Amicus Curiae Brief — Ohio Adult Parole Authority v. Woodard

z Supreme Court, U.S.

WY AUS 21 1997

No. 96-1769

CLERK

nese aaa emreernannnommenn

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

OHIO ADULT PAROLE AUTHORITY, et al.,

Petitioners,

vs.

EUGENE WOODARD,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

KENT S. SCHEIDEGGER

CHARLES L. HOBSON*

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Telephone: (916) 446-0345

Attorneys for Amicus Curiae

Criminal Justice Legal Foundat.on

* Attorney of Record

roe Cts ae

as Sans:

QUESTIONS PRESENTED

1) Can the federal judiciary interfere with a state’s clem-

ency process?

2) Does a pri have a right to immunity for any

testimony given during a clemency interview?

3) Does the doctrine of unconstitutional conditions extend

beyond the First Amendment?

TABLE OF CONTENTS

Er PEELE Le ETE Pee i

pI SS IS Le ey See Vv

re i vesckesgecosetevestsserdl l

i : .) veas cawhgebanne¥s dv ebe 2

EE fin cok de oGule cb gu 640 busevescice 3

PEED Gab hcbuacdbeccsgicdccncbeccceensstvecce 4

I

The federal judiciary cannot interfere with the clemency

ED pe S bbe eee cecdnbervcccvocssiccoocccccees 4

II

Elevating government benefits into constitutional rights

improperly discourages government benevolence ...... 6

Ill

A prisoner whose conviction is final has no privilege against

self-incrimination regarding the circumstances of the

COMVICTION OF SEMPEMICE .. ww cece ce cece eceees 10

A. No self-incrimination ...................... 10

hy PE é pdcbbeccccccovésccrceececs 12

IV

The doctrine of unconstitutional conditions should be limited

to the First Amendment ..........cccccsccccccess 16

A. First Amendment roots ..............6.0005 16

(iii)

Vv

TABLE OF AUTHORITIES

Cases

Adams v. United States ex rel. McCann, 317 U. S. 269,

87 L. Ed. 268, 63 S. Ct. 236 (1942) ................ 25

Allen v. Illinois, 478 U. S. 364, 92 L. Ed. 2d 296,

ed Cowie a Se esbaeesceecese 11

Andrus v. Allard, 444 U. S. 51, 62 L. Ed. 2d 210,

ee cee ke ene dbabeadseecces 24

Baggett v. Bullitt, 377 U. S. 360, 12 L. Ed. 2d 377,

ES ib. inc cou eedbewsive ce ee ces 18

Ballard v. United States, 329 U. S. 187, 91 L. Ed. 181,

vc wn ccd wdgdapbewerceecccees 26

Board of County Commissioners v. Umbehr,

135 L. Ed. 2d 843, 116 S. Ct. 2342 (1996) ....... 21, 23

Bordenkircher v. Hayes, 434 U. S. 357, 54 L. Ed. 2d 604,

i ccconkceséeeeeteeveoares 27, 28

Brady v. United States, 397 U. S. 742, 25 L. Ed. 2d 747,

as Oe ae dw ciesid'ead ee 25

Browder v. Director, Ill. Dept. of Corr., 434 U. S. 257,

54 L. Ed. 2d 521, 98 S. Ct. 556 (1978) ............. 11

Cafeteria Workers v. McElroy, 367 U. S. 886,

6 L. Ed. 2d 1230, 81 S. Ct. 1743 (1961) ............ 17

Cammarano v. United States, 358 U. S. 498, 3 L. Ed. 2d 462,

ie ches nde ctbiede veounbans 29

Coleman v. Thompson, 501 U. S. 722, 115 L. Ed. 2d 640,

iD .< i6> capapedecsessueenecs 6, 15

Colorado v. Connelly, 479 U. S. 157, 93 L. Ed. 2d 473,

Be es DURE wo dceccesesccedeevesoseneces 29

Connecticut Board of Pardons v. Dumschat, 452 U. S. 458,

69 L. Ed. 2d 158, 101 S. Ct. 2460 (1981) ... 4,5,7, 8,14

Connick v. Myers, 461 U. S. 138, 75 L. Ed. 2d 708,

103 S. Ct. 1684 (1983) ... 2... 6... cece 18, 19, 28, 30

Cramp v. Board of Public Instruction, 368 U. S. 278,

7 L. Ed. 2d 285, 82 S. Ct. 275 (1961) ........60055. 18

Dolan v. City of Tigard, 512 U. 8. 374, 129 L. Ed. 2d 304,

566 B Ch BE nba ccb ctecunacacdunenasees 23

Douglas v. California, 372 U. S. 353, 9 L. Ed. 2d 811,

ODE Ge GR b co cdecontedncaptdenesoces nett 5

Elfbrandt v. Russell, 384 U. S. 11, 16 L. Ed. 2d 321,

BEB. GE, Cee cccccncedcdadcaucecsbeccees 18

Evitts v. Lucey, 469 U. S. 387, 83 L. Ed. 2d 821,

OOS ©. Ce, GR obec cccenesscsdcéodeé cine 2,5

Ferguson v. Skrupa, 372 U. S. 726, 10 L. Ed. 2d 93,

GPE. Ca, PEED baa Gc dcwsedangcndenasdsscas 20

Forsythe Co. v. Nationalist Movement, 505 U. S. 123,

120 L. Ed. 2d 101, 112 S. Ct. 395 (1992) ........... 29

Gomez v. Fiero, 136 L. Ed. 2d 204,

SOP GC Bee 6ab0000ks cAubetadbecevnserss 8

Graham v. Richardson, 403 U. S. 365, 29 L. Ed. 2d 534,

OD, Ck Ce 6 0 ovat 0bh6s00045005000005-~ 17

Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1,

60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979) ............. 7

Hawk v. Olson, 326 U. S. 271, 90 L. Ed. 61,

SU Soe HO ands Wetatutcdedeccaadadte 1]

