Opposition Brief — McKune v. Lile

7 en ge .

g arf 2 a a re > be

ew % ». os emt nr :

1 ee rete ore

> _

: . ea

Sa? Regt: Se AM cy oi oF

fee: See 2

QUESTION PRESENTED

Whether, upon an inmate’s invocation of his Fifth

Amendment rights, a decision to transfer that inmate to

maximum security and impose corresponding sanctions

constitutes compulsion under the Fifth Amendment?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED. ....cccccccccscccsessveces i

TABLE OF AULITROORITERS «cc ccscccccccsccesccesses iii

STATEMENT OF THE CASE............ssseeccoees 1

REASONS WHY THE PETITION SHOULD BE

BET oc cccccdccccccscccéusesesseneueeeaennee 4

A. The Tenth Circuit followed this Court’s prece-

dent in determining that the SATP compels Mr.

Lile to incriminate himself...................5. 5

_ The Tenth Circuit’s decision does not conflict

with other courts’ decisions to the extent that this

Caust chawhd savieee © coccccccucceseusseseeu 7

C. The Turner “reasonableness” standard of review

applies in the prison context; that the Tenth Cir- .

cuit employed the four-factor test in determinin

whether Petitioners met that standard is not suf-

Gelent tm sneell GSUROUR. ..ooccccvevseesenduaunent g

D. Although sex offender treatment is important,

the framework suggested by the lower courts

permits Petitioners to meet all of its stated goals

S00 GARE . cc cccccsenscecsevesesetecuevnennnneen 11

ase 6*§ Ph 12

iii

TABLE OF AUTHORITIES

Page

Cases

Bankes v. Simmons, 265 Kan. 341, 963 P.2d 412

heheh ees pceeigeneesedeebesscceess 8, 9

Baxter v. Palmigiano, 425 U.S. 308 (1975)............ 6, 7

Chambers v. Bachicha, 39 F.3d 1191, 1994 WL 596702

i i MD csccccvcesccccecescceeses 8, 9

Gardner v. Broderick, 392 U.S. 273 (1968).............. 6

Garrity v. New Jersey, 385 U.S. 493 (1967)............. 5

Greenholtz v. Inmates of the Nebraska Penal and Cor-

rectional Complex, 442 U.S. 1 (1979)................. 8

Guilkey v. Holden, 865 F.2d 258, 1988 WL 134526

(6th Cir. Dec. 16, 1988)..... I, ee ee ee 7, 8

Lefkowitz v. Cunningham, 431 U.S. 801 (1977).......... 5

Lefkowitz v. Turley, 414 U.S. 70 (1973).............045. 5

Minnesota v. Murphy, 465 U.S. 420 (1984)............. 7

O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987)...... 10

Ohio Adult Parole Authority v. Woodard, 523 U.S.

EEE EEE EEE SPP PTT ETT TTT T TTT TTT TTT Tye 6

Searcy v. Simmons, 97 F. Supp. 2d 1055 (D. Kan.

DCU RbesERddbbeSSeeesecececcoscececeeoeeees 6

Spevack v. Klein, 385 U.S. 511 (1967)................ 5, 6

Tedder v. Francke, 931 F.2d 897, 1991 WL 65497 (9th

Cir. Apr. 24, 1991)...... tine dee sebeneeees 7, 8

Turner v. Safley, 482 U.S. 78 (1987) .............04: 9, 10

iv

TABLE OF AUTHORITIES - Continued

Page

Uniformed Sanitation Men Ass’n v. Commissioner of

Sanitation, 392 U.S. 280 (1968) .............ceeeeeee 5

Washington v. Harper, 494 U.S. 210 (1990).......... 9, 10

STATEMENT OF THE CASE?

a. Nature of the Case

Mr. Lile was convicted in 1983 of kidnaping, rape,

and aggravated sodomy. He pled not guilty and still

maintains that his conduct with the victim was consen-

sual. He is incarcerated at the Lansing (Kansas) Correc-

tional Facility (“LCF”), where he is serving a life

sentence. (Pet. App. at 33-34a).

