United States v. Matthew Henry Weber

Opinion by Judge Berzon; Concurrence by Judge Noonan

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 1 has become routine in the treatment of sexual offenders and is often imposed as a condition of supervised release. We address the procedures that must be followed before a district judge may impose such a requirement on a criminal defendant.

I.

In May of 2001, an electronics store technician discovered several images of child pornography on the hard drive of a computer that the defendant, Matthew Henry Weber, had brought in for repairs. The manager of the store informed the Los Angeles Police Department of the images, which…

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 images into *571 his brain. The procedure violates a prisoner’s moral integrity by requiring him to masturbate.

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. The prisoner retains his humanity and therefore has purposes transcending those of the state. A prisoner, for example, cannot be forced into prostitution to aid the state in securing evidence. A prisoner, for example, cannot be made to perjure himself in order to assist a prosecution. Similarly, a prisoner should not be compelled to stimulate himself sexually in order for the government to get a sense of his current proclivities. There is a line at which the government must…

451 F.3d 552 UNITED STATES of America, Plaintiff-Appellee, v. Matthew Henry WEBER, Defendant-Appellant. No. 05-50191. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 13, 2006. Filed June 20, 2006. COPYRIGHT MATERIAL OMITTED Maria Stratton, Federal Public Defender, and Jonathan D. Libby, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant Matthew Henry Weber. Debra Wong Yang, United States Attorney, Thomas P. O'Brien, Assistant United States Attorney, and Jennifer Corbet, Assistant United States Attorney, Los Angeles, CA, for plaintiff-appellee United States of America. Appeal from the United States District Court for the Central District of California; Dean D. Pregerson, District Judge, Presiding. D.C. No. CR-03-00049-DDP. Before CANBY, JR., NOONAN, and BERZON, Circuit Judges. Opinion by Judge Berzon; Concurrence by Judge Noonan BERZON, Circuit Judge. 1 Penile plethysmograph testing is a procedure that "involves placing a pressuresensitive 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."…