MEMORANDUM OPINION AND ORDER ON SENTENCING
JOHN L. KANE, Senior District Judge.
This matter is before me for sentencing on Defendant Shawn Cheever's plea to a single count of possession of child pornography. I have heard the presentations of counsel, and Mr. Cheever has been afforded his right of allocution. Because the question of a condign sentence in this case, and in cases involving plea deals negotiated in rigid adherence to non-binding Sentencing Guidelines generally, raises sentencing issues about which I have thought long and hard, I take time to address them in the following written opinion.
Shawn Cheever's criminal record includes eleven prior felony convictions including those for forgery, fraud, assault, drug possession, and criminal impersonation. He was also convicted of a State of Colorado misdemeanor charge of possession of child pornography. He is known to have used at least seven different aliases. At age 45, he has been sentenced numerous times to community corrections and probation, but in all but one instance failed to conform to community confinement rules and was sentenced to jail or prison. In two instances, he was given deferred judgments and in both the deferrals were revoked and he was convicted.
On January 27, 2015, a two count indictment issued charging Cheever with Receipt of Child Pornography and Possession of Child Pornography. The indictment also included an unnumbered forfeiture allegation. On April 29, 2015, as the result of a plea bargain, he plead guilty to the possession charge and admitted the forfeiture allegation. The prosecution agreed to dismiss the receipt charge at the time of sentencing. Numerous other quids and quos involving Sentencing Guideline provisions and calculations were set out in the Plea Agreement, but because the Guidelines will not be employed in this sentencing, they provide little assistance to me.
Cheever has been in custody since his arrest. The case was set for sentencing on July 22, 2015, but by stipulation of the parties the date was continued because the question arose whether the child pornography statute's recidivism provision applied based on Cheever's state conviction under the Colorado pornography statute. If applicable, the federal statute would change the statutory penalty range of 0 to 10 years to a range from a mandatory minimum of 10 years to a maximum of 20 years. That exact issue was then pending before the Tenth Circuit Court of Appeals in
There is now no reason why sentencing cannot proceed. The statutory penalty, with the recidivism enhancement, is not less than 10 nor more that 20 years imprisonment, a fine range of $12, 500 to $125,000 or both such imprisonment and fine together with a supervised release range from 5 years to life and a mandatory $100 special assessment fee.
APPLICABLE LEGAL STANDARDS
While I have determined for reasons stated below not to employ the advisory Sentencing Guidelines, I am nevertheless obliged to review them.
Nevertheless, I have notified both defense counsel and the prosecution that I will not impose a sentence based on the Guidelines; that I base my sentence on the mandated minimum and a full consideration of the criteria set out in 18 U.S.C. § 3553.
Other district courts have rejected the Guidelines in these circumstances and I have done so in previous cases.
As the Supreme Court remarked in
Having found the correct calculation of the Guideline sentence as set out above, I find: (1) the Guidelines are not mandatory; (2) the facts have been provided by the Probation Office and subjected to objection by both the prosecution and the defense, but no objections remain; (3) both parties have been advised that the sentence to be imposed will not be a Guideline sentence; and (4) both have been given full opportunity to brief and argue their positions as to a condign sentence even though the Supreme Court in
Though I am bound by the statute and the Tenth Circuit's decision in
Application of § 3553(a) Factors
It serves no useful purpose to describe the images and videos with particularity. Suffice to say they are lurid and graphic images of young children, boys and girls, involved in demeaning sexual poses and activities.
