Ninth Circuit establishes heightened procedural requirements for imposition of penile plethysmograph testing as a condition of supervised release

In United States v. Weber, the Ninth Circuit (Berzon, J.) vacated a supervised release condition requiring that the offender submit to penile plethysmograph testing (the opinion describes the procedure as one that you would "expect to find * * * gracing the pages of a George Orwell novel rather than the Federal Reporter"), reasoning that additional procedural requirements had to be satisfied before such testing could be required.  The court held that the additional procedural protections were required because of the substantial liberty interest at stake.  Although the court does not state expressly that the procedures are required by the constitution, it relied heavily on cases establishing the due process standards for involuntary administration of anti-psychotic medication.

Judge Noonan concurred, but stated that he would have held that the procedure "to be always a violation of the personal dignity of which prisoners are not deprived."

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