Herrera v. Collins, 506 U. S. 390, 122 L. Ed. 2d 203,

SE asi dav xctcotustonnas 6, 9, 10, 12

vii

Hewitt v. Helms, 459 U. S. 460, 74 L. Ed. 2d 675,

Pe ED sews ubbics ee Bisbee bust ceces ss 8

Hudson County Water Co. v. McCarter, 209 U. S. 349,

52 L. Ed. 828, 28 S. Ct. 529 (1908) ................. 6

In re Blodgett, 502 U. S. 236, 116 L. Ed. 2d 669,

i chris tuts ceiwoue ws ee vocccede 8

In re Gault, 387 U. S. 1, 18 L. Ed. 2d 527,

REN AE Seat Ae ee 11

Kentucky Department of Corrections v. Thompson,

490 U. S. 454, 104 L. Ed. 2d 506,

EE 8

Keyishian v. Board of Regents, 385 U. S. 589,

17 L. Ed. 2d 629, 87 S. Ct. 675 (1967) ............. 18

Kokkonen v. Guardian Life Ins. Co. , 511 U. S. 375,

128 L. Ed. 2d 391, 114 S. Ct. 1673 (1994) .......... 17

Lefkowitz v. Cunningham, 431 U. S. 801, 53 L. Ed. 2d 1,

FORE aE RE Ce a 14

Lefkowitz v. Turley, 414 U. S. 70, 38 L. Ed. 2d 274,

SER ARR Sete aE 12

Lochner v. New York, 198 U. S. 45, 49 L. Ed. 937,

inn oto od po ceewewns iti sas 20

Machibroda v. United States, 368 U. S. 487, 7 L. Ed. 2d 473,

EA ccd iecchtuesdidectueu sen 25

Maher v. Roe, 432 U. S. 464, 53 L. Ed. 2d 484,

EE 6-054 op cecsddweedaviedecde’ s 29

Mandeville Island Farms, Inc. v. American Crystal Sugar Co.,

334 U.S. 219, 92 L. Ed. 1328, 68 S. Ct. 996 (1948) ... 20

Minnesota v. Murphy, 465 U. S. 420, 79 L. Ed. 2d 409,

ee Rr: 11, 13, 14, 15

viii

Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694,

86 S. Ct. 1602 (1966) 2.2... cee eee eee 13

Murphy v. Waterfront Commission, 378 U. S. 52,

12 L. Ed. 2d 678, 84 S. Ct. 1594 (1964) ......... 11, 13

Murray v. Giarratano, 492 U.S. 1, 106 L. Ed. 2d 1,

109 S. Ct. 2765 (1989) 2... cee eens 6, 15

New State Ice Co. v. Liebmann, 285 U. S. 262, 76 L. Ed. 747,

53GB. Ca. STD CAGSED sc c ccccccccccvbenebaste<soben 9

Nollan v. California Coastal Comm'n, 483 U. S. 825,

97 L. Ed. 2d 677, 107 S. Ct. 3141 (1987) ........ 21, 22

Olim v. Wakinekona, 461 U. S. 238, 75 L. Ed. 2d 813,

263 B. Ce. IPOR AIDED odio dosecies Se csaUts te veces 8

Paul v. Virginia, 8 Wall. 168, 75 U. S. 168,

2 Sl erry rrr rer 20

Pennsylvania v. Finley, 481 U. 8. 551, 95 L. Ed. 2d 539,

OOP B. Ca: IGBR CIGD <0 ce cc cd eetedseccetcvine 6

Perry v. Sindermann, 408 U. S. 593, 33 L. Ed. 2d 570,

> Pee ft. eye ree 16-19, 21, 23

Pickering v. Board of Education, 391 U. S. 563,

20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968) ............ 18

Pillsbury Co. v. Conboy, 459 U. S. 248, 74 L. Ed. 2d 430,

06D B. Ce. GOS CIGET) . no dec carve cvccccccdeseses 10

Regan v. Taxation With Representation of Wash.,

461 U. S. 540, 76 L. Ed. 2d 129,

2) Fok, 6: 9 Ferrer errr 18, 29

Reno v. ACLU, 521 U.S.__, 65 U. S. L. W. 4715

Cae SE, BERG dcwdesBebeibovdecosvechccdestss 29

Rogers v. Peck, 199 U. S. 425, 50 L. Ed. 256,

BOR GE, BF GIRO howe ke veces dtcsdsdinee dubace bie 6

ix

Ross v. Moffitt, 417 U. S. 600, 41 L. Ed. 2d 341,

Tt PTT ree Oe eee 7

Ruckelshaus v. Monsanto Co., 467 U. S. 986,

81 L. Ed. 2d 815, 104 S. Ct. 2862 (1984) ........ 25, 26

Sable Communications of California, Inc. v. FCC,

492 U.S. 115, 106 L. Ed. 2d 93,

Eh nob dacendevessedcessécedes 29

Sandin v. Conner, 132 L. Ed. 2d 418,

Es ca atin wanes (uneib obec 5, 7, 8,9

Santobello v. New York, 404 U. S. 257, 30 L. Ed. 2d 427,

SE EE, bc Sac cbalnckeboiebs cubis scee 25

Schick v. Reed, 419 U. S. 256, 42 L. Ed. 2d 430,

PP en nso ncccckcdnebesdbevdsecddocces 5

Shapiro v. Thompson, 394 U. S. 618, 22 L. Ed. 2d 600,

Se SE ok nbccdccvbeteesbedeiceds 17

Shelton v. Tucker, 364 U. S. 479, 5 L. Ed. 2d 231,

ee ee in wondcccss dnbesbbeedoiccavs 18

Sherbert v. Verner, 374 U. S. 398, 10 L. Ed. 2d 965,

i i.) is vcdenbs ches bedeias den 18, 19

Snyder v. Massachusetts, 291 U. S. 97, 78 L. Ed. 674,

PR MEET REACHES bMde Che eegaehe vos. 23

Southern R. Co. v. Greene, 216 U. S. 400, 54 L. Ed. 536,

PR a ED bn niné die odes bceebbeiebebhdce- 21

Speiser v. Randall, 357 U. S. 513, 2 L. Ed. 2d 1460,

oe Ee PET OP EEEe TE 17, 18

Tehan v. Shott, 382 U. S. 406, 15 L. Ed. 2d 453,

eee a SPC Ss hn dbd cdsdubcadde dbkcdadses 11

Torcaso v. Watkins, 367 U. S. 488, 6 L. Ed. 2d 982,

ee es Sa dns ddeuduededbuerbenveds 18

United Public Workers v. Mitchell, 330 U. S. 75,

91 L. Ed. 754, 67 S. Ct. 556 (1947) .........6 2. eee 18

United States v. Chicago, M. St. P. & P. R. Co.,

282 U. S. 311, 75 L. Ed. 359,

ee a, EE cv ori vise Codcedcadscnaeres 19, 20

United States v. Dunnigan, 507 U. S. 87, 122 L. Ed. 2d 445,

jet ho Re eee oe rere oe 15

United State v. Lowden, 308 U. S. 225, 84 L. Ed. 208,

GOS; GR BOG CIB 6 x ann sbntnten sad tevewsee te. 20

United States v. Monia, 317 U. S. 424, 87 L. Ed. 376,

Be eer kre 7 eee 13

United States v. Raines, 362 U. S. 17, 4 L. Ed. 2d 524,

BP is Gh Pa IE sen oie vaccuescngtbbadseeceuees 29

United States v. Robel, 389 U. S. 258, 19 L. Ed. 2d 508,

Be Ch SEP EI io nccn sc coencvakdbosepnesd des 18

United States v. Rylander, 460 U. S. 752, 75 L. Ed. 2d 521,

fF ROB Ce | eer cree oe ee 15

United States v. Salerno, 481 U. S. 739, 95 L. Ed. 2d 697,

gp B® ft, ers ep eo ee eee 29

United States v. Wilson, 7 Pet. 150, 32 U. S. 150,

TE errs array ee eee 4,9

Wainwright v. Sykes, 433 U. S. 72, 53 L. Ed. 2d 594,

pf Be fe yr ey or ree 10

Washington v. Glucksberg, 521 U.S. ___,

65 U.S. L. W. 4669 (June 26, 1997) ..........6005. 20

Western & Southern Life Ins. Co. v. Board of Equalization,

451 U.S. 648, 68 L. Ed. 2d 514,

Se ea a I iin todo cakedadieiny.s 20, 21

— — ———

Western Union Tel. Co. v. Kansas , 216 U. S. 1,

34 L. Ed. 355, 30 S. Ct. 190. (1910) ................ 22

Whitehill v. Elkins, 389 U. S. 54, 19 L. Ed. 2d 228,

ee a ns a ots 5 Sb ie Ad wlks oh 6 od 17

Wieman v. Updegraff, 344 U. S. 183, 97 L. Ed. 216,

Fs ae EE SS Cab e Vode CdReW ch ciweccs 18

Williams v. Florida, 399 U. S. 78, 26 L. Ed. 2d 446,

ee wees 15

Wolff v. McDonnell, 418 U. S. 539, 41 L. Ed. 2d 935,

ee cr ew i ein dic eas eee 7

Woodard v. Ohio Adult Parole Authority,

og we ee re Passim

Wyman v. James, 400 U. S. 309, 27 L. Ed. 2d 408,

Ss ey NE 58s S00 85 N65 SiS Si Os cee 27

Zap v. United States, 328 U. S. 624, 90 L. Ed. 1477,

ee ts MOE sy vedas Wiebe e¥e Rai cce cece. 26

United States Statute

CR ERAS ESE IEA AS SAPO) ae Ce ra 2

United States Constitution

U.S. Const., EIRP CRS Ste ara 12

Treatises

The Federalist No. 74 (C. Rossiter ed. 1961)

i al a eee we wese ee 4

8 J. Wigmore, Evidence §2254

I MEE wes dues vbatpestscsenvese ll

Miscellaneous

Easterbrook, Insider Trading, Secret Agents,

Evidentiary Privileges and the Production of Information,

Oe ee se i casbekese padenn 24

Sullivan, Unconstitutional Conditions,

102 Harv. L. Rev. 1415 (1989) ...............4.: 20, 21

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

OHIO ADULT PAROLE AUTHORITY, et al.,

Petitioners,

vs.

EUGENE WOODARD,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF THE PETITIONERS

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a nonprofit

California corporation organized to participate in litigation

relating to the criminal justice system as it affects the public

interest. CJLF seeks to bring the constitutional protections of the

accused into balance with the rights of victims and of society to

rapid, efficient, and reliable determination of guilt and swift

execution of punishment.

The present case involves the unprecedented intrusion of

judicial review into the clemency process, and expanding the

doctrine of unconstitutional conditions beyond the First Amend-

ment. Both results hamstring important government activities and

are thus contrary to the interests CJLF was formed to protect.

1. Rule 37.6 Statement: This brief was written entirely by counsel for amicus, as

listed on the cover. No outside contributions were made to the preparation or

submission of this brief. Both parties have consented to the filing of this brief.

SUMMARY OF FACTS AND CASE

Respondent Woodard was sentenced to death for killing Mani

Akram during a carjacking in southwestern Cleveland. Woodard

v. Ohio Adult Parole Authority, 107 F. 3d 1178, 1194 (CA6 1997)

(Nelson, J., concurring in part and dissenting in part). While

arguing over the division of spoils, Woodard was overheard saying

“I’m the one with the murder case” and “if the nigger die, it’s me

that shot him, so I should get the most.” Jbid. The Ohio Supreme

Court set an execution date for October 7, 1994, but issued a stay

on August 24, 1994, so that respondent could pursue state post-

conviction relief. /d., at 1181 (majority opinion). Since the

execution was not stayed 45 days in advance, the Ohio Adult

Parole Authority (APA) started the clemency process as required

under Ohio’s Death Penalty Clemency Procedure. On September

6, the APA informed respondent’s counsel that a clemency

hearing would be held on September 16. /bid. Counsel was also

told that if Woodard desired a pre-hearing interview with the

APA, he could have it on September 9. /d., at 1181-1182.

Respondent filed a 42 U. S. C. § 1983 action on September 14,

1994, moving for a temporary restraining order against any

clemency proceedings in his case. /d., at 1182. On September 16,

a consent decree was entered, indefinitely postponing clemency

proceedings. /bid. The District Court rejected respondent’s

procedural due process, substantive due process, and Eighth

Amendment claims. Jbid.

The Sixth Circuit reversed. It held that under Evitts v. Lucey,

469 U. S. 387 (1985) respondent had a protected liberty interest in

clemency proceedings. See 107 F. 3d, at 1186-1188. The lower

court also held that if Ohio fails to give respondent immunity

during the clemency interview, it may create an unconstitutional

condition in violation of respondent’s Fifth Amendment privilege

against self-incrimination and remanded for further determination

of the nature of the APA’s clemency procedures. See id., at 1192-

1193.

