Federal Judiciary

Forced medication (like chemical castration) to discourage criminal behavior and ensure good citizenship? Sound like A Clockwork Orange? Judge Thomas and the Ninth thinks so too -- in a particularly thoughtful decision that discusses the important liberty interests implicated by mandatory medication as a condition of supervised release. See United States v. Cope, __ F.3d __, 2007 WL 3243931 (9th Cir. Nov. 5, 2007), decision available here.

Players: Fought tooth and nail, with many important victories, by CD Cal AFPD Elizabeth Newman.

Facts: Fifty-eight year old Cope had a prior conviction for attempted sexual assault on a child. 2007 WL 3243931, *2. Twenty years later, sheriffs found on Cope?s computers twenty videos and over six hundred images of child porn, including S&M. Id. at *1. After a guilty plea the district court gave ten years custody and supervised release for life (based on a guideline), imposed conditions of supervised release that included polygraph, penile plethysmograph, and Abel testing, and ordered Cope take all prescribed medication. Id. at *2 [Subtext ? chemical castration. See id. at *7 n.5].

Issue(s): ?[W]e consider . . . whether the . . . imposition of a lifetime of supervised release was reasonable and whether the district court was required to articulate findings before imposing certain special conditions of supervised release pertaining to medication.? Id. at *1.

Held: ?Under the circumstances presented by this case, we conclude that the term of supervised release imposed was reasonable, but that the district court should have articulated findings before imposing special conditions of release that would implicate a particularly significant liberty interest.? Id. at *1.

Of Note: As an initial matter, Cope has valuable language on the need to strictly construe terms of plea agreements against the drafter ? the government. Id. at *4. The case is also one of the first Ninth Circuit decisions on the need to articulate Section 3553 factors post-Rita. Id. at *4-*5

This Judge Thomas decision is characteristically well-reasoned and written. In an important new rule, he describes the heightened liberty interest in avoiding forced medication, and holds that this interest extends to conditions of supervised release. Id. at *7. When ?take your meds? is a condition of supervised release, there must be special findings, the drugs must be related to the offense conduct, and it must be tied to the Section 3553 analysis. Id. at *7-*8.

Cope also reaffirms Judge Berzon?s Weber rule, that requires special findings before plethysmograph testing. Id.

Finally, the decision solidifies notice protections: when a court imposes conditions of supervised release that are neither mandatory, or recommended in the guidelines, advanced written or oral notice must be provided to the defense. Id. at *6.

How to Use: One disappointment in Cope is the Court?s tolerance of lifetime supervised release for simple possession of child porn. Id. at *5. First, a new rule: the Court reviews ?for reasonableness the district court?s decision to sentence? a defendant to a particular term of supervised release. Id. at *5. Under that deferential review, Judge Thomas (perhaps reluctantly?) upholds this inane term of supervision in this case. [ed. note: felons in possession get three years supervised release, as do bank robbers ? but straight possession of porn gets life?]

Note that there are important facts in Cope that may be distinguishable in future cases: i. Cope had a contact sex prior, ii. he demonstrated a sexual interest in minors for a two-decade span, iii. Cope will be as old as Senator McCain on his release from prison, so a specific term supervised release would be akin to a life sentence anyway. Id. at *5. Cope is not a blank check for lifetime supervised release on straight porn possession cases ? keep the fight alive.

For Further Reading: Judge Sidney Thomas? decisions ? and too-frequent dissents ? are always worth a read. They are persuasive, and his opinions are typically many decades hipper that those of his colleagues on the bench. For example, in Cope he offers a wry and chilling reference to A Clockwork Orange when contemplating the prospect of chemical castration as a condition of supervised release. Id. at *7 n.5. In Kelley, his (correct) dissent cites a classic Monty Python skit to explain e-mail spam. See Kelley blog here. As a bonus, Judge Thomas is usually right ? he ?gets? technology, truly believes in the Fourth (see Comprehensive Drug Testing, 473 F.3d 915, 944 (2006) (correct again!)), and often joins the likes of Berzon, Paez, Pregerson, Reinhardt, and Wardlaw. Plus, he?s got the best vinyl collection in the Ninth.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org