New York Federal Criminal Practice Blog
January 25, 2008

EDNY Judge Imposes Several Restrictive Supervised Release Conditions on Sex Offender, Including Polygraph Testing and GPS Monitoring

Illustrating the complexity of striking a balance between liberty interests and public protection in sex offender cases, an EDNY judge imposed a series of restrictive supervised release conditions on a defendant convicted of possession of child pornography in United States v. Porter, 03 CR 129 (CPS), 2008 WL 117839 (E.D.N.Y. January 3, 2008).  They included mental health treatment with polygraph testing, a limit of one personal Internet-capable device, a ban on associating with children under the age of 18, and monitoring through a GPS device and undercover surveillance.

The controversial condition of polygraph testing as a component of sex offender mental health treatment had been approved by the Second Circuit in United States v. Johnson, 446 F.3d 272 (2d Cir. 2006), a case involving someone convicted of sexual predation of minors.  The Johnson court concluded that polygraph testing would help "penetrate deception and encourage an offender to confront his own motivations and behaviors," an observation quoted with approval in Porter.  Neither the Johnson nor Porter courts found a Fifth Amendment problem with the condition, "because [the defendant] can challenge the use of any incriminating statements made during the course of the polygraph examination in any court proceeding."  But having the option to challenge the use of the statements does not mean the challenge will automatically be successful, and neither court addresses the potential success of a challenge to derivative use of such statements or their use in the context of a civil commitment proceeding, where the standard of admission would be lower than in a criminal one.  Moreover, many psychologists would condemn as counter-productive an effort to police the therapeutic process in such an intrusive, minute and unreliable fashion.  While both the Johnson and Porter courts purport to view the polygraph testing as an aid to mental health treatment, in reality, it is less about promoting therapy than keeping tabs.
Also of interest in this decision is the court's handling of the Internet access issue.  The defendant would be limited to accessing the Internet through one Internet capable device, loaded with filtering software.  Until Porter acquired such a device, however, the court permitted him to access the Internet at the public library, upon 24 hours notice to his probation officer, and subject to undercover surveillance and a prohibition on disabling the filtering software on the library terminal.  Noting that "the software results in a degree of 'underblocking,'" the court nonetheless held that "accessing the Internet at a public library still provides a controlled environment in which Porter will be least likely to access pornography."

It bears noting that this case involved a violation of supervised release, and a particularly non-compliant supervisee.  The restrictions in the case, therefore, represent a painstaking effort to avoid punishing the defendant with additional incarceration (he was given a four-month prison sentence on the violation out of a maximum two years, and a recommended guideline range of three to nine months), but at the same time diminishing the inclination and opportunities for recidivism.  Porter's (and indeed, Johnson's) non-compliance are strong grounds to oppose the imposition of polygraph testing and GPS monitoring as a matter of routine in sex offender cases.

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