When Mr. Lile entered LCF, prison officials did not

require him to take part in sex offender therapy. How-

ever, in 1994, prison officials notified Mr. Lile that they

were requiring him to take part in the Department of

Corrections’ Sexual Abuse Treatment Program (“SATP”).

As part of their efforts, officials added this program to

Mr. Lile’s inmate program agreement (“IPA”). (Pet. App.

at 34a).

Participants in SATP are required to sign an “Admis-

sion of Guilt”? form and to provide a detailed sexual

history, including any uncharged sexual offenses. Peti-

tioners then utilize polygraph testing to determine the

veracity of the participant’s statements, and they also

employ penile plethysmograph testing for treatment pur-

poses. These testing results are then discussed in group

therapy sessions. (Pet. App. at 34-35a).

1 Mr. Lile is content to proceed with Petitioners’ statement

as to the opinions below, jurisdiction, and statutes involved in

this appeal. See Sup. Ct. R. 24.2.

2 After Mr. Lile filed suit in the United States District Court

for the District of Kansas, Petitioners changed the title of this

form to “Admission of Responsibility.” (Pet. App. at 34a).

In 1995, the Kansas Department of Corrections

revised its internal management policies and procedures

(“IMPP”). (Pet. App. at 34a). IMPP compels inmates to

participate in required prison programming. In the

instance of SATP, failure to complete the program results

in a mandatory transfer in custody to maximum security

and a concomitant implementation of sanctions. These

sanctions include, but are not limited to: (1) limiting

visitation to clergy, counsel, and immediate family; (2)

limiting the amount of personal property an inmate may

keep in his cell; and (3) limiting an inmate to $0.60 per

day in prison pay. (Pet. App. at 35a). Moreover, stay in

maximum security custody exposes an inmate to a

greater threat of personal harm. (Pet. App. at 18a).

b. District Court

Mr. Lile agrees with Petitioners’ recitation of the

District Court proceedings, but would add one point. In

granting Mr. Lile summary judgment on his Fifth Amend-

ment claim, the District Court held that, consistent with

the Fifth Amendment, Petitioners still could continue to

run SATP in its present form as long as they gave Mr. Lile

immunity for any incriminating statement which he dis-

closed. (Pet. App. at 45a).

* These same sanctions are imposed upon an inmate

convicted by the prison of theft, arson, or drug possession. (Pet.

App. at 24a).

c. The Tenth Circuit

Mr. Lile agrees in part with Petitioners’ interpretation

of the Tenth Circuit's opinion but would offer additional

clarification.

In discussing the Tenth Circuit's determination that

the penalties involved in this case implicated the Fifth

Amendment, Petitioners state: “In reaching that conclu-

sion, the [Tenth Circuit] emphasized that a critical factor

is that refusal to participate in the SATP, ‘standing alone,’

results in the loss of privileges.” (Pet. at 5, citing to Pet.

App. at 19a).

However, the Tenth Circuit did not state that the

refusal to participate in the program resulted in the loss of

privileges. Rather, the court noted that: “Plaintiff’s refusal

to submit to the interrogation - to disclose the required

information about his sexual history - standing alone,

would certainly result in the transfer to [maximum secu-

rity] and the corresponding loss and restrictions of many

privileges.” (Pet. App. at 19a) (emphasis supplied).

Similarly, Petitioners suggest that the Tenth Circuit

determined that SATP was not truly “voluntary” because

sanctions automatically followed Mr. Lile’s “refusal to

participate in the SATP program.” (Pet. at 5). Again,

Petitioners misstate the Tenth Circuit's ruling. The Tenth

Circuit concluded that participation in SATP was not

voluntary because Petitioners “would impose sanctions

solely because Plaintiff wishes to remain silent and

invoke his Fifth Amendment right against self-incrimina-

tion. ...” (Pet. App. at 20a). This distinction may seem

minor; however, it is important to note that the Tenth

Circuit held that it was Mr. Lile’s invocation of his Fifth

Amendment rights — not an overall refusal to participate in

SATP - that triggered Petitioner’s sanctions.