SUMMARY OF ARGUMENT

The federal judiciary cannot interfere with the clemency

process. Clemency is an act of grace traditionally left to the

unguided discretion of the executive. It is therefore not a proper

subject for judicial review. Evitts v. Lucey does not extend to

clemency procedures and therefore does not justify the decision

below.

Any attempt to elevate Ohio’s clemency procedures into

constitutionally protected interests improperly discourages

government benevolence. In Sandin v. Conner, this Court

disapproved punishing a state for its good deeds by elevating

prison rules to constitutional rights. The lesson of Conner applies

with equal force to the present case.

A prisoner whose conviction is final has no privilege against

self-incrimination regarding the circumstances of the conviction

or sentence. The decision below, that Ohio threatened respon-

dent’s self-incrimination privilege by refusing to immunize his

testimony during his commutation interview, violates numerous

principles of the Fifth Amendment privilege. This effective right

of immunity contradicts the rule that granting immunity is not a

judicial function.

This ruling also fails to appreciate that the commutation

interview does not threaten respondent with self-incrimination.

Once his conviction became final, respondent’s self-incrimination

privilege expired with regard to his conviction and sentence. The

possibility of collateral attack does not change the calculus, as

habeas is a civil proceeding and the privilege does not exclude

evidence in civil matters.

The commutation interview also lacks the compulsion that

triggers the Fifth Amendment privilege. Respondent does not

have to attend the interview. If he does attend, there is no reason

to believe that he will be further punished if he invokes the

privilege. The fact that invoking the privilege may harm his

chances for commutation does not penalize his silence. The

Constitution does not immunize individuals from having to make

difficult choices.

The doctrine of unconstitutional conditions should not be

expanded beyond the First Amendment. Its modern roots in Perry

v. Sindermann are in the First Amendment, as are its modern

applications.

The original unconstitutional conditions cases do not change

the analysis. Many of these decisions actually involved equal

protection violations, not unconstitutional conditions. The other

cases advanced the now discredited theory of economic due

process.

The doctrine should remain limited to the First Amendment.

Expanding the doctrine beyond the First Amendment will prevent

many useful bargains for government benefits. Limiting the

doctrine to the First Amendment allows it to protect the special

privileges associated with this right, while minimizing the doc-

trine’s cost.

ARGUMENT

I. The federal judiciary cannot interfere with

the clemency process.

The first and clearest error in the opinion below was its

unprecedented interference with a state’s clemency procedure.

Amicus will keep its discussion of this important point brief, as it

expects petitioner to address this point in detail.

Any analysis of the judiciary’s role in regulating clemency

proceedings must begin with the great discretion traditionally

given the executive branch for executing its clemency function.

The exercise of clemency such as “a pardon is an act of grace,

proceeding from the power intrusted with the execution of the

laws, which exempts the individual, on whom it is bestowed, from

the punishment the law inflicts for a crime he has committed.”

United States v. Wilson, 7 Pet. 150, 160 (1833). This act of grace,

“generally depends not simply on objective factfinding, but also

on purely subjective evaluations and on predictions of future

behavior by those entrusted with the decision.” Connecticut

Board of Pardons v. Dumschat, 452 U. S. 458, 464 (1981).

The responsibility for such an important, inevitably subjective

decision is best left to the sole discretion of the chief executive.

See The Federalist No. 74, pp. 447-448 (C. Rossiter ed. 1961) (A.

Hamilton). “Unlike probation, pardon and commutation decisions

have not traditionally been the business of courts; as such, they are

rarely, if ever, appropriate subjects for judicial review.” Dum-

schat, 452 U. S., at 464 (emphasis added; footnote omitted). In

Dumschat, this Court found that the Connecticut Board of Par-

dons’ practice of routinely commuting the sentences of most life

prisoners did not create a protected liberty interest. See id., at

465. This decision was centered on the deference courts accord

these inherently subjective decisions, see id., at 464, and the fact

that the Board of Pardons had “unfettered discretion” to commute

sentences.’ See id., at 466.

Clemency simply is not meant to be reviewed by the courts.

Courts cannot develop standards to review a function that is the

essence of subjectivity. “Individual acts of clemency inherently

call for discriminating choices because no two cases are the

same.” Schick v. Reed, 419 U. S. 256, 268 (1974).

The Dumschat Court left open the possibility that equal

protection could provide a reason to exercise judicial review over

clemency. See 452 U. S., at 464, n. 9. While a court may

entertain a challenge to a clemency procedure that on its face

threatens equal protection rights, such as a rule limiting commuta-

tion to prisoners of a particular race, the present case does not

raise this issue. Capital prisoners are different from the general

prisoner population, and thus may be treated differently, a fact

recognized by the court below. See Woodard vy. Ohio Adult

Parole Authority, 107 F. 3d 1178, 1193 (CA6 1997).

Recognizing the barrier placed around clemency procedures

by Dumschat, the Sixth Circuit sought an alternative to this

decision in Evitts v. Lucey, 469 U. S. 387 (1985). See Woodard,

107 F. 3d, at 1186. Evitts held that the right to appointed counsel

in the first appeal as of right first recognized in Douglas v.

California, 372 U. S. 353, 357-358 (1963), included a right to

effective assistance of counsel. 469 U. S., at 397. The problem

2. This last reason, that taking discretion away from those overseeing prisoners

creates a constitutionally protected liberty interest, was discredited in Sandin v.

Conner, 132 L. Ed. 2d 418, 429, 115 S. Ct. 2293, 2299-2300 (1995). See post,

at 8.

with the Sixth Circuit’s use of Evitts is that this Court has refused

to extend Evitts or Douglas beyond the first appeal as of right.

Ross v. Moffitt, 417 U. 8. 600, 602-603 (1974) involved an

protection rationale. See id., at 611. This Court concluded

pang cnr the tendency of all rights ‘to declare themselves

absolute to their logical extreme,’ ” id., at 611-612 (quoting

Hudson County Water Co. v. McCarter, 209 U.S. 349, 355 (1908)

(Holmes, J.)), Douglas had limits. “The question is not one of

absolutes, but one of degrees.” 417 U. S., at 612. Equal protec-

tion did not extend the right to counsel to discretionary review.

Ibid.

The logic of Ross extends to collateral review. “Postconvic-

tion relief is even further removed from the criminal trial than is

discretionary direct review.” Pennsylvania v. Finley, 481 U. S.

551, 556-557 (1987). Therefore, neither due process nor equal

protection justified extending the right to counsel to collateral

review. See id., at 557. In Murray v. Giarratano, 492 U.S. 1, 12

(1989) a plurality of this Court applied Finley to death row

inmates, and in Coleman v. Thompson, 501 U. S. 722, 756-757

(1991), Evitts was not extended to an appeal from the denial of

state habeas to a capital prisoner. Clemency is even farther

removed from Douglas and Evitts than the limits established in

Ross, Finley, Murray, and Coleman. Upholding the decision

below would explode the boundaries of Douglas and Evitts,

turning their limits into dead letters. Clemency is an executive,

not a judicial function. This Court should reiterate this principle

so mistakes such as the decision below are not repeated.

II. Elevating government benefits into constitutional rights

improperly discourages government benevolence.

The decision below is an unfortunate example of invoking the

Constitution to punish the good deeds of government. The

Constitution does not require the state to have a clemency

mechanism. See Herrera v. Collins, 506 U. S. 390, 414 (1993);

see also Rogers v. Peck, 199 U. S. 425, 436 (1905) (power of

governor to grant pardons neither required nor withheld by the

federal Constitution). As there is no constitutional right to

clemency, Ohio’s decision to allow the commutation of death

sentences and to create a formal process for evaluating such

requests for clemency is therefore voluntary. The Sixth Circuit’s

decision to burden Ohio’s clemency process with the label of

constitutionally protected interest punishes Ohio for its good

intentions. While the Sixth Circuit meant to benefit capital

prisoners, it may do more harm to them in the long run by

discouraging Ohio and other states from regulating capital

clemency. If a state can avoid judicial intrusion by leaving

clemency to the unfettered discretion of the governor, or by

abolishing clemency altogether, it may do so in order to avoid

judicial intrusions similar to the one below.

This problem was a driving force behind this Court’s recent

turnaround in its prisoner rights jurisprudence. Beginning with

Wolff v. McDonnell, 418 U. S. 539 (1974), this Court examined

prison regulations to determine whether the regulations created

constitutionally protected liberty interests. See Sandin v. Conner,

132 L. Ed. 2d 418, 425-428, 115 S. Ct. 2293, 2297-2299 (1995)

(reviewing cases). These cases developed into an examination of

how much discretion state officials had to withdraw state-created

benefits from prisoners: the more discretion, the less likely that

the prisoner had a constitutional interest in the benefit. See id., at

426-427, 115 S. Ct., at 2298. Thus in Greenholtz v. Nebraska

Penal Inmates, 442 U. S. 1, 11-12 (1979), state standards for

granting parole were subjective and vague, calling for a prediction

of future behavior, rather than an examination of the prisoner’s

past. While the Court accepted without explanation “ ‘respon-

dents’ view that the expectancy of release provided in this statute

is entitled to some measure of constitutional protection,” id., at 12,

the procedures used were deemed adequate. /d., at 16.

