Opinion

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES

Daniel G. McNamara Gregory F. Zoeller

Patrick L. Proctor Attorney General of Indiana

Fort Wayne, Indiana

David A. Arthur

Stephanie L. Rothenberg

Deputy Attorneys General

Indianapolis, Indiana

In the

Indiana Supreme Court Apr 16 2014, 10:17 am

No. 02S05-1305-PL-364

DAVID BLEEKE,

Appellant (Plaintiff below),

v.

BRUCE LEMMON, IN HIS CAPACITY AS

COMMISSIONER OF THE INDIANA

DEPARTMENT OF CORRECTION; THOR R.

MILLER, AS CHAIRMAN OF THE INDIANA

PAROLE BOARD; VIRGIL R. MADDEN, AS

VICE CHAIRMAN OF THE INDIANA PAROLE

BOARD; RANDALL P. GENTRY, AS A MEMBER

OF THE INDIANA PAROLE BOARD; VALERIE J.

PARKER, AS A MEMBER OF THE INDIANA

PAROLE BOARD; CHARLES F. MILLER, AS A

MEMBER OF THE INDIANA PAROLE BOARD;

MIA KELSAW, AS A PAROLE SUPERVISOR FOR

THE INDIANA PAROLE BOARD, FORT WAYNE

DISTRICT 2; DAMITA VANLANDINGHAM, AS A

PAROLE SUPERVISOR FOR THE INDIANA

PAROLE BOARD, FORT WAYNE DISTRICT 2;

SUSAN FEASBY, AS A PAROLE SUPERVISOR

FOR THE INDIANA PAROLE BOARD, FORT

WAYNE DISTRICT 2,

Appellees (Defendants below).

Appeal from the Allen Superior Court, No. 02D01-1005-PL-164

The Honorable Nancy Eschcoff Boyer, Judge

On Petition to Transfer from the Indiana Court of Appeals, No. 02A05-1201-PL-25

April 16, 2014

David, Justice.

In this case, a parolee convicted of a sex crime against an adult female challenges a

number of his parole conditions, including several that prohibit him from having contact with

children—even his own. He also challenges the constitutionality of a state treatment program for

sex offenders that he must participate in as part of his parole, claiming that under the program he

is required to provide self-incriminating statements about his underlying offense and sexual

history without immunity and under the threat of being found in violation of his parole.

We conclude that some of his parole conditions are impermissible on several grounds, but

find no fault with the remainder. We likewise find no constitutional flaw in the state treatment

program.

Facts and Procedural History

On January 31, 2005, David Bleeke was convicted of residential entry and attempted

criminal deviate conduct in Allen County, Indiana, and sentenced to ten years in the Indiana

Department of Correction. His victim was an adult woman who was, at the time of the crime,

over the age of twenty-one. Bleeke was incarcerated until March 19, 2008, when he was

released to a community transition program. Bleeke completed the community transition

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program on April 24, 2009, and was released to statutorily mandated parole. He is to remain on

parole until 2015.

Bleeke’s Parole Conditions

The conditions of Bleeke’s parole were spelled out in a standardized form initially

provided to him before his assignment to the community transition program (and then again

when he was released on parole): State Form 49108. Those conditions, among other things,

required Bleeke to participate in, and successfully complete, a court-approved sex offender

treatment program: the Indiana Sex Offender Management and Monitoring Program

(“SOMM”). As part of the SOMM program, Bleeke was required to admit guilt for his offense;

refusal to do so, or to otherwise deny responsibility for the offense, would result in him being

unsuccessful in his treatment and would violate one of his parole conditions. He was also

required to disclose any prior sex-related crimes by way of a “sexual history disclosure exam,”

administered under a polygraph required by the parole conditions. The conditions relevant to

these requirements provided that:

1. You shall enroll in, actively participate in and successfully

complete an approved sex offender treatment program. You must

maintain steady progress toward all treatment goals and may not

change treatment providers without prior approval of your parole

agent. Prompt payment of any fees is your responsibility.

2. You shall sign any waiver of confidentiality, release of

information, or any other documents required to permit your parole

agent and/or behavioral management or treatment providers to

examine any and all records, to collaboratively share and discuss

your behavioral management conditions, treatment progress, and

parole stipulation needs as a team. This permission may extend to:

(1) sharing your relapse prevention plan and treatment progress

with your significant others and/or your victim and victim’s

therapist as directed by your parole agent or treatment provider(s),

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and (2) sharing of your modus operandi behaviors with law

enforcement personnel.

21. You shall actively participate in offense specific mental health

treatment program(s) approved and ordered by your parole agent at

your own expense. You will contact the approved/designated

provider within seven (7) days of release to parole to schedule an

appointment unless an appointment was already scheduled prior to

release on parole. Treatment is considered a behavioral

management requirement of your parole and may include

plethysmograph or polygraph testing or similar

assessment/management tools. Termination from treatment or

non-compliance with other required behavioral management

requirements will be considered a violation of your parole release

agreement. Subsequent treatment referrals, if any, will be at the

direction of your parole agent. Should you request and be

permitted to change treatment providers, stricter stipulations may

be applied.

22. You shall participate in and complete periodic polygraph

testing at the direction of your parole agent or any other behavioral

management professionals who are providing treatment of [sic]

assisting your parole agent in monitoring your compliance with

your parole rules and special stipulations.

(App. at 159–60.)

As part of Bleeke’s community transition program, in October 2008 Bleeke was ordered

to take an “instant offense” polygraph, asking him if he committed the acts underlying his prior

conviction. The examination process required Bleeke to sign a form stating that he requested the

polygraph “without duress, coercion, force, intimidation, or promises of immunity,” authorizing

the examiner to share the results with his probation office “and other applicable agencies for

whatever purposes they may determine,” and acknowledging that the examiner was obliged to

comply with “any and all State and Federal laws involving the administration of polygraph

testing, which includes proper statutory disclosure and reporting requirements.” (App. at 148,

158.) Bleeke refused to sign the form, but offered to proceed with the polygraph examination

4

anyway—instead the examiner stopped the examination and reported Bleeke’s non-compliance.

Bleeke was ordered to spend a weekend in jail for violating the conditions of the program.

Bleeke was again ordered to conduct an instant offense polygraph after his release from

the weekend in jail; this time he signed the consent form and completed the examination. He

stated that he completed the form this time because “I did not want to go to jail or back to

prison.” (App. at 148.) The polygraph examiner concluded that Bleeke “ha[d] not told the entire

truth concerning his alleged sexual contact.” (App. at 313.) As a result, his provider labeled him

as uncooperative and concluded that because he “continues to maintain his innocence to the

charges he was convicted for . . . counseling for sex abuse issues is not appropriate.” (App. at

314.) Bleeke was then assigned to another provider, with whom he continues to participate,

although he has been told that he cannot complete the SOMM program unless he admits his

guilt.

Form 49108 also contained limitations on Bleeke’s conduct aimed at restricting his

contact with children and establishing intimate relationships with other adults. These conditions

were imposed by the Indiana Parole Board without any prior individualized assessment of their

applicability to Bleeke, but were ordered under the auspices of the Parole Board’s authority to

impose additional parole conditions that are “reasonably related to the parolee’s successful

reintegration into the community and not unduly restrictive of a fundamental right.” See Ind.

Code § 11-13-3-4(b) (2010). The conditions relevant to these restrictions provided that:

4. You shall not touch, photograph (still or moving), correspond

with (via letter or e-mail), and/or engage in “small talk” or

unnecessary conversation with any child, including your own,

either directly or via third party, or attempt to do any of the

preceding without written approval in advance by your parole

agent in consultation with your treatment provider. You must

never be in any vehicle or any residence with any child, including

your own, even if other adult(s) is/are present, without written

approval in advance by your parole agent in consultation with your

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treatment provider. You must report any inadvertent contact with

children to your parole agent within twenty-four (24) hours of

contact.

5. You must not reside, visit or be within one thousand (1,000) feet

of public parks with playgrounds, pools, rides, and/or nature trails;

schools, day care centers, public swimming pools, public beaches,

theaters, or any other place where children can reasonably be

expected to congregate.

15. You shall refrain from “cruising” activity, frequenting areas

where potential victims can be encountered.

17. You shall not stay overnight with any adult and/or establish an

intimate and/or sexual relationship with any adult without prior

approval by your parole agent and treatment clinician. You must

also report whether the person you are having a relationship with

has children under the age of eighteen (18) and/or if children under

the age of eighteen (18) reside in the person’s home.

19. You shall not possess any items on your person, in your

vehicle, in your place of residence, or as a part of your personal

effects which attract children or that may be used to coerce

children to engage in inappropriate or illegal sexual activities. You

will not attempt to persuade, whether by words or actions or both,

a child to enter a vehicle, structure, or enclosed area, or to

otherwise relocate.

20. You shall not join or be associated with any group which

promotes activities involving children under eighteen (18) years of

age, such as, but not limited to: church or religious youth groups,

Boy Scouts, Girl Scouts, Cub Scouts, Brownies, YMCA, YWCA,

youth sports teams, public parks, etc.

(App. at 159–60.)

Bleeke was married at the time of his conviction, and stayed married through his

incarceration. He and his wife had a son while he was incarcerated, and while Bleeke was in

prison he was allowed visits with his wife and son. They had a second son shortly after he was

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released on mandatory parole. But once he was released from prison, the conditions on Form

49108 prohibited him from having contact with (or photographs of) his eldest son. They also

prohibited him from being present at the birth of his second son and from having a relationship

with the child (although he was allowed a single photograph). And when Bleeke was released

from the community transition program, his parole conditions also prohibited him from living

with his wife and children.

Bleeke’s Litigation

Bleeke filed suit in the United States District Court for the Northern District of Indiana,

seeking to enjoin the enforcement of the parole conditions restricting access to his children and

wife or, alternatively, requesting that the Parole Board first conduct some sort of hearing as to

whether those conditions were warranted. Bleeke v. Server, 2010 WL 299148 at *1 (N.D. Ind.

January 19, 2010). The federal court dismissed some of Bleeke’s claims, but found that the

Parole Board “had a constitutional obligation to provide some procedural safeguard allowing for

an individualized determination as to [Bleeke’s] risk to his own children before imposing

[Bleeke’s] parole conditions,” and issued a preliminary injunction enjoining enforcement of

those conditions until such an assessment was made. Id. at *13.

As a result of the federal court order, the Parole Board held a special hearing on May 3,

2010, concerning Bleeke’s parole conditions. Bleeke’s SOMM counselor provided a written

statement to the Parole Board, saying that “Bleeke has given no reason to believe he is at risk to

molest a child. He denies any sexual attraction to children. He also denies deviant sexual

fantasies and denies intent to molest a child.” (App. at 318.) She also stated that his denials

7

were supported by SOMM-ordered polygraphs. Bleeke testified himself at the hearing and

repeated those denials. 1 Bleeke’s parole supervisor agreed that there was no evidence that he

presented a risk to children, and Bleeke’s wife testified that Bleeke had never been inappropriate

with, or harmed, his children.