+

REASONS WHY THE PETITION SHOULD BE DENIED

Respondent Robert G. Lile (“Lile”) respectfully

requests this Court deny the Petition for a Writ of Cer-

tiorari seeking review of the United States Court of

Appeals for the Tenth Circuit's affirmation of the United

States District Court for the District of Kansas’ grant of

summary judgment for Mr. Lile.

The issue of sexual abuse and treatment is one that

demands attention from the State uf Kansas. Mr. Lile is

willing to take part in SATP. However, in order to do so,

he must admit he committed the crime for which he is

incarcerated. If he does make this admission, he faces

potential charges for perjury. He must also catalog alli

uncharged sexual offenses. If he does so, prison officials

are required under state law to report these crimes. He

must submit to polygraph examinations to gauge the

veracity of his admissions. All results and admissions are

then discussed in group sessions.

Mr. Lile’s invocation of his Fifth Amendment privi-

_ lege against self-incrimination will result in Petitioners’

transfer of Mr. Lile to maximum security, stripping him of

his ability to work certain jobs and have visitation with

' anyone outside of counsel, clergy, and immediate family,

_ while at the same time exposing him to a more dangerous

| environment. These same sanctions are imposed upon

inmates when an inmate is convicted by the prison of

theft, arson, drug use or possession, and assault or when

a prosecutor files felony charges against an inmate.

This Court should not grant Petitioners’ request for

review. The Tenth Circuit’s decision was correct. More-

over, there is nothing unique or complicated about this

case. Mr. Lile faces an appreciable risk of incrimination if

forced to admit guilt and catalog his uncharged crimes.

Further, Petitioners punish him for invoking his constitu-

tional rights.

Neither the District Court nor the Tenth Circuit's

decision was so sweeping as to eliminate SATP and Peti-

tioners’ interest in rehabilitating sex oifenders. Peti-

tioners can continue to operate SATP - and even penalize

those who refuse to take part - as long as they give

immunity for those incriminating statements made dur-

ing treatment.

A. The Tenth Circuit followed this Court’s prece-

dent in determining that the SATP compels Mr.

Lile to incriminate himself.

Mr. Lile agrees that his move to maximum custody

and the corresponding sanctions he faces «io not invo! ve

liberty interests. However, as stated by the Tenth Circuit

and not disputed by Petitioners, this Court has repeat-

edly found Fifth Amendment violations without engag-

ing specifically in a liberty interest review. See, ¢.g.,

Lefkowitz v. Cunningham, 431 U.S. 801, 808-09 (1977);

Spevack v. Klein, 385 U.S. 511, 516 (1967); Lefkowitz v.

Turley, 414 U.S. 70, 82 (1973); Uniformed Sanitation Men

Ass'n v. Commissioner of Sanitation, 392 U.S. 280, 283-85

(1968); Garrity v. New Jersey, 385 U.S. 493, 500 (1967);

Gardner v. Broderick, 392 U.S. 273, 278-79 (1968). As the

Court stated in Spevack: “ ‘Penalty’ is not restricted to fine

or imprisonment. It means, as we sai‘ in Griffin v. Califor-

nia, the imposition of any sanction which makes the asser-

tion of the Fifth Amendment privilege ‘costly.’ ” Spevack,

385 U.S. at 515 (emphasis added).

The Tenth Circuit followed this Court’s rulings in

determining that SATP violated Mr. Lile’s Fifth Amend-

ment rights. As such, this Court should not grant Peti-

tioners’ request for review.

Petitioners also suggest that, because this Court did

not find Fifth Amendment violations in other cases, the

Tenth Circuit was wrong in finding one here. Again, the

Tenth Circuit properly distinguished this Court's rulings

in Ohio Adult Parole Authority v. Woodard, 523 U.S. 272

(1998), and Baxter v. Palmigiano, 425 U.S. 308 (1975). In

Woodard, after noting that drawing adverse inferences for

silence in a civil proceeding did not violate the Fifth

Amendment, the Court stated that “[i]t is difficult to see

how a voluntary interview could ‘compel’ respondent to

speak.” Woodard, 523 U.S. at 286. The Tenth Circuit prop-

erly distinguished Woodard, agreeing with this Court that

the clemency interview in Woodard was voluntary and

that “no separate and distinct substantial or potent conse-

quences were imposed” as they are in Mr. Lile’s situation.

