Shannon P. Duffy of The Legal Intelligencer reports. Excerpt:
Requiring sex offenders to submit to random lie-detector tests during the probationary period after release from prison is not unconstitutional, but forbidding them from owning a computer may be going too far, a federal appeals court has ruled.
In a pair of opinions handed down this week, the 3rd U.S. Circuit Court of Appeals ruled that a man convicted of possessing child pornography should not have been barred from owning a computer, but upheld another judge’s decision to impose random polygraph testing of a man who confessed to both child pornography and molestation charges. In United States v. Lee, the court found that mandatory polygraph testing of a probationer is allowable since the defendant may still invoke the Fifth Amendment right not to answer a question that could be incriminating.
Writing for a unanimous three-judge panel, visiting Judge Robert J. Ward of the Southern District of New York found that requiring a probationer to submit to random polygraph tests “is reasonably related to the protection of the public, as well as the rehabilitation of the [defendant].”
Ward, who was joined by 3rd Circuit Judges Jane R. Roth and Morton I. Greenberg, found that such polygraph testing “could be beneficial in enhancing the supervision and treatment” that Albert M. Lee will undergo during the three years of supervised release after he serves his 57-month prison term.
Albert Lee was arrested in February 2000 for knowingly transporting child pornography by computer. He was later indicted on additional charges that included enticing a minor by computer to engage in sex. In his guilty plea, Lee confessed that he met female minors via an Internet chat channel titled “GirlsandOlderGuys.” Through online conversations, he met a 15-year old girl, and later met her in person and engaged in sexual acts with her. He also confessed that he had attempted to meet other minors online in order to induce them to perform sexual acts with him, and that he had transmitted child pornography online.
Prior to sentencing, Lee was sent to the Federal Correctional Institution in Petersburg, Va., for a psychological evaluation. In a report, the psychiatrists recommended that Lee “should be required to register as a sex offender, not be allowed contact with his victims, have no contact with persons under the age of 18, not own or operate a personal computer or other devices that allows Internet access, and should not be housed in an area where minors congregate.”
The report also recommended that Lee not be allowed to hire any minors to perform household chores or yard work, and that random searches of his residence be conducted for the presence of sexual risk factors.
But it was the final recommendation that Lee challenged on appeal — that he be required to submit to “frequent polygraph examinations.”
Assistant Federal Defender Christopher S. Koyste argued that the polygraph condition violates Lee’s Fifth Amendment rights because the examiner could ask him about prior uncharged offenses or other potentially incriminating conduct.
Koyste said mandatory polygraph examination could put Lee in a situation in which he would be compelled to incriminate himself by providing the government with information that could be used against him.
But Assistant U.S. Attorney Leonard P. Stark argued that the Fifth Amendment provides no protection against answering questions when the answers pose no realistic threat of future criminal prosecution, even if the answers could serve as the basis for a revocation of supervised release for an offense on which appellant has already been convicted. Judge Ward found that the U.S. Supreme Court has held that defendants have a Fifth Amendment right when being questioned by probation officers, but that they must invoke it.
Koyste argued that polygraph testing substantially increases the coercive nature of the probation proceeding because the defendant is physically restrained by being attached to a polygraph machine, and a former police officer would be administering the test.
As a result, he said, Lee would be forced to choose between making incriminating statements and jeopardizing his liberty by refusing to answer questions.
Ward disagreed, saying Lee still has the right to remain silent.
“Should Lee choose to terminate the interview and exit the room while being questioned, he may do so by having the machine detached from him in a matter of moments. If [he] feels obligated or compelled to stay through the end of the proceeding, we are not persuaded that this differs in any significant way from an ordinary probation interview at which the probationer may feel that same obligation,” Ward wrote.
But Ward cautioned that Lee’s silence should not be used against him — even if his physiological reaction is detected by the machine.