As mentioned above, at the time of the instant offense, Cheever had previously been convicted on a State of Colorado charge of Sexual Exploitation/Child-Possessing Material in violation of Colorado Revised Statute 18-6-403(3)(b.5), a Class One Misdemeanor. Cheever admitted to FBI agents that he posted on a website known to be used for purposes of transmitting child pornography and once wrote on it: "If you want to trade pics of girls 10 to 30 no fatties no boys just send me something and I will reply." When individuals responded, he would advise they must send him something first (child pornography). After receiving these images, Cheever did not reciprocate with the promised images. In order to avoid having his probation or parole officers know or have access to his use of these sources, Cheever had set up a fictitious Facebook page with the alias "Brook Dakine" and then another under the name "Tyler Durden 1024"
When officers went to his residence to execute the search warrant, he refused to answer or open the door. The officers breached the door and gained entrance though Cheever attempted to block them. When later he was asked why he would not open the door, he said, "I am an American. I have a right not to answer my door. I never answer the door for cops and I never will." He admitted further that during the 15 or 20 minutes before the door was broken, he had been texting friends to let them know he was going back to jail and asking them to put money on his account books.
Shawn Alexander Cheever was born in Denver, Colorado, to Donna Bell McKim. He did not meet his father, Robert Cheever, until he was 15 years old. He later discovered that the father of his two half-brothers was Robert Cheever's brother, Laverne Cheever. Donna Bell McKim remarried Gerald Dewayne McKim when Shawn Cheever was 4 years old. He and his half-brothers were raised by Donna and Wayne McKim. The brothers considered Mr. McKim their father. The couple divorced when Shawn Cheever was an adult. His mother is 69 years old, retired and lives in Nebraska. Wayne McKim is now 75 and lives in Iowa.
Cheever asserts he has a good relationship with his mother, except when he has used drugs. Mrs. McKim states she speaks with Cheever on a weekly basis and has been to see him a few times during his present incarceration. She states she is unaware of the charges against him and did not want the probation officer interviewing her to advise her. She stated, "If he wants me to know, he'll tell me." Cheever's older half-brother, Stacey Bell, died in 2009 due to complications from diabetes. His older half-brother, Edward Bell, is now 48. The two have telephone contact with one another every month or two and maintain a cordial relationship. Cheever relates that McKim would physically abuse the older boys on occasion until they left home. When Stacey Bell died, Cheever states he became the recipient of the abuse. Mrs. McKim denies the abuse allegations. Cheever left home at the age of 15. He was adjudicated a juvenile delinquent the following year.
Cheever had a common law marriage to one woman from about 1995 through 2006 when they divorced. He reports the marriage was marred by their use of heroin. The union resulted in a daughter, who is now 19. Cheever has had no relationship with the daughter in the past three years and owes back child support. For the past 13 years Cheever has had a relationship with a woman now age 46. They met at a halfway house in 2002 or 2003. She was then in custody for possession of a controlled substance, served a five month sentence and reports being drug free since her release.
In 1994 Cheever fell three stories from a roof in a work related incident and received traumatic brain injuries. He was in an intensive care unit for one month and suffers from some incidental partial amnesia. At one time he was paralyzed and had to undergo rehabilitation at a neurological center for about two years. He continues on occasion to experience seizures and loses his sense of time. As a result, he does not drive cars. When he was younger, while riding a bicycle with his half-brother, he was in a collision with a car and has since been struck twice by cars but reports no major injuries as a result. He has eight tattoos on his chest, back, shoulder, and left thumb. He has had no mental health treatment, but admits to being a "cutter" and claims to have stopped. He was, however, caught while in custody for the present charge with prohibited possession of razors hidden in his cell and his cutting was confirmed by jailers. There is no immediate need of medical treatment, but the seizure problem is unresolved.
As a consequence of his state misdemeanor conviction for Sexual Exploitation/Child-Possession Material, Cheever was required to register as a sex offender and attend sex offender treatment. He complied with the registration requirement, but he failed to enter offense-specific treatment as directed. He was instructed by the state probation department to submit to maintenance and monitoring by polygraph and failed to report as scheduled or to be tested. A Sex Offense-Specific Evaluation was completed on August 20, 2012, the conclusion of which was that he "presents with concern," which translates in essence to a lack of personal accountability, denial, and lack of motivation for treatment. His test scores show a low propensity for violent recidivism. The evaluative recommendations were for anger management, sex offense specific therapy and substance abuse treatment.