The director of the SOMM program testified that the actuarial program used by SOMM

for its determination of recidivism rates did not assess the probability that the recidivistic

tendency of a particular offender whose initial victim was an adult would later manifest in an act

against a child (a shift in behavior known as “crossing-over”). He also acknowledged that for

Bleeke to cross-over in a way that was dangerous to his sons, he would have to cross-over in a

number of factors: victim gender, age, and familial relation. He conceded that evaluative

processes existed that could provide a more dynamic risk assessment as to the likelihood of such

an occurrence, but one had not been done on Bleeke; nor could he speak personally as to the risk

Bleeke posed to children because he had not evaluated Bleeke. He would, he said, rely on

Bleeke’s SOMM counselor.

No witnesses or evidence were presented that showed Bleeke had posed, or would pose, a

risk to his children or any other children. And Bleeke again maintained his innocence to the

underlying attempted criminal deviate conduct conviction. Nevertheless, after the hearing the

Parole Board again imposed all of the same parole conditions on Form 49108. It requested

1

The hearing was not transcribed, but the Parole Board provided Bleeke with a DVD of the proceeding

and certified its accuracy. That DVD is part of the record on appeal.

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Bleeke’s counseling team provide the Parole Board an additional assessment in ninety days

detailing Bleeke’s compliance with his treatment protocols. 2

Bleeke then filed suit in the Allen County Superior Court, seeking a declaratory judgment

as to the constitutionality of those parole conditions that prohibited him from seeing his children

or being in the same home as his wife, along with the statutes underlying those parole conditions.

He alleged violations of the Due Process and Equal Protection Clauses of the Fourteenth

Amendment to the United States Constitution, and Article 1, sections 12 and 23 of the Indiana

Constitution. He similarly claimed that many of the conditions and supporting statutes were

unconstitutionally vague, overbroad, or unduly restrictive of his fundamental right to association.

He sought a preliminary injunction barring the Parole Board from enforcing those parole

conditions related to restricting his presence near children and establishing a relationship with his

wife. Bleeke also challenged the constitutionality of the entire SOMM program, claiming that

the requirement for him to admit his guilt and prior offenses and take polygraph examinations,

with no promise of confidentiality or immunity, violated the Fifth Amendment to the United

States Constitution.

The trial court granted his request for a preliminary injunction, concluding that the

challenged provisions “unconstitutionally impinge on his fundamental right to familial integrity”

in a way that “has not been narrowly tailored to serve any State interest.” (App. at 78.) It

2

It is not clear from the video of the proceeding—which cuts off during the Parole Board’s vote—

whether Bleeke’s compliance with “proper protocol and procedures” relates to his refusal to admit

responsibility for his underlying offense or the standard protocols for maintaining communications with

his parole officers. Both were discussed and debated extensively by the Parole Board during the hearing,

at far greater length and depth than Bleeke’s risk to commit sexual offenses against children.

9

therefore enjoined the Parole Board from enforcing Conditions 4, 5, 17, and 19 with respect to

Bleeke’s wife and children, but otherwise left the remaining conditions in place.

Bleeke then filed a motion for summary judgment as to the remainder of his claims. The

trial court extended and converted the preliminary injunction into a permanent injunction,

enjoining the Parole Board from ever enforcing Conditions 4, 5, 17, and 19 with respect to

Bleeke’s family, after noting that the Parole Board did not contest that claim in its response to

Bleeke’s motion for summary judgment. It also limited the enforceability of Condition 4’s

requirement to report any “inadvertent contact” with children other than his own, in accordance

with appellate interpretation of similar provisions, but otherwise denied Bleeke summary

judgment on his other claims and instead granted it in favor of the Parole Board. Bleeke

appealed.

The Court of Appeals reversed that portion of the trial court’s order granting summary

judgment in favor of the Parole Board and denying summary judgment to Bleeke. Bleeke v.

State, 982 N.E.2d 1040, 1054 (Ind. Ct. App. 2013). It concluded that the statute imposing

Condition 5 on Bleeke did not apply as it was enacted after Bleeke committed his underlying

offense; that the statute classifying Bleeke as an offender against children was unconstitutionally

overbroad as it was applied to Bleeke; that the Parole Board failed to ensure that Bleeke’s parole

conditions related to protecting children were reasonably related to his successful reintegration

into the community as required by statute; and that certain other parole conditions were

unconstitutionally vague or overbroad. Id. at 1047–53. It also held that the SOMM program

violated Bleeke’s Fifth Amendment rights because it forced him to provide potentially

incriminating statements at the risk of violating his parole or facing future criminal charges. Id.

at 1053–54. We granted transfer and thereby vacate the Court of Appeals opinion, with the

exception of those portions we summarily affirm as explained below. Bleeke v. State, 987

N.E.2d 521 (Ind. 2013) (table); Ind. Appellate Rule 58(A).

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Standard of Review

An appellate court reviews the award or denial of summary judgment through the same

lens as a trial court. Haegert v. Univ. of Evansville, 977 N.E.2d 924, 937 (Ind. 2012). Summary

judgment is only appropriate when the moving party shows that there are no genuine issues of

material fact with respect to a given issue or claim. Id. at 936; Ind. Trial Rule 56(C). The non-

moving party then bears the burden of coming forward with evidence designated to show that a

genuine issue of material fact does exist. Town of Avon v. W. Cent. Conservancy Dist., 957

N.E.2d 598, 602 (Ind. 2011). All designated evidence and reasonable inferences must be

construed in favor of the non-moving party, and doubts resolved against the moving party. Id.

But when the facts are undisputed and the question is only one of law, our review is de novo. Id.

Discussion

Bleeke’s issues on appeal can be summarized into three primary categories. He

challenges the specific conditions restricting his access to minors as being unconstitutional, and

argues that others fail to comply with certain statutory requirements. He also argues that several

of the parole statutes are facially unconstitutional in the manner by which they classify sex

offenders. And, finally, he argues that the SOMM program is both facially unconstitutional and

unconstitutional as applied to him.

The Parole Board, in a limited cross-appeal, argues that Bleeke has inappropriately

named certain defendants in this action, and that regardless, Bleeke has waived all of his

11

arguments. 3 The Parole Board concedes, however, that it no longer seeks to impose the parole

conditions in a manner which would restrict Bleeke’s relationships with his children and wife.

There is therefore no issue before this Court relating to the trial court’s order permanently

enjoining enforcement of that aspect of those conditions.

I. Bleeke’s Additional Conditions from Form 49108

The Indiana Code provision governing the conditions of parole for parolees mandates

certain conditions be assigned for sex offenders. See Ind. Code § 11-13-3-4(g)(2). It also lays

out other conditions that may be assigned by the Parole Board. See generally Ind. Code § 11-13-

3-4. And the provision also provides that “[t]he parole board may also adopt, under IC 4-22-2,

additional conditions to remaining on parole and require a parolee to satisfy one (1) or more of

these conditions.” Ind. Code § 11-13-3-4(b). However, “[t]hese conditions must be reasonably

related to the parolee’s successful reintegration into the community and not unduly restrictive of

a fundamental right.” Ind. Code § 11-13-3-4(b).

A. Conditions 4, 5, 8, 12, 17, 19, 20, and 22

Bleeke argues that the additional conditions imposed upon him through State Form 49108

fail one or both of those two statutory requirements—that they are either not reasonably related

to his successful reintegration into the community and/or they are unduly restrictive of a

3

With respect to the portion of the Parole Board’s cross-appeal addressing the propriety of the named

defendants, we have replaced those individuals who are no longer members of the Indiana Parole Board

with the current members. Ind. Trial Rule 25(F). And we agree that the State may not be named as a

party-defendant to this action, see Harp v. Ind. Dep’t of Highways, 585 N.E.2d 652, 660 (Ind. Ct. App.

1992), but we summarily affirm the Court of Appeals with respect to the Parole Board’s waiver claim,

Ind. Appellate Rule 58(A)(2).

12

fundamental right. He specifically notes Conditions 4, 5, 8, 12, 15, 16, 17, 19, 20, and 22 as

being such additional conditions.

Conditions 4, 5, 17, 19, and 20, which we have laid out above, are all broadly aimed at

restricting Bleeke from being near, communicating with, or associating with, children (and, until

the injunction became permanent, from being near, communicating with, or associating with, his

own children). Bleeke argues that there is no evidence whatsoever that he poses a risk to any

minor, and that these conditions therefore are not reasonably related to his successful

reintegration into the community.

We agree with Bleeke. None of the evidence presented at his individualized hearing or

designated before the trial court in support of—or in opposition to—his motion for summary

judgment indicates that Bleeke is, was, or will be a threat to children—either his own or

otherwise. In fact, the evidence uncontrovertibly shows the opposite: that Bleeke is

affirmatively not a threat to children, nor is he likely to be. The Parole Board’s only evidence to

the contrary apparently consisted of a general study of cross-over offenders. But we note, as the

Court of Appeals did, that the study itself was not made part of the record on appeal. Bleeke,

982 N.E.2d at 1049. This makes it impossible to assess whether the study raises a genuine issue

of material fact as to the likelihood of Bleeke himself crossing over from an adult victim to a

child victim. 4

4

But this same study was apparently presented before the federal district court in Bleeke’s first litigation,

which rejected its applicability to Bleeke as being “far from overwhelming.” Bleeke, 2010 WL 299148 at

*7. “[E]ven assuming the study was completely reliable, it still leaves a sizeable number of adult sex

offenders who would never look to children as targets of repeat misconduct, let alone their own children.”

Id.

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The Parole Board points to Jackson v. State, 816 N.E.2d 868 (Ind. Ct. App. 2004), and

argues that similar conditions (assigned as terms of a defendant’s probation) were upheld as

being reasonably related to the defendant’s rehabilitation and protecting the community. We

first note that probation conditions are a matter of discretion afforded to the trial court, and are

conditions assigned—as part of the judiciary’s function in setting sentences—in lieu of

imprisonment. Griffin v. Wisconsin, 483 U.S. 868, 874 (1987). In that way, probation serves as

“simply one point . . . on a continuum of possible punishments,” and so probation restrictions

“are meant to assure that the probation serves as a period of genuine rehabilitation and that the

community is not harmed by the probationer’s being at large” because the offender would

otherwise be imprisoned and away from the public. Id. at 874–75; Smith v. State, 779 N.E.2d

111, 117 (Ind. Ct. App. 2002) (probation conditions “must be reasonably related to the treatment

of the defendant and the protection of public safety”), trans. denied.

Bleeke’s conditions of parole, however, are a function of the executive (i.e., the Parole

Board, in imposing given conditions and probation officers in enforcing them) and the legislature

(i.e., the General Assembly’s codification of statutes governing what those conditions may be),

and must be carried out when an offender has completed a shortened portion of an imposed

sentence. And under those functions and that statutory structure, additional parole conditions

like those at issue here must be “reasonably related to the parolee’s successful reintegration into

the community and not unduly restrictive of a fundamental right.” In other words, considerations

of “public safety” or “protecting the community,” standing alone, cannot save a parole condition

that fails to meet one of the two statutory requirements found in Ind. Code § 11-13-3-4(b). Thus,

to the extent the probation conditions in Jackson were reasonably related to public safety and that

relation justified their imposition, such analysis is inapplicable here.