Conversely, in Connecticut Board of Pardons v. Dumschat,

452 U.S. 458 (1981), the Board had “ ‘unfettered discretion’ ” to

commute sentences, with “no limit on what procedure is to be

followed, what evidence may be considered, or what criteria are

to be applied to the Board.” /d., at 466. Therefore, this entirely

discretionary power created no entitlement to be protected under

due process. See id., at 467.

This Court began to recognize the consequences of such

perverse incentives in Hewitt v. Helms, 459 U.S. 460 (1983). “It

would be ironic to hold that when a State embarks on such

desirable experimentation [with procedural guidelines for

discipline] it thereby opens the door to scrutiny by the federal

courts, while States that choose not to adopt such procedure

provisions entirely avoid the strictures of the Due Process Clause.”

Id., at 471. Yet Hewitt parsed the language of the relevant statute,

and based on the choice of words found “that the State has created

a protected liberty interest.” /d., at 472. After Hewitt, close

examination of prison regulations for the extent of the discretion

given to prison officials became the norm. See Conner, supra,

132 L. Ed. 2d, at 428, 115 S. Ct., at 2299 (discussing Olim v.

Wakinekona, 461 U. S. 238 (1983) and Kentucky Department of

Corrections v. Thompson, 490 U. S. 454 (1989)).

The irrationality of these cases was finally checked in Conner.

“The approach embraced by Hewitt discourages this desirable

development: States may avoid the creation of ‘liberty’ interests

by having scarcely any regulations, or by conferring standardless

discretion on correctional personnel.” Conner, 132 L. Ed. 2d, at

429, 115 S. Ct., at 2299. The perversity of such incentives helped

justify Conner’s decision to abandon the methodology embodied

in Hewitt. See id., at 429, n. 5, 115 S. Ct., at 2300, n. 5.

The Conner Court developed an intimate appreciation of the

costs of Wolff and its successors. In addition to the disincentives

for rulemaking, the old approach created the additional problem

of dramatically increasing judicial interference with prisons.

Thus, “the Hewitt approach has led to the involvement of federal

courts in the day-to-day management of prisons, often squandering

judicial resources with little offsetting benefit to anyone.” /d., at

429, 115 S. Ct., at 2299.

The present case poses similar concerns. Capital punishment

is particularly diminished by delay. See Gomez v. Fiero, 136

L. Ed. 2d 204, 204, and n. 1, 117 S. Ct. 285, 285, and n. 1 (1996)

(Stevens, J., dissenting); Jn re Blodgett, 502 U. S. 236, 239 (1992)

(per curiam). By adding yet another layer of constitutional law to

this field, the decision below threatens to turn clemency into

another source of collateral litigation, inevitably adding yet more

expense and delay. This will undoubtedly deter states from

exposing their commutation and pardon powers to the federal

courts

The fact that clemency is the traditional means for providing

a “fail safe” to protect the factually innocent from capital punish-

ment, see Herrera, 506 U. S., at 415, does not change this

calculus. The Herrera Court understood that states were not

required to provide either clemency or any particular clemency

procedure. See id., at 414. Some states have been unwilling to

vest the clemency power solely in the executive, instead splitting

the power between an advisory board and the governor. See ibid.

Such states often have specific, detailed clemency procedures.

See id., at 416 (discussing Texas’ clemency procedure). Encum-

bering these proceedings with the Due Process Clause will either

deter states from having clemency procedures or rob executive

clesmency of its necessary informality. See id., at 413 (quoting

from United States v. Wilson, 7 Pet. 150, 160-161 (1833) (Mar-

shall, C.J.)).

Rulemaking can be very beneficial. In Conner, this Court

noted that prison rulemaking encourages uniform treatment of

prisoners, limits staffers’ authority over prisoners, and instructs

personnel on how to exercise their discretion. See 132 L. Ed. 2d,

at 428-429, 115 S. Ct., at 2299. Rules may provide a similar

benefit to the clemency process, giving the prisoners some idea of

their rights and responsibilities, and informing, or possibly even

controlling, the executive’s discretion. Yet a delicate balance

must be struck between the rules and necessary discretion.

Interjecting the Due Process Clause into this mix will disrupt the

balance. The states, our national laboratories, see New State Ice

Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J.,

dissenting), should be allowed to experiment with their commuta-

tion and pardon powers. This Court should reiterate the principles

of Conner to deter future disruptions from the federal courts.

10

Ill. A prisoner whose conviction is final has no privilege

against self-incrimination regarding the circumstances of

the conviction or sentence.

The decision below also erred by creating a right to immunity

for capital prisoners seeking commutation. The Sixth Circuit

accepted Woodard’s argument that “the Ohio procedure calls for

death row inmates to make a ‘Hobson’s Choice’ between

asserting the Fifth Amendment right [against self-incrimination]

and participating in the clemency review process.” Woodard v.

Ohio Adult Parole Authority, 107 F. 3d 1178, 1189 (CA6 1997).

While it felt that it lacked the evidence to hold that this was a

violation of defendant’s self-incrimination privilege, the Sixth

Circuit did require Ohio to find a compelling state interest to

justify “requiring” a respondent to waive his self-incrimination

privilege during his clemency interview. See id., at 1189. The

Sixth Circuit hinted that a grant of immunity under the auspices of

the Fifth Amendment would protect respondent’s privilege if Ohio

failed the compelling interest test. See id., at 1193.

This request for immunity contradicts the principle that courts

are not in the business of immunizing witnesses, which is

“peculiarly an executive” task. Pillsbury Co. v. Conboy, 459 U. S.

248, 261 (1983). More importantly, the decision below overlooks

the two conditions necessary for invoking the privilege, self-

incrimination and compulsion. Since the commutation interview

does not conflict with either interest, Woodard’s self-incrimina-

tion privilege is not threatened by the interview.

A. No Self-Incrimination.

When discussing the self-incrimination properties of the

clemency interview, the Sixth Circuit ignores the fact that

respondent has been convicted of the crimes he now seeks

commutation for. The trial on the merits is the “main event” in

criminal procedure. Wainwright v. Sykes, 433 U.S. 72, 90 (1977).

Respondent’s conviction ended his presumption of innocence.

Herrera v. Collins, 506 U.S. 390, 399 (1993). Barring retrial, any

subsequent proceeding concerning respondent’s conviction is truly

collateral and thus cannot incriminate respondent with regard to

his underlying conviction.

——

11

The opinion below states that “a prisoner who still has

ongoing post-conviction proceedings (such as Woodard) obviously

has a measurable interest in avoiding self-incrimination.” See

Woodard, supra, \03 F. 3d, at 1189 (emphasis added). This is far

from obvious. The privilege only protects individuals from

conviction; adverse collateral attacks are irrelevant to the privi-

lege. Habeas corpus is a civil proceeding. Browder v. Director,

Ill. Dept of Corr., 434 U. S. 257, 269 (1978). It has been long

settled that the privilege does not protect the disclosure of facts

adverse to civil liability. See 8 J. Wigmore, Evidence §2254, at

331 (McNaughten rev. 1961). While the privilege may be claimed

in “any proceeding” it simply protects “ ‘any disclosures which

the witness may reasonably could be used in a criminal

prosecution or which could lead to other evidence that might be

so used.” In re Gault, 387 U.S. 1, 47, 48 (1967) (quoting

Murphy v. Waterfront Commission, 378 U. S. 52, 94 (1964)

(White, J., concurring) (emphasis added by the Gault Court)).

Holding an adverse habeas proceeding to be a form of

incrimination runs contrary to the purpose of the privilege. “[T]he

basic purposes that lie behind the privilege against self-incrimina-

tion do not relate to protecting the innocent from conviction, but

rather to preserving the integrity of a judicial system in which

even the guilty are not to be convicted unless the prosecution

‘shoulder the entire load.’ ” Tehan v. Shott, 382 U.S. 406, 415

(1966). In a habeas proceeding, it is the petitioner who has the

burden of proof. See Hawk v. Olson, 326 U. S. 271, 279 (1945).

There is simply no reason to justify the lower court’s expansion of

the privilege. Therefore, “notwithstanding that a defendant is

imprisoned or on probation at the time he makes incriminating

statements, if those statements are compelled, they are inadmissi-

ble in a subsequent trial for a crime other than for which he has

been convicted.” Minnesota v. Murphy, 465 U.S. 420, 426 (1984)

(emphasis added).

Indeed, even threatened deprivation of liberty is not necessar-

ily enough to invoke the privilege. A commitment proceeding that

seeks to treat, as opposed to punish, sexually dangerous persons

by committing them to the appropriate psychiatric institutions is

not “criminal” for the purposes of the Fifth Amendment. See

Allen v. Illinois, 478 U. S. 364, 372-373 (1986). A collateral

12

attack on a presumptively valid conviction cannot be even

remotely criminal under the Fifth Amendment.

The decision below also runs contrary to the tenor of this

Court’s habeas jurisprudence. An important aspect of many recent

habeas decisions is this Court’s much more lenient treatment of

petitioners with strong claims of innocence. See Herrera v.

Collins, 506 U. S. 390, 404 (1993). Invoking the Fifth Amend-

ment to prevent evidence of the correctness of the guilt finding or

the sentence is contrary to the sense of justice found in these

decisions. Once a prisoner’s conviction is final, there is no reason

to hide additional evidence of his guilt from courts conducting

collateral review.

