The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1570
CHARLES PETER ALLISON, et al.,
Plaintiffs-Appellees,
v.
DONALD N. SNYDER, JR., MARK S. CARICH,
and MICHAEL L. HOLMES,
Defendants-Appellants.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 97-432-MJR—Michael J. Reagan, Judge.
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ARGUED MAY 28, 2003—DECIDED JUNE 19, 2003
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Before EASTERBROOK, MANION, and KANNE, Circuit
Judges.
EASTERBROOK, Circuit Judge. Persons charged with
sex offenses in Illinois may be diverted before trial to civil
confinement, if a mental illness of a least one year’s dura-
tion led to the criminal conduct. Those who complete
treatment successfully are released and the criminal
charges dismissed. The Illinois Sexually Dangerous Per-
sons Act, 725 ILCS 205/1.01 to 12, is described, and sus-
tained against one constitutional challenge, in Allen v.
Illinois, 478 U.S. 364 (1986). In this suit under 42 U.S.C.
§1983, twenty-seven persons committed under the Act
contend that it is being implemented unconstitutionally
2 No. 03-1570
in at least three ways: first, they are confined in one wing
of an institution that also serves as a prison; second, their
treatment includes self-accusatory features; third, it is
conducted on a group rather than an individual basis.
Plaintiffs seek both damages and injunctive relief. After
discovery was completed, the district judge resolved some
claims in favor of some defendants on summary judg-
ment. But he rejected three defendants’ argument that
qualified immunity protects them from damages liability.
These three have filed an interlocutory appeal. See Behrens
v. Pelletier, 516 U.S. 299 (1996); Scott v. Lacy, 811 F.2d
1153 (7th Cir. 1987). The initial step in evaluating any
immunity defense is determining whether the complaint
states a claim, see Saucier v. Katz, 533 U.S. 194, 201
(2001), so we discuss the merits along with the question
whether the legal principles on which plaintiffs rely were
so clearly established that persons in defendants’ posi-
tion had to understand that what they were doing vio-
lated the Constitution.
All of the plaintiffs are confined at Big Muddy River
Correctional Center. The three appellants are Donald
Snyder, former Director of the Department of Corrections;
Michael Holmes, the Warden of Big Muddy; and Mark
Carich, its Public Service Administrator and the principal
designer of the programs to which plaintiffs object. Snyder
assigned plaintiffs to Big Muddy, where they mingle
with convicts at meals and on some other occasions. Some
detainees are housed two to a cell (though never with a
convicted inmate). According to plaintiffs, these arrange-
ments violate the Constitution because civil detainees
are entitled to housing at facilities separate from convicts,
and in the “least restrictive” environment. Plaintiffs’ prin-
cipal problem is the lack of any federal authority for these
propositions. They contend, to quote their brief:
Plaintiffs have not claimed that it is unconstitu-
tional, per se, for them to be confined to a facility
No. 03-1570 3
that is labeled a “prison” and that also houses
criminally convicted inmates. Their claim is a more
general one that the Constitution requires them
to be placed “in the least restrictive environment
consistent with the purposes of the [Sexually Dan-
gerous Persons Act]” and that they be provided
“housing, recreation, education and treatment in
facilities segregated from the general prison popula-
tion as required by the SDPA.”
The argument, in other words, is that the Constitution
requires Illinois to fulfill promises that the plaintiffs locate
in a state statute. Yet the Constitution does not com-
pel states to follow their own laws. See DeShaney v.
Winnebago County Department of Social Services, 489
U.S. 189, 202 (1989); Snowden v. Hughes, 321 U.S. 1, 11
(1944); Archie v. Racine, 847 F.2d 1211, 1215-18 (7th Cir.
