Wednesday, June 1, 2016

Objecting to plethysmograph testing

A sentencing judge has ordered your client to submit to penile plethysmograph (PPG) testing as a condition of supervised release. You don’t think the condition is justified. What do you do?

You immediately appeal that order to the Tenth Circuit, right? Wrong! At least if your client has been sentenced to ten years or more in prison. In that case, the ability of the court to determine the effectiveness of the treatment, and the availability and necessity of the treatment ten years down the road are far too uncertain. Any challenge to the condition is, consequently, not yet ripe. So says the Tenth Circuit in United States v. Bennett.

Okay then, what do you do?

We suggest:
Always object and make a full record in the district court, including a facial challenge to the testing itself, not just as applied to your client.

In a case of a sentence of less than ten years, consider going ahead with a direct appeal. Acknowledge and distinguish Bennett. The appeal may be rejected, but until the Tenth Circuit states that the Bennett rule applies regardless of the length of the sentence, it might be risky to forgo a direct appeal.

If you have made a facial challenge to PPG testing, go ahead with a direct appeal as to that challenge. The Bennett Court suggests that facial challenges to PPG testing will be ripe for immediate appellate review.

If your client is sentenced to ten years or more: Again, object and make a full record in the district court. State on the record that you understand based on Bennett that you cannot immediately appeal this condition as applied to your client. Ask the court to advise your client that he has a right to request counsel to challenge the condition if it is in fact ordered when he is released. Quote Bennett: “Bennett can challenge the condition when he is released from his ten-year sentence if testing is still considered an appropriate treatment option at that time.” How will this work, as a practical matter? That remains to be seen, but at least you will have laid the necessary groundwork to preserve the issue and your client’s right to counsel on release.

One note specific to the District of Kansas: It is not the USPO's current practice to permit PPG during supervision of sex offenders. Check the PSR carefully to make sure that language is not included. There is still a provision for a visual reaction test, though; this testing is personally invasive and warrants the same objections as to the PPG. 

-- Paige Nichols and Melody Brannon

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