A psychological assessment completed on July 18, 2015, showed his "abstract problem solving abilities were found to be in the low range." His "response pattern suggests his behavior is characterized by physical and emotional withdrawal, motivated by a deep-seated fear of rejection by others." When "faced with stressful situations, he is likely to become more detached and to withdraw into his protective shell." Cheever reported that he was "currently feeling anxious, dejected and hopeless, and that he is bothered by memories of a troubling event." The evaluator determined he did not meet criteria for Paranoid, Antisocial or Narcissistic Personality Disorder. He did, however, acknowledge an interest in online sexual behavior and previously engaging in illegal online activities. He showed no interest in building online relationships or engaging in online activities that involved interpersonal relations.
The assessment of Sexual Interest revealed that Cheever identified adolescent and adult females as groups of individuals he is generally sexually interested in. He stated he watches pornography when "high" as a masturbatory stimulus. He denied any interest in deviant activities. The evaluator's diagnostic impression was that Cheever has a specific personality disorder of mixed avoidant and depressive features, unspecified anxiety disorder, unspecified depressive disorder, opioid use disorder, and stimulant use disorder. He does not have an antisocial personality disorder and has not committed hands-on sexual offenses. He currently appears free of symptoms typically associated with a thought disorder. His failure to comply with court ordered mandates shows a high risk for conditional release and a high risk for further pornography related offenses if he has access to drugs and resumes using them. He did express a desire to engage in treatment in order to understand his behavior. This seems to be a departure from his previous comments and conduct.
Cheever first started drinking alcohol in the 7th grade and last consumed alcohol shortly before his arrest for the instant offense. He first used marijuana at age 11 and last used it in January, 2015. He smoked marijuana about once a month, but says the newly available marijuana in Colorado "is too much." He first used cocaine in the 8th grade and used it daily for one or two years. He used crack cocaine at age 26 shortly before going to prison. He tried LSD a few times as a teenager, but not thereafter.
In 2001-2003, Cheever was a daily user of methamphetamine. He was a heavy user until 2006. He was drug free from 2006 until December, 2013, when he started using a combination of methamphetamine and heroin and did so regularly until his arrest for the instant offense. Once in custody, he was placed in medical housing due to withdrawal symptoms.
While not in custody for extended periods of incarceration, Cheever has been employed as a waiter, as a firewood supplier, and in online computer work. He has a GED and completed online community college courses in graphic design. He has paid taxes sporadically, has no known assets and a negative net worth of $17,069.88, which includes a $12, 762.88 arrearage in child support. Psychosexual Evaluation filed on July 8, 2015, prepared by a licensed clinical psychologist, concludes that Cheever's most serious problem is drug abuse and that his other difficulties including resort to child pornography, failure to function successfully while on community supervision, and intermittent failures in personal relationships accompanied by abusive behavior are related to, if not entirely precipitated by, chronic and heavy drug use. His risk assessment for future recidivism is moderate to high depending on his access to and abusive use of drugs. His risk for "hands-on" offenses is low. His work history and capability when not abusing drugs demonstrate he can be self-supporting in lawful occupations. The emphatic recommendation of the evaluator is that Cheever, while in custody and thereafter, receive substance abuse treatment with traditional treatment modalities and specific ones including "Feeling-State Addiction Protocol, Desensitization of Triggers and Urge Reprocessing Protocol and Reprocessing Therapy."
The Need for the Sentence Imposed
A. To reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.
The manufacture, distribution, and possession of child pornography constitute serious crimes not because of their focus on prurient interest or even that child pornography is obscene, which it most certainly is by any standard. Rather, in
Consumers, even "mere voyeurs," create a demand for the production and distribution of child pornography of the most damaging kind. Forensic pediatricians such as Sharon W. Cooper, M.D., provide powerful and convincing evidence that the children who have been exploited to satisfy this perversion suffer long-term devastating effects.
