by Christopher Zoukis

The Court of Appeals for the First Circuit has vacated two onerous conditions of supervised release and reversed the imposition of a 20 year term of supervised release on a sex offender for violation of the Sex Offender Notification and Registration Act (SORNA).

Moisés Medina, a convicted sex offender, failed to register when he moved to Puerto Rico in 2012. He was arrested for violating SORNA, pleaded guilty, and received a 30 month prison term plus a 20 year term of supervised release. While on supervised release, Medina was restricted from accessing or possessing a wide variety of pornography, and he was required to submit to penile plethysmograph (PPG) testing. Medina objected to the length of his supervised release term and these two conditions.

On March 4, 2015, the First Circuit reversed the 20 year supervised release term. The District Court imposed this sentence after determining that Medina's violation of SORNA for failure to register was a sex crime, triggering a sentencing guidelines supervised release range of five years to life. This was erroneous, however, because a SORNA violation for failure to register is not a sex crime. As such, the supervised release term available under the guidelines was a maximum of five years.

The court also vacated the condition of supervised release that essentially forbade Medina from accessing legal pornography involving consenting adults. The court held that before imposing such a condition, the District Court would need to "expressly justify the condition in terms of the statutory considerations of deterrence, protection of the public, and rehabilitation." Because there was no evidence in the record as to any of these factors, the condition was vacated.

"[T]he record before us 'simply does not support the conclusion that the condition would promote the goals of supervised release without effecting a greater deprivation of liberty than reasonably necessary to achieve those goals,' " noted the court.

The court did not, however, hold that banning a sex offender from viewing legal pornography during supervised release would always be improper. In fact, the court noted that there "may well be a reason to impose a pornography ban" in such situations. However, that reason would need to be approved by the court based on a defendant's specific circumstances.

Finally, the court vacated the imposition of a supervised release condition that would have potentially subjected Medina to PPG testing. According to United States v. Weber, 451 F.3d 552, 554 (9th Cir. 2006), PPG testing "involves placing a pressure-sensitive device around a man's penis, presenting him with an array of sexually stimulating images, and determining his level of sexual attraction by measuring minute changes in his erectile responses."

The court initially noted the irony of the two conditions at issue in this case forbidding the viewing of pornography in one instance, and requiring it in the other. The court further found PPG testing to be highly invasive and controversial.

Reviewing the cases in other appellate circuits, the court found compelling the 2nd and 9th Circuit approaches to PPG testing. These circuits require that a district court provide a substantial justification before requiring PPG testing as a condition of supervised release. The court also found that a district court would need to ensure that imposition of such a condition involved no greater deprivation of liberty than is reasonably necessary.

While the court's decision did not amount to an outright ban on the use of PPG testing as a condition of supervised release for sex offenders, the bar to using the condition was set high. It is not difficult to understand why. For one, as the Second Circuit said in United States v. McLaurin, 731 F.3d 258, 261 (2013), "the procedure inflicts the obviously substantial humiliation of having the size and rigidity of one's penis measured and monitored by the government under the threat of reincarceration for a failure to cooperate." Additionally, as the Ninth Circuit said in United States v. Weber, 451 F.3d 552 (2006), "[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."

See: United States v. Medina, 779 F.3d 55 (1st Cir. 2015).

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