Sixth Circuit panel splits over penile penology procedures

Though the defedant’s challenge to the possible use of penile plethysmography (PPG) add a prurient element to the case, the Sixth Circuit’s split panel decision today in US v. Lee, No. 06-5848 (6th Cir. Sept. 13, 2007) (available here), turns on a number of interesting legal process issues.

In Lee, the majority dismisses as unripe the defendant’s challenge to possible PPG as a supervised release conditions, in part because this condition would not be applicable until the defendant finishes his prison term and PPG many not be used when that occurs more than a dozen years from now.   Judge Batchelder dissents to argue that the defendant’s claim should be dismissed with prejudice because of an appeal waiver.