The Sixth Circuit also noted the possibility of respondent

inculpating himself for crimes unrelated to his underlying

conviction during his commutation interview. See Woodard, 107

F, 3d, at 1189. This risk is too remote to warrant a preemptive

grant of immunity. Respondent’s risk of further prosecution is

rendered even more remote by the fact that admitting to uncharged

crimes is unlikely to lead to a commutation. If respondent has a

substantial, previously unknown, criminal history, it further

demonstrates his danger to society, reinforcing the propriety of his

death sentence. Finally, Woodard, like any other party to a civil

proceeding, can invoke his Fifth Amendment privilege and refuse

to answer incriminating questions.

B. No Compulsion.

Even if respondent’s interview subjected him to additional

criminal liability, his Fifth Amendment privilege would not be

violated. An essential component of any claim under the self-

incrimination privilege is compulsion. “No person . . . shall be

compelled in any criminal case to be a witness against himseif

.... U.S. Const., Amdt. 5 (emphasis added). The Sixth

Circuit's failure to appreciate this point is its second fundamental

misinterpretation of the self-incrimination privilege.

The fact that respondent could claim the privilege at any

proceeding where a question may incriminate him, see Lefkowitz

v. Turley, 414 U. S. 70, 77 (1973), does not change the compul-

sion requirement. If respondent voluntarily incriminates himself,

then the privilege does not apply.

SPS Te ee

13

“The [Fifth] Amendment speaks of compulsion. It does

not preclude a witness from testifying voluntarily in matters of

which may incriminate him. If, therefore, he desires the

protection of the privilege, he must claim it or he will not be

considered to have been ‘compelled’ within the meaning of

the Amendment.” United States v. Monia, 317 U. S. 424, 427

ye Corteats omitted); accord, Minnesota v. Murphy, 465

.»., at ‘

Respondent is not compelled to testify at the commutation

interview. He has not been subpoenaed. He was asked if he

wanted an interview. See Woodard, 107 F. 3d, at 1181-1182.

Whether he speaks is a decision left entirely to respondent.

Respondent simply is not subject “to the cruel trilemma of self-

accusation, perjury or contempt ... .” Murphy v. Waterfront

Commission, 378 U. S., at 55.

The fact that respondent seeks to overturn his death sentence

cannot create compulsion where it otherwise does not exist. The

general rule is that a witness must assert the self-incrimination

privilege or lose it; one who voluntarily speaks cannot later

complain that the incriminating testimony was compelled. See

Minnesota v. Murphy, 465 U. S., at 429. While there are a handful

of exceptions to this rule, none of them apply to the present case.

The best known example of a self-executing Fifth Amendment

privilege is the rule of Miranda v. Arizona, 384 U. S. 436 (1966).

See 465 U. S., at 429-430. In Minnesota v. Murphy, Miranda was

distinguished because the coercive circumstances of the station-

house were absent. See id., at 433. The commutation interview

is similarly distinguishable from Miranda. The commutation

interview is voluntary, and meant to determine whether an already

convicted prisoner warrants an act of mercy. This does not

“convey to the suspect a message that he has no choice but to

submit to the officers’ will and to confess.” Jbid. (emphasis

added). The prisoner at a commutation interview will not feel that

he cannot leave until he confesses. Cf. ibid. Miranda, which

deals with a different, potentially more coercive Stage of a

criminal procedure, cannot govern the present case.

The privilege is also self-executing in the “ ‘penalty’ cases”

where “the state not only compelled an individual to appear and

testify, but also sought to induce him to forgo the Fifth Amend-

14

ment privilege by threatening to impose economic or other

sanctions ‘capable of forcing the self-incrimination which the

Fifth Amendment forbids.’ ” Minnesota v. Murphy, 465 U. S., at

434 (quoting Lefkowitz v. Cunningham, 431 U. S. 801, 806

(1977)). In Minnesota v. Murphy, defendant had been a proba-

tioner subject to the condition that he attend a treatment program

for sex offenders, report to his probation officer, and be truthful to

the probation officer “ ‘in all matters.” ” 465 U. S., at 422.

During his treatment, defendant admitted to a counselor that he

committed an earlier rape and murder, and the counselor relayed

the confession to Murphy’s probation officer. /d., at 423. Ata

subsequent meeting with the probation officer about his failure to

continue treatment, Murphy was confronted with his confession,

which he reaffirmed.

The threat of probation revocation for untruthful answers did

not constitute a penalty that made the privilege self-executing.

Had the state forced Murphy to make these incriminating state-

ments or lose his probationary status, then his privilege would

have been executed. See id., at 435. As the probation condition

only penalized false statements, this Court concluded that

Minnesota would not punish a probationer who invoked his Fifth

Amendment privilege. See id., at 437-438. Any belief that

Minnesota would attempt to do so was unreasonable. /d., at 438.

The argument against compulsion is even stronger in the

present case. Unlike Murphy, respondent is not free. See

Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 464-

465 (1981) (no constitutionally protected liberty interest in

commutation). Clemency is an essentially unreviewable act of

grace. See ante, at 4-5. If Ohio wishes to take into account

respondent’s failure to admit to his current or other crimes, it

should be free to do so. So long as respondent receives no added

punishment for invoking his privilege, such as through a contempt

finding, Ohio does not violate his Fifth Amendment rights. As in

Minnesota v. Murphy, it is unreasonable to believe Ohio will act

this way. If respondent wishes to avoid incriminating himself, he

15

must invoke his privilege at his commutation hearing. The Fifth

Amendment affords no more protection.’

The Sixth Circuit’s invocation of the Fifth Amendment

privilege seeks to free death row inmates from a potentially

unpleasant choice. See Woodard v. Ohio Adult Parole Authority,

107 F. 3d 1178, 1189 (CA6 1987). It is a constitutional fact of life

that the government may confront its citizens with unpleasant

choices concerning their constitutional rights. “Our authorities do

not impose a categorical ban on every governmental action

affecting the strategic decisions of an accused, including decisions

whether or not to exercise constitutional rights.” United States v.

Dunnigan, 507 U. S. 87, 96 (1993). This applies with particular

force to the self-incrimination privilege. “ ‘That the defendant

faces such a dilemma demanding a choice between complete

silence and presenting a defense has never been thought an

invasion of the privilege against compelled self-incrimination.’ ”

United States v. Rylander, 460 U. S. 752, 759 (1983) (quoting

Williams v. Florida, 399 U. S. 78, 83-84 (1970) (emphasis added

by the Rylander Court)).

Respondent does not deserve a free ride; Ohio can require him to

make a choice.

Nor should the Eighth Amendment step in where the Fifth

does not tread. The Eighth Amendment has been construed to

regulate capital punishment at trial; once the trial is over, a capital

defendant deserves no extra privileges. See Murray v. Giarrata-

no, 492 U.S. 1, 9 (1989) (plurality). If the right to counsel is not

extended to collateral review in a capital case, see Coleman v.

Thompson, 501 U. S. 722, 752 (1991), there is even less reason to

invoke the Eighth Amendment to extend the Fifth Amendment

privilege where it otherwise would not reach.

3. The last instance of self-executing privilege that occurs “in the context of the

federal occupational and excise taxes on gamblers,” Minnesota v. Murphy, 465

U. S., at 439, does not apply to present case. The gambling exception exists

because “claiming the privilege in lieu of filing a tax return would tend to

incriminate ....” /bid. Woodard does not run this risk, as he may refuse to

answer any incriminating question without risking further incrimination. See

ante, at 12.

16

IV. The doctrine of unconstitutional conditions should be

limited to the First Amendment.

The decision below extends the doctrine of unconstitutional

conditions into previously unchart€d territory. Its holding that the

doctrine of unconstitutional conditions bars placing burdens on the

self-incrimination privilege in exchange for government benefits,

see Woodard v. Ohio Adult Parole Authority, 107 F. 3d 1178,

1189 (CA6 1997), cannot be allowed to stand. Unconstitutional

conditions is a difficult, potentially dangerous doctrine that should

be confined to the First Amendment.

A. First Amendment Roots.

In Perry v. Sindermann, 408 U. S. 593 (1972), this Court

formulated a dictum that should not be allowed to govern the

present case. The Perry Court was confronted with a claim by a

nontenured junior college teacher that his contract was not

renewed because he publicly criticized his superiors. This failure

to renew was claimed to violate his First Amendment rights. /d.,

at 595.

In holding that Sindermann’s lack of tenure did not bar his

First Amendment claim, the Perry Court made the following

pronouncement:

“For at least a quarter-century, this Court has made clear that

even though a person has no ‘right’ to a valuable governmen-

tal benefit and even though the government may deny him the

benefit for any number of reasons, there are some reasons

upon which the government may not rely. It may not deny a

benefit to a person on a basis that infringes his constitutionally

protected interests—especially, his interest in freedom of

speech.” /d., at 597.

To the extent that it goes beyond the First Amendment, this

statement is dictum. Perry was a First Amendment case. Whether

the unconstitutional conditions benefits doctrine applied beyond

the First Amendment was not an issue. As the present case does

not involve an attempt by the government to purchase an individ-

ual’s First Amendment rights, Perry and its ilk do not apply.

Any indication from Perry that the government may not

condition the receipt of a government benefit upon the waiver of

17

any government right is contrary to this Court’s precedents. This

Court has often upheld the waiver of a constitutional right in

exchange for some government benefit. See part IV B, post.

