Sex offenders on supervised release and polygraphs

Over at SL&P, Professor Doug Berman has a post about England’s use of polygraphs for sex offenders released into the community after serving their prison sentences.  Doug quotes an article that states, among other things, that: “The national rollout of US-style mandatory polygraph tests for serious sex offenders who have been released into the community after serving their prison sentence follows a successful pilot scheme.”  It is unclear, at least to me, whether the article is referring to offenders who remain on criminal justice supervision (like supervised release in our federal courts) or whether the article refers to offenders who are no longer under any criminal justice supervision, but who are subject to a civil regulatory scheme.

Doug adds this comment:

I find curious that this article speaks of “US-style mandatory polygraph tests”; I am not aware of any US jurisdiction that uses mandatory polygraph testing as part of a program of sex offender monitoring. That said, I would not be at all surprised if some jurisdictions in the US were to consider such a requirement if there is good reason to believe that such testing does a reasonable job of sorting out more (and less) dangerous released sex offenders.

Though I suspect a number of civil rights and civil liberties groups in the US would be quick to express concerns about mandatory polygraph tests of sex offenders, I tend to be open-minded about the use of any form of technocorrections that might serve as a means to both increase public safety and ultimately offender liberty. For if post-release polygraph testing serves as a means to better assess enduring threats from more-dangerous released sex offenders, then other sex offenders can and should be able to rely on such a program to argue for allowing earlier release of some likely less-dangerous sex offenders (e.g., those who download child pornography but have never been involved in any contact offenses).

(Emphasis added.)

I suspect that what the article Doug quotes is referring to is the rather common US practice (at least here in the Nebraska federal court) of imposing polygraph testing on kiddie porn offenders and the like who have completed their prison sentences, but remain on supervised release for criminal justice purposes.   While there are variations, one form of a special condition relating to polygraphs that we often impose reads this way:

The defendant shall submit to an initial polygraph examination and subsequent maintenance testing, at intervals to be determined by the U.S. Probation Officer, to assist in treatment, planning, and case monitoring.  The defendant shall pay for these services as directed by the U.S. Probation Officer.

For what it is worth, my impression is that polygraph testing for kiddie porn offenders and the like is very effective for criminal justice supervision purposes.  I have had at least one case where the testing helped to reveal a potential threat to a child from a kiddie porn offender.

As for imposing polygraph testing on sex offenders who are no longer under criminal justice supervision, that is an entirely different kettle of fish.  It is important to distinguish between sex offenders under criminal justice supervision and sex offenders who are no longer under criminal justice supervision.  For legal purposes, their respective statuses are materially different.

RGK

3 responses

  1. But with the enactment of SORNA and the AWA (Adam Walsh Act), aren’t federal sex offenders permanently required to report their whereabouts, status, and other information? Are they ever really “no longer under criminal justice supervision”? They may not be constantly monitored, as when they are in prison or on parole, but they are still subject to higher standards of notification than non-offenders or even ex-offenders convicted of non-sex crimes.

    I’m not saying polygraph testing then would be in appropriate; as your anecdote reveals, that testing may help prevent future harm to potential victims. What if the testing was just another component of notification that offenders had to undergo as part of SORNA or a parallel state statute? On the one hand, it is an additional inconvenience that the released offender would have to follow, but on the other hand, it may not be too intrusive of a requirement, given the status updates to which they are already subject.

    I do not intend for these thoughts/questions to imply my personal preference for or against SORNA, potential future requirements, or the laws currently in place. But I am curious as to what your thoughts are and where you think the line can (or should) be drawn between those under supervision and those who, SORNA’s requirements notwithstanding, are no longer under supervision.

    Best, Judge, and keep up the great blog.

  2. Ryan,

    A legal realist might say you are correct and that there is practically speaking no difference between a sex offender under criminal justice supervision and a sex offender who is no longer under criminal justice supervision but who is under a regulatory scheme requiring registration and more. However, as a matter of legal formalism, the law as handed down by the Supreme Court continues to make a distinction. And, when the government goes too far under a civil regulatory scheme such that the regulatory restrictions look like criminal justice sanctions, the federal courts will step in. See, for example, my October 17, 2012 decision invalidating certain provisions of Nebraska law.

    All the best.

    RGK

  3. Though I admit not reading the entire opinion (you are quite a loquacious gent!), it is good to see that at least some judges do the right thing.

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