Punishment is an unpleasant subject and its efficacy in many cases is questionable. Nevertheless, punishment is an integral part of the sentencing constellation. The noted English jurist, Lord Justice Denning, called punishment "the emphatic denunciation by the community of a crime." When imposed in public with stated reasons expressed, punishment reinforces the community's respect and declaration of its moral and legal standards and for that reason is justifiable. When imposed, however, in secret or without rational justifications, it becomes more mocked than feared. As stated by Thomas Jefferson, "[I]f the punishment were only proportioned to the injury, men would feel it their inclination as well as their duty to see the laws observed."
Arbitrary punishments, however, are just that and serve little, if any, positive purpose. Even the utilitarian assertion that punishment serves a positive purpose is mitigated by its proviso that every human being should be treated with at least a minimum of respect as a source of rights and expectations and not merely as an instrument for promotion of the social order. Ironically, the revulsion widely felt about crimes involving child pornography is exacerbated by the utter lack of empathy shown to the child victims by the offenders. That callousness alone is a factor that increases the proportional measure for punishment.
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).
Moreover, the duration of a sentence to prison is not the entire punishment imposed pursuant to federal law. 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.
B. To afford adequate deterrence to criminal conduct and to protect the public from further crimes of the defendant.
Plainly stated, Cheever has been violating one criminal law or another since at least the age of 15. Only once has he successfully completed probationary release. He is clearly a recidivist and his record demonstrates that lenient sentences such as the many times he was sentenced to community corrections have failed to have any corrective impact. The record of his having engaged in violent behavior began in 1994 when he plead guilty to menacing-use of a deadly weapon and third degree assault and was extended in 1997 when he was again convicted of third degree assault. His other felony convictions are for theft, forgery, burglary, criminal impersonation, and possession of controlled substances. His lengthy record of felony convictions appears to be related to his need to buy drugs and support his addictions. That is quite clearly not a justification for his deviant behavior.
The various psychological evaluations agree that Cheever's resort to observing child pornography is likewise drug related. While the risk of recidivism is high if he resumes taking drugs, the best means of preventing further crimes by Cheever is to provide successful substance abuse treatment. Because of the mandatory minimum sentence of ten years, the public will be protected from further crimes by him during his incarceration, but without intensive treatment, risk to the public will not be attenuated. All other considerations aside, the best and most efficient chance for protecting the public and deterring Cheever is to provide treatment in the various recommended modalities.
C. To Provide the Defendant with needed educational or vocational training, medical care and other correctional treatment in the most effective manner.
As previously stated, Cheever has demonstrated employable skills. Additional training in graphic design and computer maintenance and repair would benefit him, but should receive a lower priority than the recommended treatment programs. The essential need is for medical and psychological care and treatment. Given his record of not cooperating with community confinement programs, failing to report or comply with and submit to specific treatment programs in the past, his prognosis is guarded at best.
THE SENTENCE TO BE IMPOSED
There is no ambiguity regarding the perimeters of an allowable sentence. Cheever is subject to the mandatory minimum of ten years and a maximum of twenty years. I have described as best I can that this mandatory minimum is greater than the time needed to provide the necessary treatment programs and, as such, is counterproductive to a sentencing plan to reduce the risk of further criminality on his part. Congress has determined that the need for punishment of this most serious crime, however, justifies a sentence of ten years followed by supervised release, and I must acquiesce in that determination.
The instant offense involved the defendant knowingly possessing child pornography including approximately 178 images. Some of the images involved a prepubescent minor. Some of the images portrayed masochistic and sadistic conduct, and other depictions of violence. The activity engaged in by the defendant is indeed serious and causes unrelenting harm to the victims and to the entire community. To the extent the defendant possessed these images, he contributed to the demand and market for further pornography and its consequent victimizing of helpless children.
The defendant has a negative net worth and no prospects of income so that a fine would be superfluous. There is no claim for restitution and Cheever has abandoned any claim to the property seized incident to his arrest. The $100 special assessment fee is mandatory.
