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Can polygraph be used to supervise sex offender?

Being the lowest of the low, sex offenders are rarely cut any slack in the criminal justice system.

There’ll be no tears shed in this corner over that fact of life.

The special treatment seems more than justified since sex offenders are about four times more likely than non-sex offenders to be arrested for another sex crime after getting out of prison.

But one New Mexico defendant, once imprisoned for abusing a child, rails against the notion that he’s being subjected to polygraph testing as a condition of his supervised release.

Judges typically view with skepticism the usefulness of the polygraph, often treating the device as some unwanted relic of the Spanish Inquisition.

Yesterday, however, the 10th Circuit signed off on a district judge’s order requiring Toby Begay to undergo clinical polygraph testing as he transitions back to society.

In 1996, Begay pled guilty to the aggravated sexual abuse of a child. The incidents underlying his conviction took place within the Navajo Nation.

With other charges, the U.S. District Court in New Mexico sentenced Begay to 196 months’ imprisonment and 60 months’ supervised release.

At the end of his term of imprisonment, Begay was released to a halfway house with the anticipation that he would return to the Navajo Nation in March 2010.

The U.S. Probation Office (USPO), not satisfied with his original sentence, filed a motion to add more special conditions of supervised release.

The conditions sought by the government were the typical laundry list: a waiver of confidentiality regarding mental health treatment; prohibition of sexually explicit material; submission to reasonable searches of person, property and vehicles; and prohibition on contact with children under eighteen without prior written permission of the probation officer.

One final special condition caught Begay’s attention, however. The government wanted Begay to submit to clinical polygraph testing as part of his sex offender treatment and other risk assessment testing.

Begay objected, arguing that the polygraph testing condition is invalid because the test is unreliable, subject to manipulation and results in an unconstitutional deprivation of his liberty.

Monday, three judges of the 10th Circuit overcame their instinctive skepticism and concluded that polygraph testing is a valid condition of Begay’s supervised release.

“Polygraph testing could … encourage Begay to be truthful with his probation officer, and it could alert the USPO to potential problems which would prompt further supervisory inquiry,” the court said.

Shooting down Begay’s constitutional argument, the court explained that “[w]e have held that special conditions constitute a greater than necessary deprivation of liberty when they infringe upon fundamental liberty interests, such as familial association. Although polygraph testing may be invasive and anxiety-provoking, it does not rise to this level.” (U.S. v. Begay

- Pat Murphy

patrick.murphy@lawyersusaonline.com

One comment

  1. I am disabled and have a limited income. I have taken at least 6 polygraph exams within the last 3 years & each test cost me $225.00.Does the local government have the right to take away money given to me by federal social security fund?

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