Courts Must Justify Special Conditions of Release That Impact Liberty Interests
The United States Court of Appeals for the Ninth Circuit decided the case of United States v. Cope, 506 F.3d 908 (9th Cir. 2007), on November 5, 2007. At issue were the imposition of a lifetime of supervised release and the special conditions of release. Mr. Cope argued that it was unreasonable for the District Court to sentence him to a lifetime of supervised release. He also challenged certain special conditions of his supervised release on the grounds that he did not receive notice of the conditions before the district court's announcement of the sentence, and that the district court failed to make adequate findings to support the special conditions of release. The specific conditions of release that were contested were the requirements to take “all medications” and submit to plethysmography testing.
Facts of the Case
In September of 2003, San Bernardino Sheriff's Department deputies discovered over 600 images and 20 videos of child pornography on Mr. Cope's home computers, including “videos of sadistic and masochistic acts.” On March 10, 2006, he pleaded guilty to one count of possession of child pornography. He entered his plea pursuant to a plea agreement with the government in which both parties stipulated to a total offense level of 28 under the United States Sentencing Guidelines, including numerous upward adjustments relating to the possession of child pornography. The government conditionally agreed to seek the low end of the guidelines range for incarceration, but made no agreement as to what term of supervised release it would seek. In return, Mr. Cope agreed to waive his statutory right to appeal “any sentence imposed by” the district court, provided certain requirements were met. He retained his right to appeal most of the special conditions of his supervised release.
Following the change of plea hearing, the probation office prepared a pre-sentence report (PSR), using the November 2002 Sentencing Guidelines, recommending a total offense level of 25 and a criminal history category of II. According to the Guidelines, Mr. Cope's prior conviction of attempted sexual assault on a child required a mandatory minimum sentence of 120 months for the current offense. Not included in the PSR report was the fact that the Guidelines also contain a policy statement recommending the statutory maximum term of supervised release for those convicted of sex offenses. The statute in effect at the time provided for a lifetime maximum term of supervised release. In response to the PSR, the government filed a sentencing memorandum recommending that Mr. Cope receive the maximum, lifetime term of supervised release. He filed a memorandum requesting a term of supervised release of less than life, specifically objecting to any special condition of supervised release of which he had not been given notice.
The district court held a sentencing hearing on July 10, 2006. After hearing from the parties, the district court sentenced Mr. Cope (58 years old at the time of sentencing) to 120 months in prison, the statutory minimum, and a lifetime term of supervised release. The court also imposed special conditions of supervised release, including a requirement that he participate in sex offender treatment. As part of that treatment, the district court imposed conditions requiring him to submit to polygraph, penile plethysmography, and Abel testing (Abel Assessment for Sexual Interest) and to take all prescribed medication. Another condition prohibited him from possessing any materials “depicting and/or describing child pornography.” Although the district court notified the parties that it was considering a special condition requiring Mr. Cope to participate in sex offender treatment, it made no mention before its announcement of the sentence of subconditions relating to testing or medication.
Mr. Cope appealed to the Ninth Circuit, contesting that lifetime supervised release was unreasonable and that the district court erred in failing to articulate findings before imposing special conditions of supervised release.
Ruling and Reasoning
The Ninth Circuit held that the lifetime term was not greater than necessary and was reasonable in light of the nature of Mr. Cope's offense. It further held that the district court did not err in failing to specify that he would be required to attend a sex offenders program. However, it was noted that the special conditions of required medication and testing, specifically plethysmography testing, were potentially “grave infringement[s] on liberty.” As such, statutory law requires a “thorough inquiry …before a court.” Therefore, the district court's decision was vacated and remanded to permit all parties to address whether the special conditions were appropriate.
In reaching these conclusions, the Ninth Circuit relied on United States v. Williams, 356 F.3d 1045 (9th Cir. 2004), and United States v. Weber, 451 F.3d 552 (9th Cir. 2006). In Williams, it was held that the special condition of release requiring an individual to take antipsychotic medications is a “grave infringement on civil liberty,” necessitating “thorough inquiry” before the court. In Weber, the Williams rule was extended to conditions of supervised release requiring those in sex offender programs to submit to penile plethysmography. The court reasoned that there must be an explicit finding on the record that the special condition of release “involves no greater deprivation of liberty than is reasonably necessary” to address one of the following: the nature of the crime, the history and characteristics of the defendant, encouragement of deterrence, protection of the public, and provision of rehabilitation. In this inquiry, the government bears the burden of proof. The government argued that Williams did not apply in this case because the former refers only to “antipsychotic” medications. The Ninth Circuit rejoined: “There is nothing in Williams and Weber that would suggest that the holdings were limited to the treatments at issue. To the contrary, both decisions imply that the requirement of special findings applies to any imposed treatment or medication that implicates a particularly significant liberty interest.” The Ninth Circuit specifically noted “chemical castration” to be a goal of medication use in sex offender programs. The court stated that such treatment was “at the extreme end of the spectrum of intrusive medications and procedures” and implicated “particularly significant liberty interests.” The government conceded that, based on Weber, there was a need to argue the requirement for plethysmography before the court.
Discussion
This case involves several matters of importance to forensic psychiatrists. In Cope, the government contended that statutory precedent, as articulated by Williams, addresses only the use of “antipsychotics” and not other classes of medication. The Ninth Circuit refuted this assertion and broadened the interpretation of Williams and Weber by stating that the intent of the statutes is to require special proceedings when any significant liberty interest is at issue. The Ninth Circuit noted that “any and all” psychiatric medications could include antipsychotic drugs, which were defined as a significant liberty interest in Williams. The court further noted that “chemical castration” is often a goal of psychiatric treatment of sex offenders and defined this as a significant liberty interest. Thus, the Ninth Circuit noted that the district court must discuss separately the need for each medication which qualifies as a significant liberty interest before imposing the special condition of release requiring that the individual take “any and all” prescribed medication.
According to case law, as defined by United States v. Cope, release conditions requiring the use of psychiatric medications must provide specific justification for the use of certain categories of treatments which involve “special liberty interests.” Before Cope, such treatments included antipsychotic medications and plethysmography. Cope interpreted Williams and Weber more broadly to include any treatment that involved “special liberty interests.” Drugs used to suppress testosterone levels were specifically named as involving a liberty interest. Thus, when forensic psychiatrists recommend treatment with antipsychotics, plethysmography, drugs to suppress testosterone level, or other interventions that might be perceived as affecting such liberty interests, their justification should include a reasoned explanation as to why a less invasive treatment is not adequate to address one or more of the factors mentioned earlier: the nature of the crime, the history and characteristics of the defendant, encouragement of deterrence, protection of the public, and provision of rehabilitation.
In summary, United States v. Cope broadens the interpretation of liberty interests as they relate to required psychiatric treatment for parolees, both with respect to specific treatments (e.g., testosterone-suppressing agents) and to any treatment that might pose a liberty interest. Given this ruling, forensic psychiatrists should work closely with attorneys and courts to explain the rationale and necessity of any required psychiatric treatment for parolees.
- American Academy of Psychiatry and the Law