USA v. WEBER
The Ninth Circuit Court of Appeals today released an opinion in USA v. WEBER, No. 05-50191, a criminal appeal. The panel consisted of William C. Canby, Jr., John T. Noonan, and Marsha S. Berzon, Circuit Judges.
BERZON, Circuit Judge:
Penile plethysmograph testing is a procedure that “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.” Jason R. Odeshoo, Of Penology and Perversity: The Use of Penile Plethysmography on Convicted Child Sex Offenders, 14 TEMP. POL. & CIV. RTS. L. REV. 1, 2 (2004). Although one would expect to find a description of such a procedure gracing the pages of a George Orwell novel rather than the Federal Reporter, plethysmograph testing has become routine in the treatment of sexual. . .
NOONAN, Circuit Judge, concurring:
Judge Berzon’s excellent opinion is deserving of support. I would, however, go beyond it to hold the Orwellian procedure at issue to be always a violation of the personal dignity of which prisoners are not deprived. The procedure violates a prisoner’s bodily integrity by affecting his genitals. The procedure violates a prisoner’s mental integrity by intruding ably related to the nature and circumstances of the offense and the history and characteristics of the defendant. Conditions Nos. 3 to 5, and 8 to 19 have been recommended as a result of the instant offense involving the possession of child pornography, which was collected and stored using his computer, and the history and characteristics of the defendant. . . .