I have given considerable thought to the length of supervised release to be imposed. The defendant is now 45 years old. With credit for good time, should he earn it and deserve it, he will be eligible for supervised release when he has served 85% of his sentence, or 8.5 years. Whether he receives credit for the time he has been confined pending this sentence is a matter entirely within the discretion of the Bureau of Prisons. Thus, upon release from incarceration, Cheever will be about 53 years old. Whether he succeeds in completing the programs that will be afforded him in prison is a matter that is entirely up to him. If he does succeed, the best judgment from the evaluating experts is that he will need more programs and treatment while on release.
Society is paying much more now for his confinement and possible rehabilitation than it would have spent to correct his childhood and adolescent neglect. The length of supervised release according to statute is in a range from 5 years to life. At some point, Cheever's age will have a substantial effect on his risks to the public such that further supervision would be unavailing. Given the need, however, for continuing supervision and treatment, and the anticipated length of treatment programs, a sufficient period of supervised release is necessary. In the specific circumstances of this case, the probation professionals who will supervise Cheever's release recommend the length of it should be 15 years. I agree and see no reason to dispute the recommendation.
Therefore, it is the judgment and sentence of this court that the defendant, Shawn Cheever, is hereby committed to the custody of the U.S. Bureau of Prisons for a term of ten years Upon release from imprisonment, the defendant shall be placed on supervised release for a term of 15 years. The defendant shall immediately pay a special assessment of $100. I find the defendant does not have the ability, prospects or resources to pay a fine, and so I waive the fine in this case.
It is further declared, pursuant to Rule 32.2 of the Federal Rules of Criminal Procedure and the Plea Agreement signed by Mr. Cheever and his counsel, that Cheever forfeit his interest in the following to the United States: (1) a Dell Laptop computer bearing serial number 45VM8F1; (2) a WD hard drive bearing serial number WCALK1373091; and (3) a Samsung cell phone.
It is the strong recommendation of this court that while in the custody of the United States Bureau of Prisons and thereafter under supervised release, including release to halfway house facilities, the defendant receive substance abuse treatment with traditional treatment modalities including, but not limited to Feeling-State Addiction Protocol, Desensitization of Triggers and Urge Reprocessing Protocol, as well as Reprocessing Therapy. It is further recommended that the defendant participate in the following programs: Sex Offender Management Program (SOMP); Residential Drug and Alcohol Treatment (RDAP); anger management and such mental health programs as evaluators deem appropriate. The defendant should also be afforded the opportunity to participate in such voluntary programs as Alcoholics Anonymous, NarcAnon and any similar organization providing abstinence and recovery assistance to sex offenders.
While on supervised release, Cheever is subject to the following conditions and they may not be changed or modified without the prior authorization of this court.
1. The defendant shall report within 72 hours of his release from imprisonment to the Probation Office in the federal district to which he is assigned.
2. The defendant shall not leave the judicial district to which he is assigned without the prior written permission of the court or probation officer.
3. The defendant shall report to the probation officer promptly in a manner and frequency directed by the probation officer.
4. The defendant shall at all times answer truthfully all inquiries by the probation officer concerning the conditions of supervised release and his activities while on supervised release and shall follow explicitly the instructions of the probation officer.
5. The defendant shall not incur debt or credit without the prior permission of the probation officer. The defendant shall provide any and all financial information upon request of the probation officer.
6. The defendant shall maintain employment and work regularly at a lawful occupation unless excused for acceptable reasons such as illness or lack of employment availability as determined by the probation officer.
7. The defendant shall notify the probation officer in person or in writing duly delivered at least ten days prior to any change in residence or employment.
8. The defendant shall refrain from imbibing, injecting, inhaling or otherwise using any intoxicating substances and shall not possess, purchase, use, distribute or administer to himself or anyone else any controlled substance or use or possess any paraphernalia related to any controlled substance, except as prescribed by a licensed physician with notice given in advance to the probation officer nor shall the defendant use, possess, or sell any marijuana or its derivatives (including THC) in any form, including edibles, and shall not enter any marijuana dispensary or grow facility even if permitted by any state law.
9. The defendant shall not frequent any places where controlled substances are illegally sold or used, distributed or administered.