Moreover, the defendant in Jackson challenged probation conditions prohibiting contact

with persons under the age of eighteen and dating relationships with persons who have minor

children—but he was convicted of raping a nineteen-year-old woman in front of her two-year-

14

old son. Jackson, 816 N.E.2d at 871. That the Court of Appeals would affirm those conditions

in light of the nature of Jackson’s crime is not surprising, as they were tailored towards

preventing such a circumstance or environment from arising again. But for that same reason,

Jackson is not persuasive here, where Bleeke’s conviction was for attempted criminal deviate

conduct in which his victim was an adult woman, over the age of twenty-one, and the conduct

occurred while the two were alone after meeting in a bar—and Conditions 4, 5, 17, and 19 are

unrelated to preventing such a circumstance from recurring. In short, Jackson is inapposite and

does not support the Parole Board’s position with respect to Bleeke.

Without any evidence of Bleeke posing a threat to children (and in the face of clear

evidence to the contrary), Conditions 4, 5, 17, 19, and 20 of Bleeke’s parole cannot be viewed as

“reasonably related to [Bleeke’s] successful reintegration into the community.” Ind. Code § 11-

13-3-4(b). As he says, the conditions isolate Bleeke from not only minors, but “other, non-

immediate family members and . . . friends and acquaintances generally,” because “[m]any

people have children and most social interactions include children.” (Appellant’s Br. at 36.)

“Parolees are sharply curtailed in their ability to form and maintain friendships with other

people, even other adults, when they are restricted from having contact with minors.”

(Appellant’s Br. at 36.) To put it more bluntly, instead of helping Bleeke successfully reintegrate

into the community, these conditions—with no reasonable factual basis for doing so—effectively

operate only to isolate him further from the community. They thus fail to meet the requirements

of Ind. Code § 11-13-3-4(b), and their enforcement must be enjoined. 5 6

5

Because of this we need not examine Bleeke’s claim that the conditions unduly burden his First

Amendment right of association. Ind. Code § 11-13-3-4(b) is explicit that both requirements must be

satisfied for an additional condition to be valid, although it would certainly seem that a burden on a

15

With respect to the remaining additional conditions, Bleeke also argues that they were not

properly promulgated by the Parole Board pursuant to Indiana Code chapter 4-22-2. See Ind.

Code § 11-13-3-4(b) (“parole board may also adopt, under IC 4-22-2, additional conditions”).

That chapter of the Indiana Code, he says, requires the Parole Board to publish notice of the

proposed parole conditions in the Indiana Register, hold a public hearing, receive and respond to

public comments, submit a final version to the Attorney General of Indiana and the Governor of

Indiana for approval, and then submit the approved version for publication in the Indiana

Administrative Code. He argues that none of his individual additional parole conditions were

imposed following this procedure.

In support of this claim, Bleeke argues that none of his additional conditions were

individually published in the Indiana Administrative Code, nor are there records of their

publication in the Indiana Register. But he acknowledges a provision of the Administrative

Code providing that the Parole Board “may attach special conditions to the standard parole

release agreement, compliance with which shall be a condition to remaining on parole.” 220 Ind.

fundamental right, caused by a condition of parole, might be considered “undue” when it is not

reasonably related to the parolee’s reintegration into society.

6

Bleeke does not argue that the remaining additional conditions—Conditions 8, 12, 15, 16, and 22—are

not reasonably related to his successful reintegration into the community or unduly restrict a fundamental

right. Nor do we think such a claim would have merit.

These remaining conditions restrict Bleeke’s access to pornography and other sexual material (Condition

8), to bars (Condition 12), and to “areas where potential victims can be encountered” (Condition 15);

prohibit him from picking up hitchhikers or traveling alone after dark (Condition 16); and compel him to

undertake polygraphs to ensure he is complying with his parole conditions (Condition 22). (App. at 159–

60.) Given the facts underlying Bleeke’s conviction—picking up a woman in a bar and, after she was

intoxicated, traveling to her home and sexually assaulting her—these conditions appear reasonably related

to preventing him from returning to such an environment or circumstances, and therefore seem to be

reasonably related to his successful reintegration into the community and not unduly restrictive of a

fundamental right.

16

Admin. Code 1.1-2-4(b) (Supp. 2011). That same provision provides examples of such special

conditions, but notes that the special conditions are not limited to those examples. Id. Bleeke

contends that this rule—which he does not challenge as improperly promulgated—is proof that

the Parole Board believes it may impose additional conditions without complying with Indiana

Code chapter 4-22-2.

But we disagree with his apparent view that such procedure is necessary with each and

every additional parole condition adopted by the Parole Board for each and every offender. And

to the extent additional conditions may only be adopted “under IC 4-22-2,” we think 220 Ind.

Admin. Code 1.1-2-4 is an adequate demonstration of compliance.

As the Parole Board says, Bleeke’s approach would be a practical impossibility. “A

special condition could include a curfew, which would be different for every offender depending

upon crime, housing, employment, and any number of other variables. A special condition could

be intensely personal, such as living at a certain shelter or address or a curfew or attending

certain meetings.” (Appellee’s Br. at 17.) “To promulgate all would lead to nothing but

confusion and the proliferation of administrative rules.” (Appellee’s Br. at 17.) We hardly think

the General Assembly’s intent, in including the phrase “under IC 4-22-2” in Ind. Code § 11-13-

3-4(b) was to turn the Indiana Administrative Code into an encyclopedia of parole conditions

each specifically tailored to individual parolees. The administrative cost of such individual rule

promulgation would be extraordinary, to say nothing of the time it would take for each individual

condition to be approved and published—indeed, Bleeke’s approach might very well mean that

17

offenders rarely saw parole at all because their parole conditions could not be properly

promulgated and published fast enough. 7

Finally, Bleeke argues that Ind. Code § 11-13-3-4(b) required the Parole Board to

conduct “an individualized determination of appropriateness before imposing additional

conditions on a parolee.” (Appellant’s Br. at 29.) Notwithstanding the federal district court’s

decision that such a hearing was necessary with respect to imposing conditions restricting

Bleeke’s access to his own family and children (and restricting a specific constitutionally

guaranteed liberty interest no longer at issue in this case), our resolution of the remainder of

Bleeke’s claims about his additional parole conditions means we do not need to resolve this

claim. The text of the statute itself directs no such individualized assessment; if one is

compelled, it is by virtue of constitutional protections that do not need to be invoked today.

We note, however, that judicial review of the appropriateness of a parolee’s specific

conditions is very fact-sensitive. And we were able to resolve Bleeke’s case here in large part

because there had been such an individualized hearing with individualized evidence presented,

so we had the benefit of a developed record on appeal and could therefore make a determination

as to whether Bleeke’s conditions complied with the statutory requirements. Certainly the Parole

Board, by virtue of having control over offenders about to be released to parole, may be fully

capable of developing individualized assessments for each parolee prior to imposing any parole

conditions. And it may be more efficient, long-term, for such determinations to be made up front

7

Bleeke similarly asserts that the Parole Board’s policy of imposing all sex offender parole conditions on

every sex offender, regardless of circumstances, is also an unpromulgated rule and therefore void. But he

did not present this claim to the trial court in either his complaint or his motion for summary judgment,

and “a claim is not normally available for review on appeal unless first made at trial.” Kincaid v. State,

837 N.E.2d 1008, 1010 (Ind. 2005). We thus decline to address it.

18

rather than waiting for them to be judicially ordered as a consequence of a legal challenge. But

until the question of whether such assessments are constitutionally compelled is squarely before

us, we leave that procedural determination to the Parole Board and the legislature.

B. Conditions 8, 15, 17, and 19

Bleeke also argues that Conditions 15, 17, and 19 are unconstitutionally vague, and that

Condition 8 is impermissibly overbroad. 8 He says those conditions “are not sufficiently clear to

inform [him] of what conduct will result in his being returned to prison,” and therefore “they

violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution.”

(Appellant’s Br. at 40.)

The Court of Appeals agreed, basing its conclusion largely on comparison of Bleeke’s

parole conditions with identical, or nearly identical, language previously found to be

unconstitutionally overbroad or vague in other cases. Bleeke, 982 N.E.2d at 1051–53 (citing

8

Condition 8 restricts Bleeke’s access to pornography and certain other sexual material and sex-related

businesses, and provides that he

shall not possess or view any material that is obscene, which for the purposes of this

stipulation, is what the average person, applying contemporary community standards,

finds that the dominant theme of the material, taken as a whole, appeals to a morbid,

degrading, and unhealthy interest in sex; depicts or describes, in a patently offensive way,

sexual conduct; and taken and [sic] a whole, lacks serious literary, artistic, political, or

scientific value. You shall not visit strip joints, adult bookstores, peep shows, bars where

topless or exotic dancers perform, or businesses which sell sexual devices or aids. You

shall not possess personal contact materials (for example, magazines, or papers) that

contain information about persons who are desiring to have personal relationships of any

kind with others, nor will you place any ads that are sexual in content or respond by

computer, telephone, or internet web sites, to any sexually solicitous ads.

(App. at 159.)

19

Collins v. State, 911 N.E.2d 700 (Ind. Ct. App. 2009), trans. denied and McVey v. State, 863

N.E.2d 434 (Ind. Ct. App. 2007), trans. denied). We see no need to duplicate its analysis as to

these conditions, and therefore summarily affirm that portion of the Court of Appeals opinion.

Ind. Appellate Rule 58(A)(2). Without further clarification or specificity as to what conduct

would result in his return to prison for violating them in accordance with the Court of Appeals

decision below, Bleeke’s parole conditions 8, 15, 17, and 19 are impermissible. 9

II. Ind. Code §§ 11-13-3-4(g); 35-42-4-11

Bleeke was convicted of attempted criminal deviate conduct. Under the current version

of the Indiana Code, that classifies him as a “sexually violent predator.” See Ind. Code § 35-38-

1-7.5(b)(1)(B), (b)(1)(J) (Supp. 2013). This classification means that he is also, by current

statute, classified as an “offender against children.” Ind. Code § 35-42-4-11(a)(1) (Supp. 2013).

Offenders against children may not reside within one thousand feet of a school, youth program

center, or public park. Ind. Code § 35-42-4-11(c) (2008). Knowingly or intentionally doing so is

a class D felony. Id.

In a similar way, Ind. Code § 11-13-3-4(g)(2) requires the Parole Board to prohibit all sex

offenders from residing within one thousand feet of school property and “from owning,

operating, managing, being employed by, or volunteering at any attraction designed to be

primarily enjoyed by children less than sixteen (16) years of age.” Ind. Code § 11-13-3-

4(g)(2)(B), (g)(2)(D). A sex offender may obtain written approval from the Parole Board to live

9

And, as we already explained, Conditions 17 and 19 are also inappropriate as not being reasonably

related to Bleeke’s reintegration into the community.

20

within one thousand feet of a school, but there is no such waiver available for the employment

restriction—and it is not clear if the waiver on residency in proximity of a school would excuse

the parolee from criminal liability under the “offender against children” statute.