Neither Perry nor any other of this Court’s decisions have

invalidated such consents under the Perry dictum. Therefore,

there is some limit to the Perry dictum. “It is to the holdings of

our cases, rather than their dicta, that we must attend... .”

Kokkonen v. Guardian Life Ins. Co., 511 U. S. 375, 379 (1994).

The limit of this dictum is seen in Perry itself. Perry was a

First Amendment case dealing with an alleged denial of employ-

ment because of the employee’s exercise of his free speech rights.

As the Perry Court recognized, the First Amendment was at the

heart of the denial of government benefits doctrine. Thus, the

Perry doctrine was “especially” concerned with protecting the

aaa “interest in freedom of speech.” Perry, 408 U. S., at

The First Amendment limits of Perry are further reinforced by

the authorities it cites. It noted that denying benefits because of

the exercise of First Amendment rights “would allow the govern-

ment to ‘produce a result which [it] could not command di-

rectly.” ” Jbid. (citing Speiser v. Randall, 357 U. S. 513, 526

(1958)). The Perry Court then noted that “[w]e have applied this

general principle” to the denial of various monetary benefits,

citing numerous cases. See 408 U. S., at 597.

None of the authorities cited by Perry involved denying a

government benefit for the exercise of a right outside the First

Amendment. Several cases cited by Perry did not involve

conditioning benefits on giving up some other right, but instead

involved denials of benefits that were directly challenged as

unconstitutional. See Shapiro v. Thompson, 394 U. S. 618, 627

(1969) (one-year residence requirement for welfare payments

violates equal protection); Graham v. Richardson, 403 U. S. 365,

376 (1971) (denial of welfare to aliens violates equal protection);

Cafeteria Workers v. McElroy, 367 U. S. 886, 894 (1961) (denial

of cook’s access to military installation did not violate due

process). Other cases cited by Perry involved loyalty oaths.

Some invoked the First Amendment and others the due process

“vagueness” doctrine, but all involved a severe impact on speech

or association. See Whitehill v. Elkins, 389 U. S. 54, 59-62

18

(1967); Baggett v. Bullitt, 377 U. S. 360, 372 (1964); Cramp v.

Board of Public Instruction, 368 U. S. 278, 287-288 (1961);

Speiser, supra, 357 U. S., at 529; Wieman v. Updegraff, 344 U. S.

183, 185-186, 191-192 (1952). The other cases involved a variety

of First Amendment issues. See Pickering v. Board of Education,

391 U. S. 563, 574-575 (1968) (speech); United States v. Robel,

389 U. S. 258, 266-268 (1967) (association); Keyishian v. Board

of Regents, 385 U. S. 589, 608-609 (1967) (association); Elfbrandt

v. Russell, 384 U. S. 11, 16 (1966) (association); Sherbert v.

Verner, 374 U. S. 398, 405-406 (1963) (free exercise of religion);

Torcaso v. Watkins, 367 U. S. 488, 494-496 (1961) (establishment

of religion); Shelton v. Tucker, 364 U. S. 479, 490 (1960) (associ-

ation); United Public Workers v. Mitchell, 330 U. S. 75, 100

(1947) (partisan speech and association). See Perry, supra, 408

U. S., at 597. Perry had no support to extend its reach beyond the

First Amendment.

Other decisions reinforce the First Amendment limits on

Perry. Although this Court made a similarly expansive statement

in Regan v. Taxation With Representation of Wash., 461 U.S. 540

(1983),‘ the only authority it cites to support this claim is Perry,

a First Amendment case. See id., at 545. Furthermore, Taxation

With Representation is itself a First Amendment case, where this

Court held that there was no First Amendment right to require

Congress to give tax-exempt status to nonprofit organizations that

engaged in lobbying. See ibid. Any implication that Perry

extends beyond the First Amendment is dictum.

Other decisions demonstrate the First Amendment limits of

Perry more directly. In Connick v. Myers, 461 U. S. 138 (1983),

this Court traced the development of the rights of public employ-

ees. It noted that initially, “the unchallenged dogma was that a

public employee had no right to object to conditions placed upon

the terms of employment— including those which restricted the

exercise of constitutional rights.” /d., at 143. The Connick Court

then traced the history of the public employee rights cases, see id.,

at 144, and came to the following conclusion. “In all of these

cases, the precedents in which Pickering [v. Board of Education,

4 “The government may not deny a benefit to a person because he exercises a

constitutional right.” 461 U. S., at 545.

19

391 U. S. 563 (1968)] is rooted, the invalidated statutes and

actions sought to suppress the rights of public employees fo

participate in public affairs.” 461 U. S., at 144-145 (emphasis

added). Perry, one of Pickering’s “progeny,” id., at 143, stands

for the principle that “a State cannot condition public employment

on a basis that infringes the employee’s constitutionally protected

interest in freedom of expression.” /Jd., at 142. This is the proper

limit of Perry.

The limits on Perry were in place even before that decision

was written. An integral part of Perry was the rule that whether

a benefit was a right or privilege was irrelevant to what conditions

the government could place on the exercise of the benefit. As

Perry noted, “respondent’s lack of a contractual or tenure ‘right’

to re-employment . . . is immaterial to his free speech claim.” 408

U. S., at 597-598. The precedent that discredited the right-

privilege distinction was grounded in the First Amendment.

“Nor may the South Carolina court’s construction of the

statute be saved from constitutional infirmity on the ground

that unemployment compensation benefits are not appellant’s

‘right’ but merely a ‘privilege.’ It is too late in the day to

doubt that the liberties of religion and expression may be

infringed by the denial of or placing conditions upon a benefit

or privilege.” Sherbert v. Verner, 374 U.S. 398, 404 (1963)

(emphasis added).

B. The Property Cases.

In a dim, discredited part of this Court’s past, some decisions

applied the unconstitutional conditions doctrine outside the First

Amendment. These cases reached their apex in United States v.

Chicago, M. St. P. & P. R. Co., 282 U.S. 311 (1931), in which an

order of the Interstate Commerce Commission conditioning its

approval of the bankrupt railroad’s reorganization plan on the

creation of an impound fund to be dispersed at the discretion of

the bankruptcy court or the commission, see id., at 319-322, was

declared unconstitutional. See id., at 327-328. In reaching this

conclusion this Court stated, “the right to continue the exercise of

a privilege granted by the state cannot be made to depend upon the

grantee’s submission to a condition prescribed by the state which

is hostile to the provisions of the federal Constitution.” /d., at

328-329. This rule was fashioned to protect the substantive due

process doctrine typified by the discredited Lochner v. New York,

198 U. S. 45 (1905). See Sullivan, Unconstitutional Conditions,

102 Harv. L. Rev. 1415, 1416 (1989). It “was invented by a

laissez-faire Court bent on dismantling progressive legislation that

reduced the liberty of corporations ....” /d., at 1505.

The Lochner-type cases have, of course, long since been

repudiated. See Washington v. Glucksberg, 521 U.S. __, 65

U.S. L. W. 4669, 4684-4686 (June 26, 1997) (Souter, J., concur-

ring in the judgment) (tracing history). Chicago, M. St. P. & P. R.

Co. and its antecedents “produced a series of consequences for the

exercise of national power over industry conducted on a national

scale which the evolving nature of our industrialism foredoomed

to reversal.” Mandeville Island Farms, Inc. v. American Crystal

Sugar Co., 334 U. S. 219, 230 (1948) (emphasis added). Man-

deville Island Farms notes Chicago, M. St. P. & P. R. Co. and

implies it was contradicted by United States v. Lowden, 308 U. S.

225, 240 (1939). 334 U. S., at 230, n. 9. The rights these

decisions sought to protect are no longer the law, and their legal

philosophy has been thoroughly discredited by this Court. See

Ferguson v. Skrupa, 372 U. S. 726, 731-732 (1963). They are no

longer valid, and cannot be applied to the present case.

Many of these decisions grew from a response to an aberrant,

discredited decision. In Paul v. Virginia, 8 Wall. 168, 181 (1869),

this Court viewed corporations as the recipients of “special

privileges” granted by the state. Since “it might be of the highest

public interest that the number of corporations in the State should

be limited,” id., at 182, this Court determined that a state’s

consent to the formation of a domestic corporation, or entry of a

foreign corporation “may be granted upon such terms and

conditions as those States may think proper to impose.” /d., at

181. This doctrine spawned a series of decisions upholding

discriminatory conditions, usually in the form of taxes, on the

entry of foreign corporations into a state. See Western & Southern

Life Ins. Co. v. Board of Equalization, 451 U. S. 648, 660-662

(1981). The cases that turned back these decisions invoked a mix

of the unconstitutional conditions doctrine and equal protection.

See id., at 662-666.

