Seventh Circuit Week in Review, Part I: PPGs and Halfway Houses

The Seventh Circuit had six new opinions in criminal cases this week, all dealing with sentencing issues.  Two focused on supervised release questions, which will be the subject of this post; the remaining four with be covered in another post.

First, in United States v. Rhodes (No. 07-3953), a sex offender challenged penile plethysmograph (“PPG”) testing as a condition of supervised release.  PPG testing involves attaching a monitor to the male subject’s genitals, presenting him with an array of sexually stimulating images, and then determing the degree of arousal by measuring erectile responses.  When used with sex offenders, the hope is that arousal patterns can be studied to determine how great the risk is that an offender will commit new sex crimes.  Although experts disagree as the effectiveness of PPG testing, it has become a routine part of adult sex offender treatment programs. 

Following his conviction, the district court sentenced Rhodes to ten years in prison, followed by a life term of supervised release.  In connection with his supervised release, Rhodes was ordered by the judge to “undergo a psychosexual evaluation and participate in an outpatient sex offender counseling program if recommended by the evaluator which may involve use of polygraph and plethysmograph [PPG] examinations.”  On appeal, Rhodes challenged the PPG condition as a deprivation of liberty that was greater than “reasonably necessary” in violation 18 U.S.C. §3583(d)(2).

The Seventh Circuit (per Judge Tinder) dismissed the appeal without prejudice, reasoning that Rhodes’ claim was unripe.  Because an evaluator might not actually recommend PPG testing for Rhodes at the conclusion of his prison term — and one does hope that better technology will be available in ten years! — Rhodes might not suffer the liberty deprivation he complained of.  In declining to review Rhodes’ claim on the merits, the Seventh Circuit adopted the approach of the Sixth Circuit in a similar case, and rejected the approach of the Ninth Circuit in United States v. Weber (9th Cir. 2008), which required the “district court to state precisely why the PPG testing is no greater deprivation of liberty than is reasonably necessary.”

In the second supervised release case, United States v. Head (No. 07-3619), the Seventh Circuit created a circuit split.  Following his violation of an initial supervised release order, Head was sentenced to two years of prison and one additional year of supervised release, with the first six months to be spent in a “residential reentry center.”  On appeal, Head argued that the district court judge lacked authority to include this halfway-house condition.

The federal probation statute includes a laundry list of conditions that a sentencing judge may order for purposes of probation, including confinement in a halfway house.  As it existed at the time of Head’s sentence, the federal supervised release statute specifically incorporated the probation conditions as permissible supervised release conditions — with the conspicuous exception of the halfway-house condition.  The legislative history strongly suggests that this omission was simply a clerical error by Congress.  Indeed, last October, Congress amended the supervised release statute so as to include the halfway-house condition.  However, as the Seventh Circuit (per Judge Williams) indicated in Head, the amendment should not be read to apply to defendants convicted and sentenced before its passage.

Surprisingly, all seven circuits to have considered this supervised release problem have interpreted the statute contrary to its plain meaning and permitted sentencing judges to impose the halfway-house condition.  For defendants, the eighth time is a charm: the Seventh Circuit actually adhered to the statute’s plain meaning in Head

The case is interesting from a statutory interpretation standpoint for presenting such a clear conflict between statutory text and legislative intent.  Where other circuits have bent over backwards to find ambiguity in the text, thereby permitting recourse to other considerations, I think the Seventh Circuit has correctly found the relevant statutory language to be clear.  And, as the court observed, “Even if Congress made a mistake, it is beyond our province to rescue Congress from its drafting errors, and to provide for what we might think is the preferred result.”

This Post Has 3 Comments

  1. Tom Kamenick

    That’s about one step away from Clockwork Orange (the PPG tests).

  2. Andrew Golden

    It seems like the Rhodes decision is a bit of “pass the buck.” I mean, I understand why they’re not discussing it now, seeing as how it might not actually be used. That being said, the fact that this is a permitted sentence component means that they do intend to use it at some point, and it’s not as though courts haven’t ignored the lack of ripeness to hit on the deeper subject before.

    But that’s not even my greater concern. How does this pass Frye or Daubert? How is this any more reliable or scientifically accepted than polygraphs? Perhaps I’m missing the reams and reams of PPG studies, but surely we need a little confirmation that this isn’t just a shaky scientific premise before we start allowing PPG to be a condition of release.

  3. Brian Borkowicz

    I agree with Andrew. The dignity issues involved in hooking electrodes to the genitals of an unwilling person and forcing him to view graphic images (and subjecting him to the process as many times as the evaluator sees fit over the rest of the offender’s life) should be tolerated only if the results offer a proven, meaningful insight into the likelihood of re-offending. One would think that PPG testing would show no more than what is already known about the person being tested – that rapists are likely to be aroused by images of rape, child molesters are likely to be aroused by images of child pornography, and those convicted of sexual torture are likely to be aroused by images of sexual sadism. A prison sentence is probably not going to change those tendencies, and I don’t see how those arousal patterns prove that one sex offender is more likely to re-offend than another.

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