Bleeke challenges Ind. Code §§ 35-42-4-11 and 11-13-3-4 as being facially

unconstitutional because they “impose severe stigma and severe restrictions on liberty onto

persons to whom the label [offender against children] does not apply and for whom the

restrictions are not reasonably necessary.” (Appellant’s Br. at 47.) He acknowledges that in

some instances the statutes might be properly applied, but argues that the State “cannot

constitutionally label a person ‘an offender against children’ if he has not committed an offense

against a child,” and cannot impose the restrictions that flow from such a label “on a parolee who

has not been convicted of an offense against a minor without first determining through due

process that such a person poses an increased risk to minors.” (Appellant’s Br. at 45–46.) He

nevertheless challenges the statutes on their face, rather than as-applied to him, because the

operative language used “is automatic and mandatory.” (Appellant’s Br. at 46.)

The Court of Appeals concluded that Ind. Code § 35-42-4-11 does not apply to Bleeke at

all, as it does not apply to offenders who committed crimes prior to June 30, 2006, and Bleeke’s

offense occurred in 2002. 10 Bleeke, 982 N.E.2d at 1047. It also concluded that Ind. Code § 11-

10

The trial court noted that the statute did not apply to Bleeke—and the Parole Board conceded as

much—but it nevertheless declined to invalidate the accompanying parole condition restricting Bleeke

from living within one thousand feet of a school. In maintaining the condition, it appears to have relied

upon this Court’s opinion in Hevner v. State, 919 N.E.2d 109 (Ind. 2009). But in that case, we

invalidated application of the residency restriction found in Ind. Code § 35-42-4-11 but nevertheless

upheld a probation condition prohibiting the defendant from residing within one thousand feet of a

school, because the defendant had been convicted of possession of child pornography and therefore was

still “subject to conditions of probation that ‘have a reasonable relationship to the treatment of the accused

and the protection of the public’” Hevner, 919 N.E.2d at 113 (quoting Hale v. State, 888 N.E.2d 314, 319

21

13-3-4(g)(2)(D), by effectively identifying Bleeke as an offender against children, “limit[ed]

legitimate conduct in the form of both foreseeable employment and association,” in spite of all

the evidence indicating “that Bleeke is not among those sex offenders who ‘cross-over’ and

become a danger to children.” Id. at 1050. It therefore found that statutory provision overbroad

as applied to Bleeke. Id.

The Court of Appeals also noted that the application of the label “offender against

children” implicated a liberty interest in freedom from stigmatization that required some level of

due process before it could be imposed. Id. at 1048–49. But it concluded that Bleeke had

received that process by way of his litigation leading up to this appeal—it did not require, as

Bleeke seeks, an individualized assessment prior to the application of the statutes. Id. at 1049.

We agree with the Court of Appeals’ analysis on these claims, and we likewise agree that

to the extent Bleeke was entitled to procedural protections he received them by way of his legal

challenges. We note again that it may prove to be more efficient for the Parole Board to provide

such process before litigation ensues, but that is not a question we need to resolve today. We

(Ind. Ct. App. 2008), trans. denied). Because of the nature of his offense, we could not conclude that

“prohibiting Hevner from residing within 1,000 feet of school property [was] an unreasonable condition.”

Id.

But Hevner does not stand for a blanket proposition that such a residency restriction is always appropriate

regardless of whether Ind. Code § 35-42-4-11 applies to a given offender. For parolees not subject to the

statute’s mandatory application, such a restriction would be an additional parole condition—and the test

for appropriateness is whether the residency restriction reasonably relates to the parolees’ successful

reintegration into the community and is not unduly restrictive of a fundamental right. For the same

reasons we explained above with respect to the additional parole conditions restricting Bleeke’s

interaction with minors, a residency restriction—assigned as an additional parole condition—prohibiting

him from living within one thousand feet of a school would also fail that statutory standard.

22

therefore summarily affirm the Court of Appeals with respect to that portion of its opinion

addressing Ind. Code §§ 35-42-4-11 and 11-13-3-4(g). Ind. Appellate Rule 58(A)(2).

III. The SOMM Program

Indiana’s SOMM program was established in 1999 as a statewide program aimed at

reducing the recidivism of offenders convicted of sex crimes. It is managed by the DOC with the

provision of specialized treatment services subcontracted to Liberty Behavioral Health

Corporation. Offenders are targeted for the SOMM program based on their conviction for

certain specified sex-related offenses, or certain other offenses “that [are] determined to be of a

sexual nature based upon a review of the instant offense and all available documentation.”11

(App. at 280.)

The program has three phases. The first phase is a mandatory consent and assessment

phase that occurs while a targeted offender is incarcerated—typically upon entry into the prison

system. All targeted SOMM offenders are informed of the nature of the program, including its

potential benefits and “possible adverse consequences of participating.” (App. at 266.)

Participation requires consent from the offender, but refusal to participate (or a subsequent

11

SOMM target offenses include rape, criminal deviate conduct, child molestation, child exploitation,

possession of child pornography, vicarious sexual gratification, child solicitation, child seduction, sexual

battery, sexual misconduct with a minor, incest, public indecency, voyeurism, promoting prostitution with

a minor, dissemination of matter harmful to minors, failure to register as a sex offender, attempt to

commit any of the above, conspiracy to commit any of the above, and aiding, inducing, or causing

another person to commit any of the above. The list of additional offenses that might otherwise identify a

SOMM offender, if of a sexual nature, include battery, criminal confinement, residential entry, promoting

prostitution, public nudity, stalking, and abuse of a corpse.

23

withdrawal of consent) is a violation of the DOC’s disciplinary code for “[r]efusing to work or

accept a work, program or housing assignment.” (App. at 260, 266.) Offenders who consent are

assessed and evaluated for their recidivism risk, treatment needs, and other issues that would

impact their participation in the program.

The offenders are then transitioned to the second phase of the SOMM program, in which

they participate (during the last three years of their sentence) in a treatment program based on

their recidivism risk. The programs are either risk-based, sex offender-specific, or based on

psychoeducational needs. Reports on the offender’s participation (and success) in the second

phase of the SOMM program are forwarded to treatment providers when the offender is

transitioned to parole and begins the third phase. An offender who is suspended from treatment

because of counter-therapeutic behavior or violating their treatment agreement will be subject to

DOC disciplinary procedures.

The third phase of the SOMM program “is designed to support and optimize the process

of re-entry into the community for INSOMM offenders.” (App. at 269.) It is available for

parolees, but not probationers. During this phase, the program develops a “containment team”

for each offender consisting of at least the offender’s parole agent, a district coordinator, a

treatment provider, and a polygraph examiner. This team shares information in order to assist in

management of the parolee. The parolee is also subject to “intensive Sex Offender Parole

Stipulations,” which are laid out in Form 49108 and are automatically imposed on every SOMM

parolee. Failure to complete this phase by being unsuccessfully terminated from the program or

suspended from treatment means the parolee is subject to a violation of his or her parole.

Parolees can be released from the SOMM program by either successful completion of the

required treatment program or the expiration of their parole period before treatment could be

completed.

24

As we explained above, Bleeke was convicted of a SOMM target offense, participated in

the first two phases of the program, and is now in the third phase. During the second phase—in

his community transition program—Bleeke was subject to the conditions of Form 49108 and

spent a weekend in jail for refusing to sign a waiver of immunity before undergoing an instant

offense polygraph. And as part of the third phase, he is still required to undergo polygraph

testing regarding his underlying conviction and sexual history, the results of which might be

shared with law enforcement agencies without immunity. And failure to do so is a parole

violation.

Bleeke contends that the requirement that he admit his guilt for the offense of which he

was convicted in order to successfully complete the SOMM program—even though he has

consistently maintained his innocence—coupled with failure to complete the program being a

parole violation, is a violation of the Fifth Amendment’s privilege against self-incrimination. 12

He also argues that the requirement that he disclose all other sexual behaviors, including those

that would be criminal offenses, under a mandatory polygraph program and with no immunity

for the disclosures, is a Fifth Amendment violation because failure to comply is grounds to

revoke his parole and compliance risks incriminating statements being shared with law

enforcement. We disagree.

12

Bleeke states that the program “violates the Indiana and United States Constitutions,” but provides no

further argument or analysis of the Indiana Constitution’s provisions. (Appellant’s Br. at 47.) We

therefore treat this question as only raising challenges based on the federal provisions.

But for the same reasons that we conclude below that the SOMM program does not “compel” Bleeke to

make self-incriminating statements in violation of the Fifth Amendment, we do not need to address his

claim that his speech is “compelled” in violation of the First Amendment.

25

The Fifth Amendment’s Self-Incrimination Clause provides that no person “shall be

compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. This

protection extends to state cases by virtue of the Fourteenth Amendment. See Withrow v.

Williams, 507 U.S. 680, 688–89 (1993). “[T]his prohibition not only permits a person to refuse

to testify against himself at a criminal trial . . . but also ‘privileges him not to answer official

questions put to him in any other proceeding, civil or criminal, formal or informal, where the

answers might incriminate him in future criminal proceedings.’” Minnesota v. Murphy, 465 U.S.

420, 426 (1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)); see also Clifft v. Ind.

Dep’t. of State Revenue, 660 N.E.2d 310, 314 (Ind. 1995) (Fifth Amendment privilege applies

“in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory”

(quoting Maness v. Meyers, 419 U.S. 449, 464 (1975)). But “[t]he Fifth Amendment prohibits

only compelled testimony that is incriminating.” Hiibel v. Sixth Judicial Dist. Ct. of Nev., 542

U.S. 177, 190 (2004). If those two elements are present,

a witness protected by the privilege may rightfully refuse to answer

unless and until he is protected at least against the use of his

compelled answers and evidence derived therefrom in any

subsequent criminal case in which he is a defendant. Absent such

protection, if he is nevertheless compelled to answer his answers

are inadmissible against him in a later criminal prosecution.

Turley, 414 U.S. at 78 (internal citations omitted).

We therefore must examine whether Bleeke was (or is) compelled to provide self-

incriminating testimony because of the SOMM program requirements that he admit his guilt to

the underlying conviction and answer questions about his prior sexual history. If so, he must

either be afforded use and derivative use immunity for the testimony, or his responses will be

inadmissible in any later criminal prosecutions.

26

A. Was Bleeke at Risk of Self-Incrimination?

It seems clear that the potential for self-incrimination is present. For this element, there

must be “reasonable cause to apprehend danger from a direct answer.” Hoffman v. United

States, 341 U.S 479, 486 (1951). “The witness is not exonerated from answering merely because

he declares that in so doing he would incriminate himself—his say-so does not of itself establish

the hazard of incrimination. It is for the court to say whether his silence is justified.” Id. But

this does not mean the witness must actually provide the self-incriminating testimony in order to

prove the privilege; this would effectively defeat the privilege in order be afforded its protection.

Id. “To sustain the privilege, it need only be evident from the implications of the question, in the

setting in which it is asked, that a responsive answer to the question or an explanation of why it

cannot be answered might be dangerous because injurious disclosure could result.” Id. at 486–

87. Answers are incriminating not only when they “would in themselves support a conviction,”

but also when they would “furnish a link in the chain of evidence” necessary to prosecute the

claimant for a crime. Id. at 486.

Bleeke testified at his trial in 2005, and denied any sexual contact with the victim.

Though the five-year statute of limitations on perjury has since run, see Ind. Code § 35-41-4-

2(a)(1) (Supp. 2013), a charge for that crime was a very real threat when he was required to

submit to an instant offense polygraph in October 2008 after continuing to deny his guilt. 13

13

It is a class D felony to either make “a false, material statement under oath or affirmation, knowing the

statement to be false or not believing it to be true,” or knowingly make “two (2) or more material

statements, in a proceeding before a court or grand jury, which are inconsistent to the degree that one (1)

of them is necessarily false.” Ind. Code § 35-44.1-2-1 (Supp. 2013).

