Among certain public officials, penises are all the rage. And so they impose conditions, whether to stick things in there or just to require people to offer them up as a condition of freedom. The Second Circuit, thankfully, does not harbor such an attraction, as reflected in its decision in United State v. McLaurin.
When David McLaurin failed to register as required as a sex offender, he was sentenced to 15 months imprisonment plus, upon release, the standard conditions of supervised release, which the judge pronounced to include:
“participate in an approved program of sex offender evaluation and treatment, which may include . . . plethysmograph examinations, as directed by the probation officer.”
Yes, a plethysmograph exam. The court was kind enough to explain:
This examination involves the use of a device know 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.
Your tax dollars at work, and why there will never be a shortage of people happy to serve this great nation of ours as probation officers. According to the unimpeachable source of all information, Wikipedia, the penile plethysmograph was created by Czech psychiatrist Kurt Freund in the 1950’s to ascertain whether self-proclaimed homosexuals were lying to avoid military conscription. And we use it too!!!
The discussion section of the opinion begins with a shocking statement:
A person, even if convicted of a crime, retains his humanity.
This should be chiseled into the lintel above the courthouse doors. It’s radical. In a system that kills people, that puts them into small rooms without windows and deprives them of human contact for decades, that deprives them of a place to live after they’ve paid their debt to society even though they pose no threat to anyone, this is a radical concept.
The court held that the invasiveness of this procedure was so great that it implicated constitutional liberty interests:
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.”
Yet, was that alone sufficient reason to proclaim that the condition of a penile plethysmograph was so barbaric, so disgusting, so absurdly untenable (as in, the way to “fix” a sex offender is to show him pornography and require him to masturbate?) that it would never be permitted as a condition of any human being’s supervised release?
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.”
While it may not shut the door airtight, it shuts the door. Amen, brother.
But if penile plethysmography crossed the line for convicted felons, sex offenders no less who are as despised as any defendant our system produces, then one has to question how it is possible that the insertion of a tube into the penis of a presumptively innocent man whose foul crime is drunk driving for the sole purpose of obtaining evidence to be used against him in a subsequent proceeding could conceivably pass substantive due process muster?
While some may see the Second Circuit’s decision a product of east coast liberalism gone crazy, and the use of invasive penile exams on sex offenders as a necessary means of protecting the children (and whatever “unpleasantness” it causes the felon is just too damn bad), the radical concept that the government should keep its hands off people’s penises is one that needs to be massaged and enlarged.
Seriously, there has to be a line even officious saviors can’t cross, and this is it. No matter how much they would like to handle things their own way.