2nd Cir. vacates CP producer's penis measurement sentencing condition imposed for failing to give notice of move

In 2001, Alabama resident David McLaurin was convicted of producing child pornography and sentenced to ten years in prison. Most of the time was suspended, but he later served more time for failing to notify the state when he moved to a different county. He moved to Vermont in 2011, notified the authorities of the move, but he did not fill out the proper paperwork which violated the Sex Offender Registration and Notification Act.

McLaurin was found "unlikely to reoffend again" but was sentenced to prison and supervised release for the paperwork issue. A part of his supervised release included "plethysmograph examinations." The procedure "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." It may or may not first require the subject to masturbate in order to get a baseline. Even better - the test was designed by the Czechoslovakian government "to identify and 'cure' homosexuals."

Before the Second Circuit, McLaurin argued that the test was "unnecessary, invasive, and unrelated to the sentencing factors." The government argued that "the size of the erection is ... of interest to government officials because it ostensibly correlates with the extent to which the subject continues to be aroused by the pornographic images."

The appeals court, noting that "[a] person, even if convicted of a crime, retains his humanity," held that the procedure violates McLaurin's rights, vacated the condition, and remanded the case to district court. Here's an excerpted outline of their reasoning:

• The condition of supervised release at issue is a sufficiently serious invasion of liberty such that it could be justified only if it is narrowly tailored to serve a compelling government interest.... “[[T]]here is a line at which the government must stop. Penile plethysmography testing crosses it."
• In other words, the Government has made no showing that this exceedingly intrusive procedure has any therapeutic benefit, and none is apparent to us.
• 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 fully cooperate.
• The goal of correctional treatment during supervised release is properly directed at conduct, not at daydreaming.
• The testing could not help to protect the public unless the results were used to justify further detention or more restrictive conditions of release. But that could not occur because McLaurin had already received a fixed term of incarceration followed by a fixed term of supervised release, neither of which could be altered by 2 a poor test score. 
• [W]e also find it odd that, to deter a person from committing sexual crimes, the Government would use a procedure designed to arouse and excite a person with depictions of sexual conduct closely related to the sexual crime of conviction.
• We fail to see any reasonable connection between this defendant, his conviction more than a decade ago, his failure to fill out paperwork, and the government-mandated measurement of his penis.

The case is United States v. McLaurin, No. 12-3514 (2d Cir. 2013).