27

Moreover, he correctly points out that the statutes of limitations on other crimes that may be

discovered as a result of the sexual history questions run much longer. See Ind. Code § 35-41-4-

2 (no statute of limitations on class A felony prosecutions or murder prosecutions; prosecutions

for sex crimes against children not barred until victim reaches age of thirty-one).

The Parole Board asserts that there is no evidence that any such statements might be used

in a future criminal proceeding, and that “[n]o such statement has been used in a past criminal

proceeding, or even turned over to law enforcement or any other state agency.” (Appellee’s Br.

at 20.) It also cites Chavez v. Martinez, 538 U.S. 760, 766 (2003), for the idea that a Fifth

Amendment violation can only occur once the incriminating statement is used against the

defendant in a criminal trial—and therefore, the Parole Board says, Bleeke’s “attempt to

challenge SOMM on self-incrimination grounds is not ripe.” (Appellee’s Br. at 20.)

The Parole Board misreads Chavez and the limited context in which it was decided.

Chavez was a case in which a defendant, while in the hospital for wounds sustained during an

altercation with police, was interrogated by police without receiving Miranda warnings. Chavez,

538 U.S. at 763–64. During the course of that interrogation he made several incriminating

statements. He was never charged with a crime, though, and the statements were never used

against him. But he nevertheless filed a civil suit against the police, claiming a Fifth

Amendment violation and seeking damages for that violation under 42 U.S.C. § 1983. The

Supreme Court’s analysis of when a violation of his rights occurred was thus made in response to

whether he had an actionable claim for damages under § 1983—and the Court found that he did

not because ultimately he had not suffered actual harm by being asked incriminating questions

before he was Mirandized. Id. at 766–67.

Taking this analysis out of that context and applying it as the rule for when a defendant

may properly invoke the Fifth Amendment’s privilege, as the Parole Board seeks to do, would

have far greater (and worse) implications. In fact, it would effectively vitiate the Fifth

28

Amendment privilege entirely because a defendant could not claim the protection of the Fifth

Amendment—only, later, a violation of the Fifth Amendment. He or she could not refuse to

answer a question because the response would be self-incriminating; a defendant could only later

seek to have that response excluded in Court and a violation would only occur if the trial court

refused that request.

This is contrary to the greater wealth of U.S. Supreme Court case law on the subject.

See, e.g., Turley, 414 U.S. at 77 (Fifth Amendment privileges witness “not to answer official

questions . . . where the answers might incriminate him in future criminal proceedings”); see also

Counselman v. Hitchcock, 142 U.S. 547, 562 (1892) (“It is impossible that the meaning of the

constitutional provision can only be that a person shall not be compelled to be a witness against

himself in a criminal prosecution against himself.” Instead, “[t]he object was to insure that a

person should not be compelled, when acting as a witness in any investigation, to give testimony

which might tend to show that he himself had committed a crime.”), overruled in part by

Kastigar v. United States, 406 U.S. 441 (1972). The Court in Chavez was explaining that

Chavez could not seek a damages claim under § 1983 for a Fifth Amendment violation because

his incriminating statements were not actually used against him at trial; it was neither faced with,

nor addressed, the propriety of whether Chavez could have invoked the Fifth Amendment and

refused to answer the officer’s questions in the hospital. And it is this latter context in which we

find ourselves today.

Moreover, it is irrelevant to our analysis that the Parole Board asserts that no one has

been subject to prosecution for admissions made during the SOMM program. The record before

us indicates that such an occurrence is squarely within the scope and contemplation of the

program. For example, the polygraph waiver expressly states that the results could be shared

with agencies other than the parolee’s treatment team, and that the examiner was obliged to

comply with any state or federal statutory reporting requirements. See, e.g., Ind. Code chapter

31-33-5 (mandatory reporting requirements for victims of child abuse or neglect). And it is hard

29

to imagine that the State would decline to prosecute if a SOMM sexual history examination

disclosed a severe and unsolved crime. See Murphy, 465 U.S. at 422–24.

Put simply, the SOMM program is primarily aimed at treatment, but also has a degree of

investigatory intent. The fact that no such follow-on prosecutions has yet occurred does not

change our view “from the implications of the question, in the setting in which it is asked, that a

responsive answer to the question or an explanation of why it cannot be answered might be

dangerous because injurious disclosure could result.” Hoffman, 341 U.S. at 486–87.

B. Were Bleeke’s Responses Compelled?

This is not to say that a State official or agent may not ask Bleeke questions that risk his

self-incrimination. To the contrary, that is precisely what is required of those charged with

public safety.

The duty to give testimony was qualified at common law by the

privilege against self-incrimination. And the Fifth Amendment has

embodied this privilege in our fundamental law. But the privilege

is a privilege to withhold answers and not a privilege to limit the

range of public inquiry. The Constitution does not forbid the

asking of criminative questions. It provides only that a witness

cannot be compelled to answer such questions unless ‘a full

substitute’ for the constitutional privilege is given.

United States v. Monia, 317 U.S. 424, 432–33 (1943). The general rule is therefore “that a

witness confronted with questions that the government should reasonably expect to elicit

incriminating evidence ordinarily must assert the privilege rather than answer if he desires not to

incriminate himself.” Murphy, 465 U.S. at 429. “But if he chooses to answer, his choice is

considered to be voluntary since he was free to claim the privilege and would suffer no penalty

as a result of his decision to do so.” Id.

30

There are exceptions to this general rule, however, including “where the assertion of the

privilege is penalized so as to ‘foreclos[e] a free choice to remain silent, and . . . compe[l] . . .

incriminating testimony.’” Id. at 434 (quoting Garner v. United States, 424 U.S. 648, 661

(1976)) (alterations in original). “If a witness . . . answers a question that both he and the

government should reasonably expect to incriminate him, the Court need ask only whether the

particular disclosure was ‘compelled’ within the meaning of the Fifth Amendment.” Murphy,

465 U.S. at 428. “[W]hen a State compels testimony by threatening to inflict potent sanctions

unless the constitutional privilege is surrendered, that testimony is obtained in violation of the

Fifth Amendment.” Lefkowitz v. Cunningham, 431 U.S. 801, 805 (1977).

Here, Bleeke initially refused to sign the polygraph form consenting to a waiver of

confidentiality (and acknowledging a lack of immunity) for his results, but still offered to take

the exam. This garnered him a weekend in jail for violating a rule of his community transition

program. He then acquiesced to signing the form rather than go back to jail again and took the

polygraph. And he now faces an ongoing threat of this same sanction through the conditions of

his parole.

The question before us thus becomes whether this threat to Bleeke—answer the

potentially incriminating questions or face re-incarceration—so compelled (or will compel) his

answers that it violates the Fifth Amendment unless he is provided immunity.

1. The SOMM Program’s Second Phase

The U.S. Supreme Court recently decided McKune v. Lile, 536 U.S. 24 (2002), a case

involving an inmate in a state prison in Kansas participating in an in-prison treatment program

very similar to the SOMM program. As part of that program, the participants were required to

accept responsibility for the crime for which they were sentenced and complete a full sexual

history, regardless of whether their prior sexual activities might or might not constitute

31

uncharged crimes. The information disclosed was not privileged; the possibility existed that

Kansas could use the information as the basis for new criminal charges, and—similar to

Indiana—Kansas law required the reporting of sexual offenses against minors to law

enforcement. “Although there is no evidence that incriminating evidence has ever been

disclosed under the [program], the release of information is a possibility.” Id. at 30.

Robert Lile was in jail for rape, aggravated sodomy, and aggravated kidnapping, and was

ordered to enter the treatment program when several years remained on his sentence. If he

refused to participate, his privileges would be reduced, including “visitation rights, earnings,

work opportunities, ability to send money to family, canteen expenditures, access to a personal

television, and other privileges.” Id. at 30. He would also be transferred to a higher-security

unit, be in a more dangerous environment, and would move from a two-person cell to a four-

person cell. Lile refused to participate, claiming that the disclosures violated his Fifth

Amendment privilege against self-incrimination (he had maintained at trial that the intercourse

was consensual), and filed a § 1983 action seeking to enjoin the loss of his privileges and transfer

to a different housing unit. The Supreme Court’s opinion was fractured with respect to how to

analyze Lile’s claim, but five Justices nevertheless concurred that Lile’s responses were not

“compelled” in violation of the Fifth Amendment.

Justice Kennedy, writing for four Justices, noted that “[w]hen convicted sex offenders

reenter society, they are much more likely than any other type of offender to be rearrested for a

new rape or sexual assault.” 14 Id. at 33. “States thus have a vital interest in rehabilitating

14

This statement, while true, should not be taken to mean that sex offenders reentering society are more

likely than other offenders to be recidivists—it means that if the sex offender does commit another

offense, he or she is more likely to commit another sex offense than a released offender convicted of

another crime. A study by the Bureau of Justice Statistics—a component of the U.S. Department of

32

convicted sex offenders,” and clinical rehabilitative programs can be useful in “enabl[ing] sex

offenders to manage their impulses and in this way reduce recidivism.” Id. And “[a]n important

component of those rehabilitation programs requires participants to confront their past and accept

responsibility for their misconduct” because “[d]enial is generally regarded as a main

impediment to successful therapy.” Id.

Justice—released in 2002 tracked the recidivism of nearly 300,000 inmates released from incarceration in

1994. “Recidivism of Prisoners Released in 1994,” Bureau of Justice Statistics (June 2002), available at

http://www.bjs.gov/content/pub/pdf/rpr94.pdf. Of the prisoners tracked, 2.5% of released rapists were

arrested for another rape within three years—a percentage higher than any other class of offender re-

arrested for rape. Id. at 1, 9. But those incarcerated for rape and other sexual assaults were among the

lowest total re-arrest rates for any crime; the highest actual percentage of re-arrests was found among

offenders convicted of robbery and other property crimes. Id. at 1. For example, 23% of those originally

convicted of burglary were re-arrested within three years for another burglary; and nearly 34% of those

arrested for larceny/theft were re-arrested for the same offense within three years. Id. at 9.

A number of factors can, of course, contribute to this lower relative rate of recidivism amongst released

sex offenders, including the possibly higher percentage of sexual offenses that go unreported or

uncharged and (significantly) the impact of programs like the Kansas program and the SOMM program.

For example, a similar study by the Bureau of Justice Statistics that tracked the re-arrest rates of offenders

released in 1983, showed that the percentage of released rapists who were re-arrested within three years

for rape was more than twice as high (7.7%) as it was a decade later. “Recidivism of Prisoners Released

in 1983” at 6, Bureau of Justice Statistics (April 1989), available at

http://www.bjs.gov/content/pub/pdf/rpr83.pdf. But while that made rapists more likely than other

offenders to be re-arrested for rape, the highest percentages of offenders re-arrested for the same offense

as their original conviction remained amongst those convicted of property and theft offenses. See id. at 6

(31.9% rate for burglary; 33.5% rate for larceny/theft).