10. The defendant shall not associate with any persons engaged in criminal activity or deriving any income therefrom. Unless specifically authorized by the probation officer, the defendant shall not associate with any person convicted of a felony except to participate in any approved treatment programs during sessions of such programs, but neither before nor after them.
11. The defendant shall permit a probation officer to visit him at any time or place and shall permit confiscation by the probation officer of any contraband observed in plain view.
12. The defendant shall notify the probation officer within twenty-four hours of being arrested or questioned by a law enforcement officer for whatever reason.
13. The defendant shall not enter into any agreement to act as an informer or special agent or source for or on behalf of any law enforcement agency without the prior written permission of the court.
14. The defendant shall comply with all reporting laws including the Adam Walsh Act and shall notify third parties, including employers, of his criminal convictions and his status on supervised release. The probation officer is hereby authorized and directed to make similar notifications to anyone who in the judgment of the probation officer needs to know or to confirm the defendant's compliance with this notification requirement.
SPECIAL CONDITIONS OF SUPERVISION
In addition to the foregoing standard conditions, the defendant shall comply with the following special conditions:
1. The defendant shall participate in and successfully complete a program of testing and/or treatment for substance abuse, as approved by the probation officer, until such time as the defendant is released from the program by the probation officer. The defendant shall abstain from the use of alcohol or other intoxicants or depressants during the course of treatment and shall pay such of the costs of treatment as he is able as directed by the probation officer.
2 The defendant shall participate in and successfully complete a program of mental health treatment as approved and directed by the probation officer, until such time as the defendant is released from the program by the probation officer..
3. The defendant shall participate in and successfully complete a program of sex offender evaluation and treatment, as approved by the probation officer. Any such program, however, shall not include polygraph, penile plethysmograph
4. The defendant's use of computers and internet access devices shall be limited to those that the probation officer specifically authorizes in advance of any such use or programming. The defendant shall submit his person, property, effects including any car, computer, books, papers, other electronic communication devices or copies to search by the probation officer at any time in order to monitor compliance with this order.
5. The probation officer is authorized to install and the defendant shall permit any such installation of any software or hardware designed or intended to monitor computer activities on any computer the defendant is permitted by the probation officer to use. A notice shall be placed on the computer at the time of installation to advise and warn others of the existence of such monitoring software on the computer. The defendant shall not attempt or cause to be made any removal, tampering or reverse engineering, or any other means or method of circumventing the software/hardware described above.
ADDENDUM TO MEMORANDUM OPINION AND ORDER ON SENTENCING
Defendant Shawn Cheever
Criminal Case No. 15-cr-31-JLK
The Presentence Investigation Report for this case prepared by the United States Probation Office contains in its proposed special conditions at paragraph 3 pertaining to sexual evaluation and treatment a generalized provision which I refuse to include in my judgment and sentencing order. The Tenth Circuit has held that a district court cannot delegate the decision of whether to subject a defendant to residential treatment or penile plethysmograph testing to a probation officer and that penile plethysmograph testing "must be imposed by the district court and supported by particularized findings that it does not constitute a greater deprivation of liberty than reasonably necessary to accomplish the goals of sentencing."
Three years after
The special conditions portion of the instant Presentence Report I reject seeks to authorize a treatment provider to require polygraph, plethysmograph (PPG) and visual reaction time measurements. This is a blanket authorization, but who defines or establishes or enforces the requirements cannot be ascertained unless such a program is implemented. The person subject to the provision is required to pay for the costs of these tests, consequent evaluations and treatments and to comply with the rules and restrictions specified by such a treatment agency, but such costs, rules and restrictions are not disclosed.
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.
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. Failing this, the special condition will be abated until a court-approved source providing sexual evaluation and treatment without these tests can be secured.
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. A court, faced with such a violation must either enforce the condition by revocation or modification of supervised release or decline and thus trivialize the integrity of the process. If, indeed, a condition is rational, it should be enforced. The proposed special condition, however, does not meet the test of even minimal rationality, much less is it one that does not intrude into the province of fundamental freedoms.
