ranked as fundamental.”
The appellate court went on to challenge the basis for the
compulsory use of the plethysmograph before summarily dismantling the
government’s legal arguments. Their conclusion, in part, states…
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 ruling seems to question, but not fully dismiss, the
potential therapeutic benefit of PPG; but appears to determine that, in the
absence of truly voluntary consent, or substantive due process, the
cost-benefit ratio of PPG is not sufficient for PPG to be compelled by
government.
The use of PPG for the “treatment” of sexual offenders
(presumably for the benefit of the offender) is just one of many examples of
how the treatment of SO’s has been progressively compromised by the management
of SO’s (presumably in the interests of public safety). Perhaps this is a
reminder that, especially with involuntary clients, treatment is still intended
to be done with clients, not to clients.
The Wolf Child decision [2] from a year ago seems to
have received little attention, but is equally compelling. The United States
Court of Appeals for the Ninth Circuit in Montana was asked to review whether a
district judge erred in determining that Timothy Wolf Child categorically
presented a danger to all children, including his own daughters. The federal
appeals court appears to have concluded that, in the absence of evidence to the
contrary, broad contact restrictions placed on Mr. Wolf Child were a violation
of his civil liberties. The federal appeals court reversed the lower court
restriction and remanded the case to the district court with the directive to
review…
“conditions
relating to Wolf Child’s being in the company of other minors … [subject to]
only suitably narrow conditions that will comply with the applicable legal
requirements … Should the district judge decide to impose such narrowly drawn
restrictions they must be reasonably related to the statutory goals of
supervised release and involve no greater deprivation of Wolf Child’s liberty
than reasonably necessary to accomplish those goals given the facts,
circumstances, and legal requirements set forth in this opinion.”
It is beyond the expertise of this blogger to know the reach
of these federal decisions. It appears that federal appeals court rulings
are binding on federal district courts in their district,
but not in other courts; however rulings may be persuasive in other courts,
especially if decisions were on constitutional (rather than procedural)
grounds.[3] In overturning lower
court decisions, the message from these federal courts might not be intended
just for the judiciary. Perhaps, the courts also intend that professionals,
including corrections agents, treatment providers, and social workers be more
mindful of the civil liberties of sexual offenders.
Sexual offenders typically do not challenge onerous
conditions of probation or terms of treatment because of the perceived risk –
they can make things worse for themselves. Clients not only have to reconcile
what Jeslyn Miller [4] describes as the “treatment paradox”, but failures to cooperate
with treatment or civil requirements typically carry severe penalties. Perhaps,
clinicians also believe we cannot challenge probation or treatment requirements
that seem unwarranted. To the contrary, these federal decisions would seem to
suggest professionals might indeed be complicit in violations of clients’ civil
liberties.
The civil regulation of sexual offenders has been
progressively creeping into treatment, resulting in what Astrid Birgden and Heather Cucolo have called “treatment by
management.”[5] In addition to intrusive PPG testing and unwarranted
contact restrictions, perhaps other examples of overreaching regulatory (i.e.,
civil as opposed to criminal) requirements include sex offender registries,
residence restrictions, polygraph requirements and, in the extreme, sexual
offender civil commitment. When such civil regulations are unreasonably
intrusive, overregulation not only infringes on civil liberties, but may
actually be counterproductive for treatment and recovery of offenders and their
families.
When professionals commingle the healing arts of
psychotherapy with the blurry interests of management and supervision, without
good empirical evidence or unambiguous justification, we may not just be
interfering with clients’ civil liberties, we might be entering the realm of
professional ethics. Such professional actions or omissions may be subject to
review by professional licensing boards.
Whether or not these two federal decisions reach beyond the
Second and Ninth Circuits, the strong opinions issued by unanimous panels of
federal judges amount to something of a rebuke. Prudent rebalancing may have to
come from some combination of two sources: From district courts, whose domain
IS the balance between public interests and individual rights, and professionals
who are most informed about the efficacious treatment and equitable management
of sexual offenders. Concerned sexual offender service providers can play a
vital role with our allied professionals toward informed policies, appropriate
vigilance for prevention, and best practices applied uniquely to clients and
their families.
Jon Brandt,
MSW, LICSW
[1] United States Court of Appeals for the Second Circuit
Docket No. 12-3514-cr 9; US v. McLaurin
Argued: June 18, 2013; Decided: October 3, 2013
The full McLaurin decision:
A short summary of the McLaurin decision by the American Bar
Association:
[2] United States Court of Appeals
for the Ninth Circuit
Docket No. 11-30241, D.C. No. 4:11-cr-00012-SEH-1
USA, Plaintiff-Appellee, v. Timothy Eric Wolf Child, Defendant-Appellant.
Appeal from the United States District Court for the
District of Montana
Argued and Submitted July 12, 2012 - Seattle, Washington; Filed
October 23, 2012
The full Wolf Child decision:
[4] Miller, J. A. (2010). The Treatment
Paradox. The California Law Review, 98, 2093-2128. Retrieved from http://www.californialawreview.org/assets/pdfs/98-6/Miller.FINAL.pdf
[5] Birgden, A., & Cucolo, H.
(2011, September). The Treatment of Sexual Offenders: Evidence, Ethics, and Human
Rights. Sexual Abuse: a Journal of Research and Treatment, 295-313. http://sax.sagepub.com/content/23/3/295.abstract
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