The bottom line is that rehabilitation programs like the Kansas program and the SOMM program have

value not because sex offenders on parole or probation are inherently more likely to re-offend than any

other class of parolee or probationer—they are not. But they are more likely, if they do re-offend, to re-

offend by committing another sex offense (as compared to any other class of parolee or probationer).

And given the particularly heinous nature of these offenses—and their lasting consequences on victims

who in many cases are some of the most vulnerable—society has assigned a great deal of value in

preventing their recurrence.

33

Justice Kennedy did not find the absence of immunity protections to automatically

invalidate the Kansas program. The lack of immunity served legitimate purposes because part of

accepting full responsibility for their actions entailed prisoners “accept[ing] the proposition that

those actions carry consequences,” and guaranteeing immunity for statements made during the

program would effectively “absolve many sex offenders of any and all cost for their earlier

crimes. This is the precise opposite of the rehabilitative objective.” Id. at 34–35. And Kansas

had a valid interest in the deterrent effect of maintaining the option to prosecute an offender for

any uncharged offenses that might be uncovered during the course of treatment. Id. at 35.

Certainly if “Kansas offered immunity, the self-incrimination privilege would not be

implicated,” but because immunity was not offered “the central question becomes whether the

State’s program, and the consequences for nonparticipation in it, combine to create a compulsion

that encumbers the constitutional right.” Id. “If there is compulsion, the State cannot continue

the program in its present form.” Id. And ultimately, Justice Kennedy concluded, the Kansas

program “[did] not compel prisoners to incriminate themselves in violation of the Constitution.”

Id. The consequences imposed for failing to participate—loss of privileges and transfer to a

different housing unit—were “not ones that compel a prisoner to speak about his past crimes

despite a desire to remain silent.” Id. at 36.

And, significantly, the consequences were being imposed on prisoners rather than

ordinary citizens. Because even though “[t]he privilege against self-incrimination does not

terminate at the jailhouse door,” the fact of a valid conviction permits a range of conditions that

might infringe upon a free citizen’s constitutional rights. Id. And those conditions could be

validly imposed in the name of rehabilitation and “the need to grant necessary authority and

capacity to federal and state officials to administer the prisons.” Id. at 36–37. Justice Kennedy

pointed to Sandin v. Conner, 515 U.S. 472, 485 (1995), in which the Court said that “challenged

prison conditions cannot give rise to a due process violation unless those conditions constitute

34

‘atypical and significant hardship[s] on [inmates] in relation to the ordinary incidents of prison

life,’” id. at 37 (quoting Sandin, 515 U.S. at 484).

Extending that test to a prisoner’s claim that he was being compelled to incriminate

himself, Justice Kennedy said that “[t]he compulsion inquiry must consider the significant

restraints already inherent in prison life and the State’s own vital interests in rehabilitation goals

and procedures within the prison system.” McKune, 536 U.S. at 37. And therefore “[a] prison

clinical rehabilitation program,” bearing a rational relationship to a legitimate state objective,

“does not violate the privilege against self-incrimination if the adverse consequences an inmate

faces for not participating are related to the program objectives and do not constitute atypical and

significant hardships in relation to the ordinary incidents of prison life.” Id. at 37–38.

Under this framework, Justice Kennedy concluded that Lile was not entitled to relief

because his decision to not participate did not extend his term of incarceration or affect his

eligibility for good-time credits or parole. Id. at 38. Instead it changed his housing assignment,

a legitimate consequence because his assignment to the facility where the program was

conducted meant someone who would participate could not be assigned there, and reduced his

prison privileges—also a legitimate consequence because “[a]n essential tool of prison

administration . . . is the authority to offer inmates various incentives to behave.” Id. at 39. And

Lile’s conviction of a crime took his case out of the realm of the so-called “penalty cases”—

because those cases “involved free citizens given the choice between invoking the Fifth

Amendment privilege and sustaining their economic livelihood,” and those notions do not easily

extend to prison life, “where inmates surrender upon incarceration their rights to pursue a

35

livelihood and to contract freely with the State, as well as many other basic freedoms.” Id. at

40. 15

Justice O’Connor concurred in the judgment of the Court, but believed “the proper theory

should recognize that it is generally acceptable to impose the risk of punishment, however great,

so long as the actual imposition of such punishment is accomplished through a fair criminal

process.” Id. at 53. She disagreed with the application of the Sandin standard to Fifth

Amendment violations, but did not see the need to set forth any test of her own to find that Lile’s

statements were not unconstitutionally compelled. Id. at 54. Instead she believed that the text of

the Fifth Amendment itself provided the framework for analysis: “whether the pressure imposed

in such situations rises to a level where it is likely to ‘compe[l]’ a person ‘to be a witness against

himself.’” Id. at 49 (quoting U.S. Const. amend. V). And that same analysis applied equally “to

penalties imposed upon a person as a result of the failure to incriminate himself—some penalties

are so great as to ‘compe[l]’ such testimony, while others do not rise to that level.” Id. But by

comparing the penalties Lile faced with those faced in the penalty cases, she found the penalty

cases to be far more significant and therefore agreed with the plurality’s conclusion that Lile had

not been compelled to be a witness against himself. Id. at 49–50.

15

The “penalty cases” were those in which “the State not only compelled an individual to appear and

testify, but also sought to induce him to forgo the Fifth Amendment privilege by threatening to impose

economic or other sanctions ‘capable of forcing the self-incrimination which the Amendment forbids.’”

Murphy, 465 U.S. at 434 (quoting Cunningham, 431 U.S. at 806). The rule from those cases was that “a

State may not impose substantial penalties because a witness elects to exercise his Fifth Amendment right

not to give incriminating testimony against himself.” Id. (quoting Cunningham, 431 U.S. at 805); see

Cunningham, 431 U.S. at 801 (loss of right to hold public office); Turley, 414 U.S. at 70 (ineligibility to

participate in government contracts); Uniformed Sanitation Men Ass’n, Inc. v. Comm’r of Sanitation of

City of New York, 392 U.S. 280 (1968) (termination of employment); Spevack v. Klein, 385 U.S. 511

(1967) (loss of professional license).

36

McKune’s application has been mixed in both state and federal courts, with differences

arising in whether to apply Justice Kennedy’s or Justice O’Connor’s approach, and different

results as to whether inmates are compelled to violate their Fifth Amendment privilege by virtue

of their participation in programs similar to SOMM (i.e., requiring admission of guilt or past

crimes, coupled with a threat of lost credit time or other prison privileges).

Most Circuits of the Federal Court of Appeals have rejected these Fifth Amendment

challenges. 16 But the Ninth Circuit, by way of example, reached a different conclusion in a case

in which the challenge to the sex offender program related to the requirement to admit guilt to

other crimes for which a probationer was not convicted, and the probationer’s probation had

been revoked several times for noncompliance. 17 And similarly, some state courts have found no

16

See, e.g., DeFoy v. McCullough, 301 Fed.Appx. 177, 181–82 (3rd Cir. 2008) (defendant “chose not to

participate in a valid treatment program in order to avoid potential self-incrimination, and he suffered

because of his choice”); Entzi v. Redmann, 485 F.3d 998, 1002 (8th Cir. 2007) (mere filing of petition to

revoke probation—before inmate is released from incarceration—because of failure to comply with sex

offender program “is not a consequence serious enough to compel him to be a witness against himself in

violation of the Fifth Amendment” and, also, petition was denied by state court); Ainsworth v. Stanley,

317 F.3d 1, 6 (1st Cir. 2002) (adopting Justice O’Connor’s approach and reaffirming prior decisions that

“the reduced likelihood of parole for refusing to participate in the [sex offender program] does not

constitute a penalty sufficient to compel incriminating speech in violation of the Fifth Amendment”);

Searcy v. Simmons, 299 F.3d 1220, 1226 (10th Cir. 2002) (adopting Justice O’Connor’s approach and

finding that “foreclosing [the inmate] from the mere opportunity to earn good time credits is not a new

penalty, but only the withholding of a benefit . . . [Kansas] is under no obligation to give”).

17

See United States v. Antelope, 395 F.3d 1128, 1137–38 (9th Cir. 2005) (“The irreconcilable

constitutional problem . . . is that even though the disclosures sought here may serve a valid rehabilitative

purpose, they also may be starkly incriminating, and there is no disputing that the government may seek

to use such disclosures for prosecutorial purposes.”).

37

constitutional flaw in these programs, 18 while others have found such programs to violate the

Fifth Amendment. 19

Bleeke claims that “[i]f he refuses to participate while in prison he will be cited for a

disciplinary violation and will lose statutory credit time on his sentence.” (Appellant’s Br. at

47.) “Deducting credit time from an inmate’s incarceration because he refuses to admit sexual

offenses [in] Phase II of the SOMM program surely . . . rises to the level of compulsion for

purposes of the Fifth Amendment privilege against self-incrimination.” (Appellant’s Br. at 50.)

18

See, e.g., State v. Iowa Dist. Ct. for Webster Cnty., 801 N.W.2d 513, 528 (Iowa 2011) (applying Justice

O’Connor’s approach and concluding that “[t]he State is not using a threatened loss of credits to try to

extract testimony; instead, it is attempting to administer a bona fide rehabilitation program for sex

offenders who have already been found guilty under a statutory scheme that afforded them all required

due process.”), r’hing denied; Spencer v. State, 334 S.W.3d 559, 563–68 (Mo. Ct. App. 2010) (applying

Justice Kennedy’s approach and concluding that extending conditional release date to maximum prison

term and denial of good-time credits for refusal to participate in sex offender program do not constitute

atypical or significant hardships in relation to ordinary incidents of prison life), trans. denied; Dzul v.

State, 56 P.3d 875, 884–85 (Nev. 2002) (probation a form of leniency and defendant not penalized for

refusing to admit guilt to underlying offense during treatment—instead defendant was not given benefit

extended to those who accept responsibility for their wrongs); State v. Pritchett, 69 P.3d 1278, 1287 (Utah

2003) (no Fifth Amendment violation because probation statute “grants a privilege to which the convicted

child sex offender has no automatic right—placement in a resident treatment facility—in exchange for the

offender choosing to admit culpability” or “the offender can choose to serve out the mandatory term to

which he has been lawfully convicted”).

19

See, e.g., Johnson v. Fabian et al., 735 N.W.2d 295 (Minn. 2007) (applying Justice Kennedy’s approach

and finding that extending supervised release date constituted compulsion); State v. Fuller, 915 P.2d 809,

813–16 (Mont. 1996) (trial court’s threat to revoke suspended sentence for sex offense if defendant failed

to comply with treatment program, including requirement to disclose sexual history, threatened “a real

and significant punishment”); Bender v. N.J. Dep’t of Corr., 812 A.2d 1154 (N.J. Super. Ct. App. Div.

2003) (reading McKune to prohibit penalties creating lengthier incarceration, regardless of applying

Sandin test or Justice O’Connor’s framework); State ex rel. Tate v. Schwarz, 654 N.W.2d 438 (Wis.

2002) (State conceded that requiring inmate to admit guilt for offense of conviction while appeal was

pending constituted compulsion).