The standards for determining whether a given test will promote the goals of supervised release and whether such a test involves no greater deprivation of liberty than is reasonably necessary for the purposes of supervised release are not the same as those used to determine whether evidence of such tests is admissible under the Federal Rules of Evidence.
The penile plethysmograph fails to meet the standards of
As stated by the Court of Appeals for the Fourth Circuit, "[T]he scientific literature addressing penile plethysmography does not regard the test as a valid diagnostic tool, because although useful for treatment of sex offenders, it has no accepted standards in the scientific community."
There is no uniform standard by which arousal data is correlated with deviant behavior. Thus, because therapists have the unfettered discretion to define certain arousal as deviant, they have ultimate control over treating protocols and declaring when the "deviant" is "cured."
Proponents of using the penile plethysmograph correlate arousal data to deviant sexual behavior by assuming that individuals with a history of sexual offenses who respond to illicit sexual stimuli are likely to react in furtherance of their responses. There is no scientifically accepted data presented to justify this assumption, nor does it have any logical basis. Rather, just as with the polygraph (lie detector) machine, it is used as a tool of coercion by both law enforcement personnel and treatment providers. The plethysmograph is used to obtain inculpatory admissions, the reliability of which is at best equivocal. The patient or suspect may believe he can manipulate the results — and with a modicum of sophistication or psychopathy, he may well be able to do so. Or, the suspect or patient may succumb to the threat, overt or implied, that his refusal to submit to testing has negative implications that can result in further incarceration, withholding of privileges or being held back in the treatment or incarceration processes and therefore lie about his interests or past behavior. Moreover, it is not fanciful speculation that false test results can be conveyed to the individual in order to reduce resistance and gain inculpatory admissions.
In sum, the plethysmograph is used in some instances to produce adverse consequences that are predetermined. Just how efficacious current sex offender treatment using the penile plethysmograph is in reducing deviant behavior is best judged by recidivism rates which, such as they are, do not present a serene or confident prognosis.
Another point is that administering 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.
In his concurring opinion in
451 F.3d 552, 570 (9th Cir. 2006) (emphasis added).
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
The established traditions of our law embrace the ancient common law principle that liberty should not be impinged or threatened for what a person thinks, but only for what a person does. The maxim cogitationis poenam nemo patitur (no one is punishable solely for his thoughts) was written long before the invention of the plethysmograph or other machines intended to probe the recesses of the mind. It is interesting to observe that while obscenity has never been considered protected by the First Amendment, the Supreme Court in
Penile plethysmograph tests rely on the heavy assumption that stimuli arousal is strongly related to the potential for recidivism. Inferences by the courts about a person's potential for sexual offense based on his innermost sexual desires fail to acknowledge that arousal data is not an ineluctable precursor to deviant behavior. This observation,
It is argued at various places in the vast literature on this subject I have reviewed that the value of the plethysmograph is not to condemn or to judge, but rather to facilitate the evaluation and therapy undertaken by nudging the subject along to admit his defect of character — a sort of plaintive admonition that confession is good for the soul and overcomes the resistance to therapy that is manifested in denial. Such admission is regarded as one of the first steps toward a rehabilitative state of refrain and abstinence. Perhaps it should be considered a shortcut in therapy. (One can only surmise that a relapse after treatment would exacerbate the perversion because it occurs in spite of the therapy generated by the conscious admission.)
The Court of Appeals for the Second Circuit held in
The special condition requiring Cheever to submit to plethysmograph testing is specifically rejected. So, too, until such time as I am presented by the government with proof that the polygraph and the visual reaction time measurement device will meet the goals of supervised release as applied to a particular defendant, that such testing will involve no greater deprivation of liberty than is necessary for the particularized supervised release of an individual defendant and that there are no alternative measures, techniques or devices available that are any less intrusive to freedom of thought, they, too, are rejected.
18 U.S.C.A. § 3553 (West).