Supervised Release, Sex-Offender Treatment Programs, and Substantive Due Process

By Max B. Bernstein


There is an inevitable tension between supervised release and liberty.  But what should appellate courts do when trial judges impose conditions of supervised release that restrict constitutionally protected liberties?  This Note seeks to resolve that issue through the lens of one particular condition of supervised release that district courts in nearly every federal circuit have imposed:  mandated penile plethysmography testing.

The penile plethysmograph (PPG) is a treatment and diagnostic tool that measures a man’s arousal to sexually deviant stimuli.  The test subject attaches a small mechanical device to his penis and is presented with audio or visual stimuli depicting normalized sexual behavior and coerced sex or child pornography.  The PPG measures changes in the subject’s penis size as he is presented with different stimuli.

This Note argues that mandated PPG testing should be eliminated as a condition of federal supervised release.  The test infringes on a constitutionally protected liberty interest against unwanted bodily intrusions and, as only the Second Circuit has held, any condition of supervised release that infringes on a constitutionally protected right may be mandated only where it is narrowly tailored to serve a compelling government interest.  Because there are a number of viable, less intrusive alternatives, PPG testing as it stands today is not narrowly tailored enough to serve a compelling government interest.

As an alternative, district court judges should suggest the test as a voluntary treatment option.  Making the test voluntary avoids the constitutional issues.  Moreover, PPG test results are most useful when the subject is a willing participant and many of the reliability and validity issues subside when the test is not mandated.  Voluntary PPG testing is appropriate both legally and scientifically and should be the only means by which PPG testing is used moving forward.