Judge John Kane: The Penile Plethysmograph Is Nuts

The plea agreement was contingent upon whether a state court conviction for child pornography compelled a mandatory minimum of ten years.  When the 10th Circuit held it did, District of Colorado Senior Judge John Kane’s hands were tied. He sentenced Shawn Cheever to the ten year mandatory minimum, and explained in detail why it was the wrong sentence and defied the mandate of § 3553(a).

Section 3553(a) provides evaluative criteria to achieve balance between the order of society intended to be protected by punishment and the utilitarian view that every human being must be afforded dignity. The stated criteria often clash and not all apply in every case, but they demand individuated considerations: No one size fits all.

The object of this balancing process is not to fill in the blank of some mechanical calculation, but to impose a decent, appropriate and deserved sentence under all attendant circumstances. The imposition of mandatory minima removes that balancing from the sentencing calculus and is therefore antithetical to the adjudicative process. The result is a punishment without any expression of rational justification. The ten year mandatory minimum in this case preempts the formulation of a sentence that is sufficient, but not “greater than necessary” to achieve the salutary purposes of Section 3553(a).

And lest any cry “recidivism,” that too was addressed:

It is often said that imprisonment, the loss of liberty while confined, is the punishment for the crime and that the sentence that fits the crime is a condign one. But that statement is neither accurate nor complete. Once released, a prisoner in the United States is frequently barred from the very aspects of law-abiding citizenship that rehabilitation and reform are intended to achieve. A released prisoner is frequently denied the right to vote, the right to sit as a juror and the right to participate in or hold elective office. The released prisoner is barred from numerous entitlements such as public housing, pensions, disability benefits, and perhaps schooling, food and health care. Some public employment is barred and employment in the private sector is exceedingly difficult to obtain. Some companies involved in contracts with the government are likewise prohibited from employing convicted felons. Most released offenders do not receive any assistance in gaining employment or subvention until a legitimate income is received. Small wonder that recidivism is the rule rather than the exception. (Emphasis added.)

But the constraints of the “one size fits all” mentality of mandatory minimums didn’t end Judge Kane’s issues. While he may have been constrained by law to impose a sentence he believed not merely wrong, but counterproductive for a series of reasons, he was then left with the less sexy issue of Supervised Release, a backend detail that rarely gets much notice.

Judge Kane, however, didn’t just sign off on the usual conditions of release that probation routinely sticks in the form.  While sex offender therapy was warranted, one of the facets was the use of the penile plethysmograph.  Judge Kane said no.

I scarcely know where to begin in expressing reasons for rejecting this proposal. What leaps from the page is the expectation to intrude on the freedom, however limited, of a person on supervised release for 15 years by requiring him to comply with unarticulated rules and restrictions specified by an unnamed contract agency that may presently exist or be formed in the future and comprised of individuals over whom the court has no authority or capacity to monitor. The Probation Office advises that contract agencies will not provide their services without the provision requiring the person to submit to polygraphs, plethysmographs and visual reaction time measurements.

For probation, the problem wasn’t so simple, as sex offender therapy isn’t conducted by the government, but outsourced to providers whose therapy included plethysmography, because, well, that’s what they did.

The stark solution to that problem is this: If a contracting agency or therapist will not provide sex offender evaluation and treatment without using these or similar devices, the Probation Office will need to find another who will.

While this may seem obvious to anyone working outside of government, the idea that someone would challenge outside contractors from unfettered discretion in the performance of their function is exceptionally bold. Sign the papers and let unknown, unsupervised therapists down the road exercise unfettered discretion. Leave the discretionary nuts and bolts to them, no matter how invasive and irrational it may be. Not to Judge Kane.

A person released from prison and set free on supervision requiring plethysmograph testing faces the Hobson’s choice of submitting to mind intrusive examinations or having his supervised release revoked for violating a special condition and returned to prison. . . If, indeed, a condition is rational, it should be enforced.

After a thorough debunking of the scientific validity of the penile plethysmograph, Judge Kane goes on to reach an overarching problem with the use of such junk devices as a means of control.

Prohibiting courts, probation and parole officers and treatment facilitators and providers from using devices that fail tests of scientific validity is necessary, but a further comment about the line Judge Noonan describes so eloquently will perhaps provide a resolution to the underlying debility. Judge Noonan evokes the task of Orwell’s “Thought Police” — and using what is “discovered” as a basis for further punishment or superficial rehabilitation. Justice Cardozo in Palko v. Connecticut, 302 U.S. 319, 326-27 (1937) stated: “freedom of thought. . . is the matrix, the indispensable condition, of nearly every other form of freedom. With rare aberrations a pervasive recognition of that truth can be traced in our history, political and legal.” In Texas v. Johnson, 491 U.S. 397, 404, Justice Brennan opined that while “[t]he First Amendment literally forbids the abridgment only of ‘speech,’” this Court has “long recognized that its protection does not end at the spoken or written word.”

As bad as it may be that therapists get paid by the government to arbitrarily stare at an released convict’s penis, it’s worse that his supervised release could be revoked and compel a return to prison for his thoughts.  Judge Kane may have had no choice but to acquiesce in the misguided mandatory minimums, but the “standard condition” of the penile plethysmograph was a line he would not cross.

14 thoughts on “Judge John Kane: The Penile Plethysmograph Is Nuts

  1. Jim Tyre

    I really did not want to read about penile plethysmographs with my morning coffee. This needed a trigger alert, SHG. (On the bright side, I’ve learned a new word today, though I’ll make an effort to never use it.)

      1. Jim Tyre

        Yebbut, you included a link to a prior post of yours, which itself had links. As you want your readers to do, I followed those links.

  2. Troutwaxer

    Does the fact that one gets an erection mean that one will act on the fantasy which produced the erection? There’s a logical leap being made here, and this fact seems like a huge barrier to any assumption that justice is being done.

    An interesting aside here is that the inventor of the plethysmograph became a major advocate for the rights of homosexuals.

    1. SHG Post author

      So you didn’t read the opinion but commented anyway. And cool extraneous info, bro, because reasons.

  3. Patrick Maupin

    If law enforcement is so hot for this tool, the police should willingly get it on. Show them sexy shorts of bondage, discipline, and brains being blown-out; if that gets them going, then give them the shaft, otherwise let them score.

  4. KP

    “As bad as it may be that therapists get paid by the government to arbitrarily stare at an released convict’s penis,”

    You’d have to be pretty queer to do that for a living, it certainly looks like sexual wierdos on both sides of the desk.

    So good to find someone like Judge Kane, but its a worry that no-one else has mentioned this in the past. Justice dazzled by science?

  5. Jardinero1

    Prof Berman, at Sentencing Law and Policy, included this pertinent bit from the opinion: “[A]dministering a penile plethysmograph test necessitates the person administering the test to be engaged in the possession, use and distribution of child pornography. There is no exception in the statute to exclude therapeutic purposes or intent from culpability. The violation is per se. It is paradoxical that the government would mandate individuals subject to supervised release to join an administrator of the test in conduct so vile that it landed him in prison in the first place. The statute criminalizing the possession, use and distribution of child pornography has no exceptions. Both the administrator and the subject are violating the statute. Moreover, the well-established continuing damage inflicted on the child victims portrayed in the pornography derives from the fact that they are seen repeatedly by viewers and it makes not one shred of difference to the victims that the viewer is a pervert or a therapist..”

    1. SHG Post author

      And your reason for copying this here is? The opinion is linked in the post, if anyone wants to read it. I included the portions I chose to include. Doug included what he chose to include. If there is something you want to quote, start a blog and quote your butt off.

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