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Name: United States v. Weber
Case #: 05-50191
Court: US Court of Appeals
District 9 Cir
Opinion Date: 06/20/2006

Penile plethysmograph testing, as a condition of supervised release, was imposed without the necessary evidentiary record, justification, and findings. 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.” Although it is a common condition of federal supervised release, the Ninth Circuit here held that because of the nature of the liberty interests involved, the burden is on the government, not the defendant, to establish at the time of sentencing that plethysmograph testing is both reasonably necessary to accomplish one or more of the purposes of supervised release, and that it involves no greater deprivation of liberty than is reasonably necessary. Judge Noonan wrote a concurring opinion expressing the view that “the Orwellian procedure at issue” is always an unconstitutional violation of personal dignity and should never be permitted: “By committing a crime and being convicted of it, a person does not cease to be a person. A prisoner is not a mere tool of the state to be manipulated by it to achieve the purposes the law has determined appropriate in punishment … There is a line at which the government must stop. Penile plethysmography testing crosses it.”