21

Before the first unconstitutional conditions cases were

decided, the legal underpinnings of Paul had eroded. First, in the

late 19th century, laws of general incorporation spread through the

country, taking away the corporation’s status as a special privi-

lege. Id., at 659. Second, the Fourteenth Amendment, ratified in

1868, prevented “the States from acting arbitrarily or treating

similarly situated persons differently, even with respect to

privileges formerly dispensed at the State's discretion.” Id., at

660 (emphasis in original). This Court was slow to recognize

these developments, see ibid., thus the doctrine of unconstitutional

conditions developed. See id., at 661-662. The most important of

these cases, Southern R. Co. v. Greene, 216 U. S. 400 (1910), see

451 U. S., at 662, rejected a state condition on equal protection

grounds. See 216 U. S., at 417-418; see 451 U. S., at 663. Equal

protection has thus become and remained the norm for analyzing

state conditions on entry of foreign corporations. See 451 U. S.,

at 664-668. Because the conditions are themselves equal protec-

tion violations, and because incorporation is no longer a privilege,

these cases are not truly part of the unconstitutional conditions

doctrine

Nor does Nollan v. California Coastal Comm'n, 483 U.S. 825

(1987) extend the government benefits doctrine beyond the First

Amendment, despite the assertions of some. Cf. Sullivan, supra,

102 Harv. L. Rev., at 1463. In Nollan, the California Coastal

Commission conditioned its permission to allow Nollan to build

on his property on his granting a public easement through his

property. 483 U. S., at 828. The Court found that this was a

taking. /d., at 837. It also found that this was not a government

benefits decision, holding that “the right to build on one’s own

property—even though its exercise can be subjected to legitimate

permitting requirements—-cannot remotely be described as a

‘government benefit.’ ” /d., at 833-834, n. 2.

This severs Nollan from the conditions cases. In Perry and its

successors, the government conditioned some financial benefit,

such as government employment, on, the recipient agreeing to

waive a First Amendment right. See, ¢.g., Perry, supra, 408 U. S.,

at 594-595 (state junior college teaclher allegedly discharged for

public criticism of Board of Regents); Board of County Commis-

sioners v. Umbehr, 135 L. Ed. 2d 843, 849, 116 S. Ct. 2342, 2345

(1996) (trash hauling contract with county terminated in retalia-

tion for contractor’s public criticism of County Board).

In Nollan, the “bargain,” the requested building permit, and

the condition, the easement, were both government restrictions on

the Nollans’ use of their property. See 483 U. S., at 831 (ease-

ment); id., at 834 (regulations). Since both types of restriction

could effect an unconstitutional taking, see ibid., each had to pass

constitutional muster. The regulatory scheme that forced the

Nollans to get a building permit before they could build on their

lot was presumed to advance a sufficiently important state interest

to pass constitutional muster. See id., at 835. If the easement

could be justified by the same interest, then there would be a

constitutionally acceptable nexus between the easement condition

and the building permit. See id., at 836-837.

The Nollan Court justified its nexus rationale by the logic that

if a more restrictive regulation is permissible, then a less restric-

tive regulation in the form of a government condition must also be

constitutional. As this Court concluded when analyzing a

hypothetical condition involving a condition even more invasive

than the easement in Nollan:

“Although such a requirement, constituting a permanent grant

of continuous access to the property, would have to be

considered a taking if it were not attached to a development

permit, the Commission’s assumed power to forbid construc-

tion of the house in order to protect the public’s view of the

beach must surely include the power to condition construction

upon some concession by the owner, even a concession of

property rights, that serves the same end. If a prohibition

designed to accomplish that purpose would be a legitimate

exercise of the police power rather than a taking, it would be

strange to conclude that providing the owner an alternative to

that prohibition which accomplishes the same purpose is not.”

Ibid.

This is the same logic as found in the most cogent criticism of

the unconstitutional conditions doctrine. “Even in the law the

whole generally includes its parts. If the State may prohibit, it

may prohibit with the privilege of avoiding the prohibition in a

certain way.” Western Union Tel. Co. v. Kansas, 216 U.S. |, 53

(1910) (Holmes, J., dissenting). While they may have surface

similarities, Nollan and Perry are two different species of

ern

Dolan v. City of Tigard, 512 U. S. 374 (1994) does not change

the relationship between the Takings Clause and the unconstitu-

tional conditions doctrine. In one passage, the Dolan Court

includes the Takings Clause with the rights protected under

unconstitutional conditions. See id., at 385. Dolan followed

Nollan and applied its nexus standard. See id., at 386. The Dolan

Court simply found that while there was a nexus between a

legitimate state interest and the permit conditions, see id., at 387,

there was not a reasonable relationship between the two. See id.,

at 394-395. Since there was no change from the Nollan analysis,

the unconstitutional conditions in dictum in Dolan should not be

allowed to govern the present case.

More recent pronouncements from this Court recognized that

the unconstitutional conditions doctrine is an aspect of the First

Amendment. “{O]ur modern ‘unconstitutional conditions’

doctrine holds that the government ‘may not deny a benefit to a

person on a basis that infringes on his constitutionally protected

... freedom of speech.’ ” Umbehr, supra, 135 L. Ed. 2d, at 851,

116 S. Ct., at 2347 (quoting Perry v. Sindermann, 408 U. S. 593,

597 (1972)). There are good reasons for these limits. As the next

section will demonstrate, many constitutional rights outside the

First Amendment have been waived in exchange for government

benefits. It thus would be impractical and dangerous to now

endanger these agreements.

C. The Benefit of the Bargain.

Although it is often good practice to avoid “the tyranny of

labels” when deciding cases, see Snyder v. Massachusetts, 29|

U. S. 97, 114 (1934), it is necessary to pay attention to the labels

in the present case. The court below understood that the unconsti-

tutional conditions doctrine had been largely confined to First

Amendment cases. See Woodard v. Ohio Adult Parole Authority,

107 F. 3d 1178, 1190 (CA6 1997). It invoked Nollan and Dolan

to justify extending this doctrine to the Fifth Amendment’s

24

privilege against self-incrimination. See ibid.’ Unless carefully

limited, the label “unconstitutional conditions” is likely to seep

out of its First Amendment basis.

This doctrine should not go beyond its natural boundary found

in the First Amendment. As Justice Holmes noted in his Western

Union dissent, the doctrine has logical difficulties; if the govern-

ment is not constitutionally compelled to provide a benefit, it

should be able to add conditions to the benefit. See ante, at 22.

So long as the decision to accept the benefit is voluntary, then an

individual should be able to consent to foregoing a constitutional

right in exchange for some government benefit.

A voluntary bargain is presumed to benefit both sides; if one

side would be disadvantaged, then that side would not enter into

the bargain. Therefore, the unconstitutional conditions doctrine

threatens to harm those it seeks to protect by depriving them of the

benefit of their bargains; if the government is not allowed to

condition a benefit on some constitutional waiver it may withdraw

or modify the benefit to the detriment of both the government and

the beneficiary.

“If people can obtain benefits from selling their rights,

why should they be prevented from doing so? One aspect of

the value of a right—whether a constitutional right or title to

land—is that it can be sold and both parties to the bargain

made better off. A right that cannot be sold is worth less than

an otherwise-identical right that may be sold. Those who

believe in the value of constitutional rights should endorse

their exercise by sale as well as their exercise by other action.”

Easterbrook, Insider Trading, Secret Agents, Evidentiary

Privileges and the Production of Information, 1981 S. Ct. Rev.

309, 347 (footnotes omitted).

This Court also appreciates the axiom that if something cannot

be sold, that is, surrendered in exchange for something of value,

it becomes less valuable. See Andrus v. Allard, 444 U. S. 51, 66

5. The Court of Appeal also cited Shapiro v. Thompson, supra, to justify

extending the conditions doctrine beyond the First Amendment. See ibid.

Shapiro, however, is distinguishable as involving an unconditional action that

was itself unconstitutional. See ante, at 17.

25

(1979) (regulations preventing the sale of certain Indian artifacts

reduces their value, but is not a taking). Overextending the

unconstitutional conditions doctrine will “imprison a man in his

privileges and call it the Constitution.” See Adams v. United

States ex rel. McCann, 317 U. S. 269, 280 (1942).

This helps explain why this Court has upheld constitutional

bargaining when First Amendment rights are not involved.

The plea bargain, when defendant exchanges a plea of guilty

for a reduced charge, is “an essential component of the criminal

process which [p]roperly administered, . . . is to be encouraged.”

Santobello vy. New York, 404 U. 8. 257, 260 (1971). It involves a

particularly important set of interests: the criminal defendant’s

trial rights and the prosecution’s essential function of charging

crimes. The importance of these interests initially raised grave

concerns with the courts over their voluntariness. Cf. Machibroda

v. United States, 368 U. S. 487, 493 (1962) (“A guilty plea, if

induced by promises or threats which deprive it of the character of

a voluntary act, is void”).

Over time, this Court came to recognize that even agreements

of this gravity were voluntary. Since both the prosecution and

defense have something to gain from the plea bargain, “[i]t is this

mutuality of advantage” that explains the prevalence and accept-

ability of these agreements to waive rights. See Brady v. United

States, 397 U. S. 742, 752 (1970) (emphasis added). This mutual

advar.tage meant that a plea motivated by a risk of a higher

sentence if the case went to trial was still voluntary. /d., at 751.

Mutually beneficial consents are found elsewhere in this

Court’s constitutional precedents. In Ruckelshaus v. Monsanto

Co., 467 U. S. 986 (1984), federal law required pesticide develop-

ers to include trade secrets among the data they submitted to the

Environmental Protection Agency (EPA) to allow the agency to

determine whether the pesticide was safe enough to market. /d.,

at 995-996. This information could be used by the EPA to

evaluate other companies’ pesticides. /d., at 1006. Consent made

certain that prospective application of this scheme did not

constitute a taking under the Fifth Amendment.