1988) (en banc). Nor does it permit a federal court to en-
force state laws directly. See Pennhurst State School &
Hospital v. Halderman, 465 U.S. 89, 106 (1984). Plaintiffs
need a genuinely federal rule, such as the principle articu-
lated in Youngberg v. Romeo, 457 U.S. 307, 321-22 (1982),
that “[p]ersons who have been involuntarily committed
are entitled to more considerate treatment and conditions
of confinement than criminals whose conditions of confine-
ment are designed to punish.” Although the Court rejected
in Youngberg an argument that the state must estab-
lish the “necessity” of keeping detainees in close custody,
it held that they are entitled to “the exercise of profes-
sional judgment as to the needs of residents” (id. at 322).
Seling v. Young, 531 U.S. 250, 265 (2001), generalizes the
proposition this way: “due process requires that the con-
ditions and duration of confinement . . . bear some reason-
able relation to the purpose for which persons are com-
mitted.”
Thus detainees may be subjected to conditions that
advance goals such as preventing escape and assuring the
4 No. 03-1570
safety of others, even though they may not be punished. See
Allen, 478 U.S. at 373-74. Does placement in a prison,
subject to the institution’s usual rules of conduct, signify
punishment? The answer, given by Bell v. Wolfish, 441
U.S. 520 (1979), is no. Wolfish held that pretrial de-
tainees, who like civil committees may be held for security
reasons but not punished, may be assigned to prisons and
covered by the usual institutional rules, which are designed
to assure safety and security. Our plaintiffs were not as-
signed to high-security institutions, solitary, lockdown, or
otherwise onerous confinement. And one must keep in
mind that they are pretrial detainees as well as civil
committees: criminal charges against them are pending.
If pretrial detainees may be subjected to the ordinary
conditions of confinement, as Wolfish holds, then so may
persons detained before trial as sexually dangerous persons.
Plaintiffs do not assert that their situation is worse in
any material way than the situation in which ordinary
pretrial detainees find themselves. They do not contend, for
example, that accused sex offenders suffer injury at the
hands of convicted prisoners at Big Muddy more often than
at each others’ hands, something that if true might be
thought to imply that they have been mixed with convicts
because of (rather than in spite of) the special risks of
violence in prison. Details such as double celling add
nothing to plaintiffs’ contentions. Wolfish rejected an
argument that this practice equates to punishment. 441
U.S. at 530-43. College dorms, hospitals, and military
barracks house people more than one to a room without
amounting to punishment. Just so at Big Muddy. Plain-
tiffs initial challenge to their confinement therefore fails
on the merits, making it unnecessary to consider immunity.
Youngberg, Allen, and Seling all show that detainees
are entitled to some kind of treatment—but plaintiffs
don’t like the kind on offer. Illinois has concluded that
the best treatment for sex offenders is group therapy in
No. 03-1570 5
which people admit their crimes (to others as well as to
themselves), own up to and confront the urges that drive
them to perpetrate heinous acts, and then assist each
other in overcoming those urges. Illinois administers
polygraph examinations to check whether participants
in this program are being candid. Its approach is similar
to the one described, and sustained against constitutional
challenge, in McKune v. Lile, 536 U.S. 24 (2002). The
principal ground of attack in McKune was that the state
did not supply use immunity for information obtained in
its self-accusatory program. The Court replied, in part,
that immunity was unnecessary because participation in
the program was voluntary; completion of the program
entitled the offender to early release. Our plaintiffs say
that, because they have not been convicted, they also can’t
earn early release and that their participation is accord-
ingly involuntary. True enough, the plaintiffs in McKune
had been convicted while our plaintiffs have not been,
but each group enjoys an opportunity to get out earlier.
Plaintiffs are free to turn down the treatment Illinois
offers. This may make it harder to show that their prob-
lems are behind them, that release is in order, and that
the criminal charges should be dismissed, but this does
not make the choice any less willing or intelligent. An
accused who turns down a plea bargain (or declines to
assist the prosecutors) may end up with a longer sen-
tence, but this does not vitiate the choice to confess. See
United States v. Klotz, 943 F.2d 707, 710-11 (7th Cir. 1991).
