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USA v McLaurin

10-3-2013 Vermont:

USA v McLaurin

David McLaurin, a convicted sex offender, was required by federal law to register any change in his address. He failed to do so and, following his guilty plea, was sentenced in the United States District Court for the District of Vermont to fifteen months' imprisonment and five years of supervised release. As a condition of his release, McLaurin was required to "participate in an approved program of sex offender evaluation and treatment, which may include . . . plethysmograph examinations, as directed by the probation officer." Judgment, United States v. McLaurin, No. 11 Cr. 113 (WKS), Dkt. No. 28 (D. Vt. Aug. 22, 2012), J. App. 9.

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.

McLaurin objected to this requirement as unnecessary, invasive, and unrelated to the sentencing factors specified in 18 U.S.C. § 3553(a) and therefore impermissible as a discretionary condition of supervised release. See 18 U.S.C. § 3583(d)(1). The district court nonetheless imposed the requirement without reference to the statutory goals of supervised release or to any expected benefits to the public or to McLaurin. McLaurin now appeals.

We hold that this extraordinarily invasive condition is unjustified, is not reasonably related to the statutory goals of sentencing, and violates McLaurin's right to substantive due process. We therefore vacate the condition.

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