38

This reads as a facial challenge to the SOMM program, but it also includes a specific

challenge regarding its application to Bleeke in that the State actually used—and carried out—

the threat of re-incarceration as leverage to require Bleeke to provide potentially incriminating

statements during the second phase of the SOMM program. Regardless, we agree with those

other state and federal courts applying McKune and holding that this form of disciplinary

response does not constitute a “penalty” such that Bleeke would have been compelled to yield

his Fifth Amendment privilege. In doing so, we need not choose between Justice Kennedy’s

approach in McKune or Justice O’Connor’s, as we find Bleeke’s claim fails under both.

We begin by noting that Indiana’s credit time assignments, and the grounds for reduction

or deprivation, are established by statute. See Ind. Code §§ 35-50-6-4 (Supp. 2013) (credit time

assignments and grounds for reassignment), -5 (Supp. 2013) (grounds for deprivation of earned

time). And we have long said that these statutes “encourage inmates of penal institutes to behave

well while confined, improve their morale and thus help the prison authorities to maintain order

and control.” Dunn v. Jenkins, 268 Ind. 478, 485, 377 N.E.2d 868, 873 (1978). Cf. McKune,

536 U.S. at 39 (“An essential tool of prison administration . . . is the authority to offer inmates

various incentives to behave. The Constitution accords prison officials wide latitude to bestow

or revoke these perquisites as they see fit.”) (Kennedy, J., plurality opinion).

Such good time credits and classifications, however, are not constitutionally required—

and an inmate only acquires a liberty interest in those credits when they are actually awarded.

Cottingham v. State, 424 N.E.2d 105, 107 (Ind. 1981). And once that liberty interest attaches,

due process requires only certain protections before the good time credits may be revoked. See

Hadley v. Buss, 385 Fed.Appx. 600, 603 (7th Cir. 2010) (when inmate’s credit time reduced for

failure to participate in SOMM, “due process requires only that a prisoner receive written notice

of the charges at least 24 hours in advance of the hearing; an opportunity to present testimony

and evidence to a neutral decision-maker; and a written explanation supported by some evidence

in the record”). These due process requirements are therefore contained in the same statutes.

39

Ind. Code §§ 35-50-6-4(e), -5(b). And the statutes make clear that an inmate may “be deprived

of any part of the credit time the person has earned . . . [i]f the person is a sex offender . . . and

refuses to participate in a sex offender treatment program specifically offered to the sex offender

by the department of correction” while he or she is incarcerated. Ind. Code § 35-50-6-5(a)(6)

(2008).

Under Justice Kennedy’s analysis, losing earned credit time would not be an “atypical

and significant hardship[] . . . in relation to the ordinary incidents of prison life.” McKune, 536

U.S. at 38. To the contrary, this statutory scheme of carrot and stick is simply part and parcel of

life as an incarcerated inmate. Id. at 44 (“States may award good-time credits and early parole

for inmates who accept responsibility because silence in these circumstances does not

automatically mean the parole board, which considers other factors as well, will deny them

parole.”).

And when the purpose of the SOMM program is to reduce the recidivism rate of sex

offenders who are released back into society, providing prison officials with the option (subject

to due process protections) of reducing or revoking credit time for convicted offenders who

refuse to fully participate in the program while incarcerated—and thus not returning them back

into society as quickly because they are not rehabilitated—is “a sensible approach to reducing

the serious danger that repeat sex offenders pose to many innocent persons, most often children.”

Id. at 48.

The same would result under Justice O’Connor’s analysis. The DOC’s decision to assign

Bleeke to the SOMM program was based on a “fair criminal process”—his conviction for

attempted criminal deviate conduct. Cf. Webster Cnty., 801 N.W.2d at 527. And the statute

permitting the DOC to revoke Bleeke’s credit time, or reassign him to a credit-restricted class,

was the law when Bleeke committed his offense and when he was convicted. So to borrow from

the Iowa Supreme Court, “from the moment [Bleeke] committed his crime, it was clear that if he

40

was convicted and chose not to participate in the prescribed treatment program, he would not be

eligible for earned-time credits. That was the set of consequences for his conduct prescribed by

the legislature.” Id.

Moreover, there is no evidence that the DOC or the State is using the second phase of the

SOMM program as a fishing expedition to identify other uncharged crimes, or is threatening the

loss of credit time purely to compel incriminating testimony. “[I]nstead, it is attempting to

administer a bona fide rehabilitation program for sex offenders who have already been found

guilty under a statutory scheme that afforded them all required due process.” Id. at 528. And

even if Bleeke balked at the program and was threatened with a reduction in credit class or the

revocation of earned credits, those disciplinary actions could not be accomplished without the

additional due process protections spelled out in the Indiana Code. 20 Cf. McKune, 536 U.S. at

53 (“I believe the proper theory should recognize that it is generally acceptable to impose the risk

of punishment, however great, so long as the actual imposition of such punishment is

accomplished through a fair criminal process.”) (O’Connor, J., concurring). And there is no

evidence that the second phase of the SOMM program could be applied to extend an offender’s

period of incarceration beyond that of his original sentence—its only impact would be to reduce

the availability of an early release to parole, or limit access to other privileges within the prison

system.

20

For the same reasons, we reject Bleeke’s claim with respect to how the second phase of the SOMM

program was applied to him. Just as there is no automatic, blanket, or unqualified entitlement to early

release on parole, favorable credit status, or any other favorable prison privileges, neither did Bleeke have

an entitlement to remain in a community transition program when he refused to comply with its rules.

See Ind. Code §§ 35-50-6-4 (authorizing reassignment of credit class for violation of community

transition program rules), -5 (permitting deprivation of earned credit time for violation of community

transition program rules); see also Ind. Code § 11-10-11.5-11.5 (Supp. 2013) (providing for possibility of

return to DOC, or DOC disciplinary actions, for violation of community transition program rules).

41

And so while he was incarcerated, the State was permitted to present Bleeke—and all

SOMM inmates—with a constitutionally permissible choice: participate in the SOMM program

and maintain a more favorable credit status and/or privileges within the prison system or a

favorable assignment in a community transition program, or refuse to participate and instead

serve out the full term for which he had been lawfully convicted. Cf. Pritchett, 69 P.3d at 1287.

And that choice was Bleeke’s, and Bleeke’s alone. See McGautha v. California, 402 U.S. 183,

213 (1971) (“Although a defendant may have a right, even of constitutional dimensions, to

follow whichever course he chooses, the Constitution does not by that token always forbid

requiring him to choose.”).

But what Bleeke seeks instead is to have his cake and eat it too, by way of a third option:

refuse to participate in a program legitimately aimed at his rehabilitation, but yet still receive the

full benefits of a shortened sentence from a favorable credit class and be assigned to a

community transition program—and thus re-enter society more quickly, but without the benefits

of rehabilitative care. The State is not required to afford such an option to incarcerated inmates.

2. The SOMM Program’s Third Phase

We next turn to Bleeke’s claim that the third phase of the SOMM program—which

occurs while the offender is on parole—is also unconstitutional. Our analysis begins with

Minnesota v. Murphy, in which the U.S. Supreme Court examined the issue of whether

incriminating statements made by a probationer to his probation officer could be admitted into

evidence at a subsequent criminal prosecution. 465 U.S. at 422.

Murphy was on probation for false imprisonment (the original charge was criminal sexual

conduct), and as part of his probation he was required to participate in a sex offender treatment

program and be truthful with his probation officer—failure to comply could result in revocation

of his probation. At some point during his probation, Murphy’s treatment counselor informed

42

his probation officer that Murphy had admitted to an earlier rape and murder during a treatment

session. The probation officer met with Murphy and informed him of the report; she expressed

that her primary concern was the relationship between the prior rape and murder and the events

leading to his false imprisonment conviction, and its implications on Murphy’s treatment

program. Murphy admitted guilt for the rape and murder, the probation officer contacted law

enforcement, and Murphy was charged for the earlier crimes.

Murphy then sought to suppress his self-incriminatory statements, claiming they were

obtained in violation of the Fifth Amendment. The U.S. Supreme Court found that Murphy

failed to assert the privilege against self-incrimination in a timely manner and rejected his claim

that he was compelled to respond by virtue of the threat of his probation being revoked. Id. at

430–31, 434.

But even though Murphy provided his self-incriminating statements under the threat of

his probation being revoked—arguably a penalty—it was the nature of that threat that separated

Murphy’s case from the penalty cases, despite some superficial similarities. Id. at 435.

A State may require a probationer to appear and discuss matters

that affect his probationary status; such a requirement, without

more, does not give rise to a self-executing privilege. The result

may be different if the questions put to the probationer, however

relevant to his probationary status, call for answers that would

incriminate him in a pending or later criminal prosecution. There

is thus a substantial basis in our cases for concluding that if the

State, either expressly or by implication, asserts that invocation of

the privilege would lead to revocation of probation, it would have

created the classic penalty situation, the failure to assert the

privilege would be excused, and the probationer’s answers would

be deemed compelled and inadmissible in a criminal prosecution.

Id. It would be a different circumstance, however, “if the questions put to a probationer were

relevant to his probationary status and posed no realistic threat of incrimination in a separate

43

criminal proceeding.” Id. at 435 n.7. And “a State may validly insist on answers to even

incriminating questions and hence sensibly administer its probation system, as long as it

recognizes that the required answers may not be used in a criminal proceeding and thus

eliminates the threat of incrimination.” Id.

Nevertheless, even though Murphy’s statements to his probation officer were used in a

criminal proceeding, the Supreme Court found no Fifth Amendment violation because Murphy’s

probation conditions “merely required him to appear and give testimony about matters relevant

to his probationary status” and did not “require[] him to choose between making incriminating

statements and jeopardizing his conditional liberty by remaining silent.” Id. at 436. Murphy was

required to meet with his probation officer and tell the truth—and failure to do so could result in

his probation being revoked—but that was not sufficient “compulsion.” Id. That level of

compulsion was “indistinguishable from that felt by any witness who is required to appear and

give testimony, and . . . it is insufficient to excuse Murphy’s failure to exercise the privilege in a

timely manner.” Id. at 437.

Moreover, the Court saw no reason for assuming that the state of Minnesota intended “to

attach an impermissible penalty to the exercise of the privilege against self-incrimination”

because “[t]here is no direct evidence that Murphy confessed because he feared that his

probation would be revoked if he remained silent.” Id. And even if he possessed such a fear, it

would not have been reasonable because “[o]ur decisions have made clear that the State could

not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth

Amendment privilege.” Id. at 438. Instead, “Murphy revealed incriminating information instead

of timely asserting his Fifth Amendment privilege,” and “his disclosures were not compelled

incriminations.” Id. at 440. He therefore could not—at that point—invoke the privilege to

prevent the statements from being used against him at trial. Id.

44

We next turn to this Court’s decision in Gilfillen v. State, 582 N.E.2d 821 (Ind. 1991), in

which we confronted the question of whether a probationer’s probation was properly revoked

when he refused to admit guilt for the underlying offense during court-ordered counseling

sessions. Terry Gilfillen had been convicted on several counts of child molestation and incest,

and received an aggregate sentence of eight years, with three suspended and two years ordered to

probation following his jail term. A condition of the probation was that the defendant receive

counseling. A year into his probation, Gilfillen’s probation officer received a letter from his

counselor saying that Gilfillen was only attending sessions because he was required to under the

terms of his probation and to prove his innocence—he was not working on his sexual abuse

treatment. Gilfillen was directed to enroll in a different program, but was turned down because

he continued to deny having a sexual abuse problem and claimed innocence; the probation

officer then filed a notice of probation violation and the trial court revoked Gilfillen’s probation.

