Wednesday, November 6, 2013

Federal Courts Advance “Liberty Interests” of Sexual Offenders

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
[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.

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