“Thus, as long as Monsanto is aware of the conditions under

See

26

related to a legitimate Government interest, a voluntary

submission of data by an applicant in exchange for the

economic advantages of a registration can hardly be called a

taking.” Id., at 1007 (emphasis added).°

In Zap v. United States, 328 U. S. 624 (1946), vacated on

other grounds, 330 U. S. 800 (1947),’ contractual consent to

government searches was recognized as a valid waiver of Fourth

Amendment rights. Petitioner Zap, who contracted with the Navy

to do experimental work on airplane wings, was convicted of

filing a false claim with the government. /d., at 625-626. A key

piece of evidence against Petitioner was a check made out to a test

pilot that Zap used to defraud expense money from the govern-

ment. See id., at 628.

Zap’s contract with the Navy contained the following consent:

“ *The accounts and records of the contractor shall be open at all

times to the Government and its representatives, and such

statements and returns relative to costs shall be made as may be

directed by the Government.’ ” /d., at 627. Invoking this

condition, the government sent two Federal Bureau of Investiga-

tion agents to Zap’s business posing as Navy auditors. During the

audit, the agents discovered the incriminating check. Jbid.

The Zap Court upheld the search because of the contractual

consent. “{Wy]hen petitioner, in order to obtain the Government's

business, specifically agreed to permit inspection of his accounts

and records, he voluntarily waived such claim to privacy which he

otherwise might have had as respects business documents related

to those contracts.” /d., at 628 (emphasis added). This contrac-

tual consent governed the legality of the search. Since the contract

allowed inspection by any authorized government agents, the fact

that the inspectors worked for the F.B.1. instead of the Navy

6. When the pesticide developers had reason to believe that the trade secrets they

submitted would be kept secret, use of this information to benefit others would

constitute a taking. See id., at 1011.

7. The order vacating Zap cited Ballard v. United States, 329 U. S. 187 (1946).

Zap, supra, 330 U. §., at 801. Ballard held that women could not be systemati-

cally excluded from federal grand and petit juries. 329 U. S., at 195.

27

Department did not detract from the legality of the search. /d., at

628-629. The consent agreement made the search reasonable.

Although Zap was not mentioned, this Court applied closely

analogous reasoning in Wyman v. James, 400 U. S. 309 (1971).

Wyman dealt with a New York regulation conditioning receipt of

Aid to Families with Dependent Children (AFDC) grants on the

recipient’s consent to home visits by social workers. See id., at

310. The Wyman Court upheld this regulation against Fourth

Amendment attack, holding that there was no “search . . . in the

Fourth Amendment meaning of that term.” Jd., at 317. Consent

helped take the visit out of the Fourth Amendment.

“We note, too, that the visitation in itself is not forced or

compelled, and that the beneficiary’s denial of permission is

not a criminal act. Jf consent to the visitation is withheld, no

visitation takes place. The aid then never begins or merely

ceases, as the case may be. There is no entry of the home and

there is no search.” /d., at 317-318 (emphasis added).

There is no meaningful difference between Wyman and Zap.*

In both cases, the government conditioned an important fiscal

reward on the recipient’s consent to government intrusion.

Whether labeled a consent search or no search at all, in both cases

consent obtained in exchange for government consideration made

the intrusion legal.

This Court has upheld the idea that the consent necessary for

a bargain can be obtained in the face of substantial state power.

Every day in this country defendants enter guilty pleas because of

the dire possibilities if they go to trial. In Bordenkircher v. Hayes,

434 U. S. 357 (1978), the prosecution threatened to charge

defendant as an habitual criminal carrying a life sentence if he did

not “ ‘save the court the inconvenience and necessity of a trial’ ”

and plead guilty to a crime carrying a sentence of 2 to 10 years.

Id., at 358. When defendant refused to accept the bargain, the

prosecutor carried out his threat, and defendant was convicted and

8. Wyman also promulgated an alternative holding that even if the consent were

not voluntary, the search would still be reasonable. /d., at 318. This does not

supplant the consent holding, but is instead based on a hypothetical assumption

that the consent was invalid. See ibid.

28

received a life sentence. /d., at 359. This Court upheld the

sentence, allowing prosecutors to present defendants with such

“unpleasant alternatives ....” Jd., at 365.

Ohio does not have to give respondent the opportunity to

speak at his clemency hearing. It should be allowed to hold

respondent responsible for what he says at the hearing. Any

contrition, for instance, would be much less sincere if made under

a grant of immunity. If Ohio and other states are not allowed to

structure their commutation and other criminal procedures to get

the benefit of the bargain, they may withdraw such benefits

entirely, impoverishing all concerned. See Part Il, ante.

D. Preserving the Doctrine.

Although the unconstitutional conditions doctrine can be

costly and unwieldly, it does not have to be abandoned. There are

good reasons for this Court’s decision to limit this doctrine to the

First Amendment. The First Amendment protects a particularly

important and fragile set of rights. In the public employment

cases,

“(t]he issue was whether government employees could be

prevented or ‘chilled’ by the fear of discharge from joining

political parties and other associations that certain public

officials might find ‘subversive.’ The explanation for the

Constitution’s special concern with threats to the right of

citizens to participate in political affairs is no mystery. The

First Amendment ‘was fashioned to assure unfettered inter-

change of ideas for the bringing about of political and social

changes desired by the people.’ Roth v. United States, 354

U. S. 476, 484 (1957); New York Times Co. v. Sullivan, 376

U. S. 254, 269 (1964). ‘[S]peech concerning public affairs is

more than self-expression; it is the essence of self-govern-

ment.’ Garrison v. Louisiana, 379 U. S. 64, 74-75 (1964).

Accordingly, the Court has frequently reaffirmed that speech

on public issues occupies the * “highest rung of the hierarchy

of First Amendment values,” ’ and is entitled to special

protection. NAACP v. Claiborne Hardware Co., 458 U. S.

886, 913 (1982); Carey v. Brown, 447 U. S. 455, 467 (1980).”

Connick v. Myers, 461 U.S. 138, 145 (1983).

The special needs of the First Amendment are found in other

doctrines as well. The doctrine of overbreadth, for example, gives

claimants who are not engaged in constitutionally protected

conduct the extraordinary standing to attack a statute on the

ground that it may violate the First Amendment rights of others

not before the Court. See Forsythe Co. v. Nationalist Movement,

505 U. S. 123, 129 (1992). This doctrine, which is limited to the

First Amendment, see United States v. Salerno, 481 U.S. 739, 745

(1987), contrasts with the general rule of standing in constitutional

cases that “one to whom application of a statute is constitutional

will not be heard to attack the statute on the ground that impliedly

it might also be taken as applying to other persons or other

situations in which its application might be unconstitutional.”

United States v. Raines, 362 U.S. 17, 21 (1960).

; Another example of the special needs of the First Amendment

is found in the rule that the government may only regulate the

content of protected speech if it uses “the least restrictive means”

of advancing a compelling interest. See, e.g., Sable Communica-

tions of California, Inc. v. FCC, 492 U.S. 115, 126 (1989); see

also Reno v. ACLU, 521 U.S. __, 65 U. S. L. W. 4715, 4723

(June 26, 1997). This is inapplicable to the Fifth Amendment

privilege, which looks to official misconduct and voluntariness.

See Colorado v. Connelly, 479 U. S. 157, 170 (1986).

: The unconstitutional conditions doctrine should be similarly

limited to the First Amendment. This would confine the doctrine

to an essential but limited concern—the ability of the government

to use its resources to “buy” the suppression of unwanted speech,

beliefs, or associations. This focus is most vividly demonstrated

in the area of subsidies. In Regan v. Taxation With Representa-

tion of Wash., 461 U. S. 540 (1983), this Court upheld tax

regulations denying tax exemptions to organizations that engaged

in lobbying. The basis of the decision was that government was

free to give and withdraw subsidies so long as the action is “not

* “aimed at the suppression of dangerous ideas” ’ . . . .” Id., at 550

(quoting Cammarano v. United States, 358 U.S. 498, 513 (1959)).

Outside of the suppression of ideas, the government’s “ ‘power to

actions deemed to be in the public interest is necessar-

ily far broader.’” 461 U. S., at 550 (quoting Maher v. Roe, 432

U. S. 464, 476 (1977)).

30

Similar considerations motivate the Perry line. Not all First

Amendment activity is beyond the power of the government’s

purse. The primary purpose of the government employee cases

was the protection of a core First Amendment right, “speech on

matters of public concern.” Connick, supra, 461 U. S., at 145.

The limits of Perry are not beyond, but are instead within, the

First Amendment. So long as it does not suppress ideas, the

government may place conditions on “benefits.”

“Pickering, its antecedents, and its progeny lead us to con-

clude that if Myers’ questionnaire cannot be fairly character-

ized as constituting speech on a matter of public concern, it is

unnecessary for us to scrutinize the reasons for her discharge.

When employee expression cannot be fairly considered as

relating to any matter of political, social, or other concern to

the community, government officials should enjoy wide

latitude in managing their offices, without intrusive oversight

by the judiciary in the name of the First Amendment.” /d., at

146 (emphasis added, footnote omitted).

The Self-Incrimination Clause does not deal with the suppres-

sion of ideas and therefore should not be subject to the Perry

dictum. Whatever may be the actual scope of Perry, “its anteced-

ents, and its progeny,” the doctrine of these decisions does not

apply to the present case.

CONCLUSION

The decision of the Sixth Circuit Court of Appeals should be

reversed.

August, 1997

Respectfully submitted,

CHARLES L. HOBSON

Attorney for Amicus Curiae

Criminal Justice Legal Foundation