Illinois contends, as Kansas did in McKune, that no
participant in the treatment program ever has been crimi-
nally prosecuted on account of acts to which the partici-
pant admitted during the program. Plaintiffs do not offer
any contrary evidence. They do say that, because crim-
inal charges are pending against each of them, they are
at greater risk than the Kansas inmates of a change in
state practice. Nothing in the formal rules would prevent
6 No. 03-1570
Illinois from using statements made in the program as
confessions in the event a detainee’s treatment is deemed
unsuccessful, his civil confinement ends, and the pend-
ing criminal charges are reactivated. This possibility is
not, however, a ground of recovery. A majority of the
Justices concluded in Chavez v. Martinez, No. 01-1444 (U.S.
May 27, 2003), that courts may not award damages
against investigators who wrongfully induce suspects to
supply incriminating information that is never used in a
criminal prosecution. Four Justices (Thomas, J., joined
by Rehnquist, C.J., and O’Connor & Scalia, JJ.) held this
because the self-incrimination clause applies only to
evidence used in a criminal case; two Justices (Souter, J.,
joined by Breyer, J.) held this because any judicially crafted
expansion of the clause should be implemented by rem-
edies other than money damages. Although a different
majority (Souter, J., joined by Stevens, Kennedy, Ginsburg
& Breyer, JJ.) left open the possibility that damages could
be awarded under a substantive-due-process theory in the
event of genuine physical or mental coercion to speak, our
plaintiffs do not contend that their arms were twisted or
their health imperiled. So no matter what one makes of
the risk that some day Illinois will use against a de-
tainee evidence gathered in its treatment program, no
damages remedy is available. Plaintiffs would be free to
ask the court to suppress evidence offered against them;
they are entitled to no more than that option.
Youngberg holds that, under the due process clause,
detainees are entitled to non-punitive programs de-
signed using the exercise of professional judgment. As the
Court stated in McKune, many specialists think that self-
accusatory features are essential to treatment (just as
alcoholics must admit that they have a problem). Plaintiffs
disagree with this proposition, and they distrust poly-
graphs, but neither Youngberg nor any other decision
holds that judges or juries may substitute their judgment
No. 03-1570 7
for that of the professionals who design such programs.
This suit is not about whether polygraphs are reliable
enough for the results to be used in court; it is about
whether wardens and psychologists must pay damages
for using them (and other devices) as part of thera-
peutic programs. The answer is no; it is not clearly es-
tablished (indeed, it is not the law) that self-accusa-
tory programs and polygraph machines are forbidden
when treating sex offenders. As far as the Constitution
is concerned, it is enough that judgment be exer-
cised. That the Association for the Treatment of Sexual
Abusers (whose position papers may be found at
<http://www.atsa.com/pubPPapers.html>) recommends pro-
grams different from the one Illinois uses is neither here
nor there. The Constitution does not command state
officials to follow the majority view of a given professional
association. Plaintiffs have not supplied any reason for
us to conclude that the choices made by Illinois are so
far outside the bounds of professional norms that they
must be equated with no professional choice at all. In-
deed, plaintiffs have not adduced any expert evidence,
period. (At the last minute they tendered a letter by a
consultant whose principal writings have had to do with
victims’ recovered memories. This unsworn document,
which showed up after the discovery deadline, has no
evidentiary significance.) Nor have they cited any scholarly
literature. The defendants’ contention that Illinois is us-
ing programs that represent the application of reputable
professional judgment stands without any serious contest.
As for plaintiffs’ contention that treatment must be
tailored to each individual rather than administered to
groups: one court of appeals has said this (without ex-
planation), see Ohlinger v. Watson, 652 F.2d 775, 778-79
(9th Cir. 1980), but what Youngberg held two years later
is that (a) committed persons are entitled to some treat-
ment, and (b) what that treatment entails must be decided
8 No. 03-1570
by mental-health professionals. Youngberg deprived the
unreasoned assertion in Ohlinger of whatever slight
value unreasoned judicial assertions otherwise carry. For
reasons we have given, it is not possible to say on this
record that Illinois’ program exceeds the domain of legiti-
mate professional judgment. The three appellants prevail
on the merits, without any need for qualified immunity.
REVERSED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-19-03