We reversed, finding that Gilfillen was attending the required sessions and that was all

that was required under the trial court’s order. Id. at 824. And we noted that

he did not plead guilty and, therefore, has not admitted to having

any child molesting problem. In fact, he continues to protest his

innocence. Under these circumstances, requiring Gilfillen to admit

that he has a problem with child molesting or face revocation of

probation is tantamount to requiring that he admit that he is guilty

of the crimes charged. Clearly, this is unacceptable.

Id. We recognized that “probation is a matter of grace,” subject to the trial court’s discretion,

and that reasonable conditions may be placed on a probationer; and we acknowledged that a

defendant’s continued denial of guilt might render him or her an inappropriate candidate for

probation in the first place. Id. But “thought control” is not a reasonable condition of probation,

45

and “[t]hus, in a circumstance such as this, where the defendant has not pled guilty but was

instead convicted while denying guilt, [a] trial court may not insist on an admission of guilt as a

condition of probation or use a continued denial of guilt as the basis for revocation.” Id. 21

Bleeke points to Murphy and Gilfillen as standing for the principle that revoking an

individual’s probation for refusing to answer incriminating questions unrelated to the probation

would be impermissible under the Fifth Amendment, and says the same would be true for a

parolee required to answer self-incriminating questions under the SOMM program. But while

we agree that those cases are informative, we disagree that they control the outcome here.

In Murphy the concern was a probation officer using the threat of incarceration as

grounds for compelling the defendant to answer self-incriminating questions that were not

relevant to the terms of his probation—but at the same time, the Court did not foreclose the State

from revoking probation “for a refusal to answer that violated an express condition of

probation.” Murphy, 465 U.S. at 435 n.7. And in Gilfillen, the concern was the trial court itself

seeking to compel an admission of guilt, as a pre-condition to the exercise its discretion, when

the defendant has consistently claimed innocence. In essence, the trial court in Gilfillen was

trying to impose its own plea arrangement on the defendant—an exercise of “thought control”

that we concluded was an unacceptable abuse of discretion. 582 N.E.2d at 824.

Neither of those issues or contexts is implicated in this case. Here, Bleeke’s compliance

with the SOMM program and performance of polygraphs is an express condition of his parole

21

We did not specify it in Gilfillen, but in State v. Moore, 909 N.E.2d 1053, 1056 n.1 (Ind. Ct. App.

2009), trans. denied., the Court of Appeals noted that Gilfillen’s rationale was implicitly grounded in the

Fifth Amendment.

46

and is highly relevant to his successful reintegration into society. And this is not a circumstance

where a trial court is setting a more lenient sentence for Bleeke, and then threatening to increase

that sentence if Bleeke fails to admit his guilt for the underlying offense.

Moreover, Bleeke ignores the difference between probation and parole. Probation, as we

said above, is a matter of judicial grace and discretion as a deliberate sentencing alternative to be

imposed in lieu of incarceration—a probationer is not under the control of the DOC. His or her

compliance is controlled by the sentencing court, with enforcement through its own probation

officers.

But the DOC and the Parole Board placing an offender on parole is not an action of

judicial discretion. “A parole is not a suspension of a sentence.” Jenkins v. Madigan, 211 F.2d

904, 906 (7th Cir. 1954). Rather, “[i]t is a substitution during the continuance of the parole, of a

lower grade of punishment, by confinement in the legal custody and under the control of the

warden within the specified prison bounds outside the prison, for the confinement within the

prison adjudged by the court.” Id. So “[w]hile a parole is an amelioration of punishment, it is, in

legal effect, still imprisonment.” Overlade v. Wells, 234 Ind. 436, 446, 127 N.E.2d 686, 691

(1955) (internal citation omitted). “While on parole the prisoner remains in the legal custody of

the parole agent and warden of the prison from which he is paroled until the expiration of the

maximum term specified in his sentence or until discharged as provided by law.” Id. at 446, 127

N.E.2d at 690.

So Bleeke’s early release from imprisonment to parole is a matter of executive and

legislative grace and clemency. It is a privilege afforded to him—a lower grade of punishment—

for his compliance with prison rules and policies, including the SOMM program, as well as any

number of other behavioral or rehabilitative programs that the DOC and the General Assembly

might endorse. It neither excuses, nor waives, nor vitiates the remainder of his fixed term of his

imprisonment. And the revocation of his parole does not mean he goes from being at full liberty

47

to being fully detained, as he portrays it—instead it means he goes from being detained at a

comparatively low level back to being fully detained. In that way it is little different, in the pure

legal sense, than him being reassigned from a minimum-security facility, or a community

transition program, to a medium- or maximum-security facility for violating prison rules and

policies.

And along these same lines, Bleeke also argues that just as he would lose credit time for

failing to participate in the program while incarcerated, “[i]f he refuses to participate as a parolee

he will have his parole revoked.” (Appellant’s Br. at 47.) “A parolee who will not admit he

committed the underlying crime or crimes cannot successfully complete treatment, that is unless

he ‘passes’ a lie detector test on the subject.” (Appellant’s Br. at 48.) Likewise, he says,

refusing to submit to polygraphs about his sexual history “would result in a revocation of parole,

extending incarceration.” (Appellant’s Br. at 48.)

However, a person whose parole is revoked “shall be imprisoned for all or part of the

remainder of the person’s fixed term.” Ind. Code § 35-50-6-1(c) (Supp. 2013). The statute does

not permit the imposition of an additional sentence to the fixed term. Furthermore, the violation

of a parole condition cannot be used as grounds to deprive a parolee of previously earned credit

time, nor may it be the basis for reassignment to a new credit class. Ind. Code §§ 35-50-6-4,

-5(a). And as we further explained the relationship between credit time and parole in Boyd v.

Broglin,

[c]redit time is a statutory reward for a lack of conduct that is in

violation of institutional rules. It is earned toward release on

parole for felons, and does not diminish the fixed term or affect the

date on which a felony offender will be discharged. . . . A felon

serving a sentence which was imposed under Ind. Code § 35-50-1-

1 et seq. is released on parole . . . after service of his fixed term

less the credit time earned with respect to that term. . . . A felon

sentenced under Ind. Code § 35-50-1-1 et seq. is on parole until the

expiration of his fixed term, until discharged by action of the

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Indiana Parole Board, or for a period of one year, whichever event

first occurs, unless the Indiana Parole Board revokes the

parole. . . . [T]he legislative intent is clear that credit time is

applied only toward the date of release on parole for felons and

does not diminish the fixed term.

519 N.E.2d 541, 542–43 (Ind. 1988). In other words, Bleeke’s participation in the SOMM

program while incarcerated (or in the community transition program) provided a benefit that

made him eligible for an early release to parole. Once on parole, participation in the SOMM

program kept him from returning to prison to serve out his fixed term—non-participation would

not extend his fixed term, nor would it take away his previously earned credit time. And

returning to incarceration does not deprive a former parolee of the opportunity to continue

earning credit time that would allow him or her to qualify for reinstatement to parole before the

conclusion of the fixed term. See Ind. Code § 35-50-6-1(c).

So to the extent Bleeke argues that the potential revocation of his parole for failure to

comply with the SOMM program would extend his incarceration, and thereby violate his Fifth

Amendment privilege because it would send him back to jail from parole to serve out his fixed

term, that argument fails. For the same reasons we provided above with respect to the second

phase of the SOMM program, such a circumstance would fall under the Parole Board’s power to

offer a constitutionally permissible choice to a lawfully convicted offender: comply with your

parole requirements, or serve out the full sentence received as a result of your lawful conviction.

We do recognize, however, that the parole statutes create the possibility of a lengthier

period of parole for sex offenders, when compared to the offender’s fixed term of incarceration.

This is because Ind. Code § 35-50-6-1(b), which provides that “[a] person released on parole

remains on parole from the date of release until the person’s fixed term expires, unless the

person’s parole is revoked or the person is discharged from that term by the parole board,” and

requires the Parole Board to discharge a parolee after the period of parole set by the statute “or

the expiration of the person’s fixed term, whichever is shorter,” does not apply to sex offenders.

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Instead, Ind. Code § 35-50-6-1(d) provides that “[w]hen a sex offender . . . completes the

sex offender’s fixed term of imprisonment, less credit time earned with respect to that term, the

sex offender shall be placed on parole for not more than ten (10) years.” See also Ind. Code

§ 35-50-6-1(b) (“This subsection does not apply to a person described in subsection (d)”).

So it is theoretically possible, under Indiana’s parole statutes, for a sex offender to be

released from incarceration after serving a portion (or all) of his or her fixed term of

imprisonment, and then receive a statutorily mandated assignment to parole for a period which

exceeds the time remaining on that fixed term. The statutes do not provide a consequence for if

such a parolee violates his or her parole after the expiration of the fixed term. So if, say, such a

parolee refused to take a polygraph related to his sexual history because he or she believed it

would provide self-incriminating responses without the promise of immunity, could the Parole

Board send the parolee to jail? Would the threat of such a period of incarceration—imposed

above and beyond the now-expired original sentence—constitute an attempt at unconstitutional

compulsion?

But that scenario is not before us today. Here, Bleeke was sentenced in 2005 to an

aggregate term of ten years in prison. He remained incarcerated until 2008, when he was

released to a community transition program. And he began parole in 2009, with his parole set to

run until 2015. His parole therefore appears matched to his fixed term of incarceration, and there

seems to be no risk that he will be subject to its conditions beyond his original release date (nor

does he present such a claim). So to the extent he risks a return to prison for failure to comply

with the third phase of the SOMM program, that return to prison is merely to serve the remainder

of his fixed sentence, and its threat is not compulsion in violation of his Fifth Amendment

privilege against self-incrimination.

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Conclusion

We therefore reverse the trial court’s grant of summary judgment in favor of the Parole

Board with respect to Bleeke’s additional parole conditions 4, 5, 17, 19, and 20, and remand with

instructions that it enter an order enjoining the Parole Board from enforcing those conditions.

We summarily affirm the Court of Appeals opinion below with respect to its analysis of Bleeke’s

additional parole conditions 8, 15, 17, and 19, and his challenges to Ind. Code §§ 11-13-3-4(g)

and 35-42-4-11, and remand with instructions that the trial court also enter an order enjoining the

Parole Board from enforcing conditions 8 and 15 unless it clarifies them first, and enjoining the

Parole Board from enforcing those statutory parole conditions derived from the

unconstitutionally overbroad labeling of Bleeke as an “offender against children.” But we affirm

the trial court’s grant of summary judgment in favor of the Parole Board with respect to Bleeke’s

remaining additional conditions.

And we likewise affirm the trial court’s grant of summary judgment to the Parole Board

with respect to Bleeke’s claims about the constitutionality of the SOMM program. The program

is a valuable tool aimed at the legitimate purpose of rehabilitating sex offenders before they are

fully released from State control, and its requirements do not violate the Fifth Amendment’s

privilege against self-incrimination.

Dickson, C.J., Rucker, Massa, and Rush, JJ., concur.

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