(Pet. App. at 21a). The dramatic language of Searcy v.

Simmons, 97 F. Supp. 2d 1055, 1059 (D. Kan. 2000) (Pet. at

9), notwithstanding, Mr. Woodard’s clemency did not

hinge on whether he participated in clemency review.

(Pet. App. at 21a). In the present case, the sanctions

Petitioners would impose come as a direct result of Mr.

Lile’s invocation of his Fifth Amendment rights.

Similarly, with respect to Baxter v. Palmigiany, 425

U.S. 308 (1975), the Tenth Circuit correctly noted that, in

Mr. Lile’s situation, the penalties he faced were not as

speculative as the possible repercussions in Baxter. Again,

in Mr. Lile’s case, punishment automatically results when

he invokes his Fifth Amendment rights. (Pet. App. at

19a).

Moreover, despite Petitioners’ repeated suggestions

(Pet. at 10-11), the Tenth Circuit did not suggest it was

Mr. Lile’s refusal to enter SATP that triggered his sanc-

tions. Rather, it was his invocation of his Fifth Amend-

ment rights: “[W]Je hold that there is a ‘reasonable basis

for concluding that [Defendants] attempted to attach an

impermissible penalty to the exercise of the privilege

against self-incrimination.’ ” (Pet. App. at 25a-26a (quot-

ing Minnesota v. Murphy, 465 U.S. 420, 437 (1984)). The

District Court made a similar finding: “[O)peration of

IMPP 11-101 clearly presents such a costly burden to

plaintiff’s exercise of his rights under the Fifth Amend-

ment.” (Pet. App. at 44a). Any attempt to suggest that

Petitioners punish Mr. Lile simply because he seeks to

avoid SATP are incorrect and certainly should not require

review by this Court.

B. The Tenth Circuit’s decision does not conflict

with other courts’ decisions to the extent that

this Court should review it.

Petitioners identify four cases which they believe

conflict with the Tenth Circuit’s decision. Two of those

cases, Tedder v. Francke, 931 F.2d 897, 1991 WL 65497 (9th

Cir. Apr. 24, 1991) (unreported), and Guilkey v. Holden, 865

F.2d 258, 1988 WL 134526 (6th Cir. Dec. 16, 1988) (unre-

ported), do state that an inmate has no liberty interest in

discretionary parole. This is not in dispute in the present

case, nor could it be given the previous rulings by this

Court. See, e.g., Greenholtz v. Inmates of the Nebraska Penal

and Correctional Complex, 442 U.S. 1 (1979). However,

these cases are not in conflict with the Tenth Circuit's

decision here.

In Tedder, the Ninth Circuit Court of Appeals rejected

plaintiff's Fifth Amendment claim, not under a liberty

interest analysis, but because “[a]ny admissions that he

would make would be privileged” under state law. Ted-

der, 1991 WL 65497, at **2. “An inmate patient’s dis-

closures to a treating therapist are unavailable to the state

or federal government to use in a court proceeding. If he

chose to undergo the treatment, [plaintiff] would not be

providing the state with incriminating evidence.” Id.

Further, in Guilkey, the Sixth Circuit Court of Appeals

did state that Kentucky’s parole statute and its sex

offender treatment program did not create a liberty inter-

est protected by due process. The court did not, however,

state that this lack of liberty interest doomed plaintiff's

Fifth Amendment claim. On the contrary, plaintiff’s Fifth

Amendment claim extinguished because “plaintiff's

admission would be a privileged communication not sub-

ject to disclosure in any civil or criminal proceeding.” Id.

at **1.

Similarly, the decisions in Bankes v. Simmons, 265 Kan.

341, 963 P.2d 412 (1998), and Chambers v. Bachicha, 39 F.3d

1191, 1994 WL 596702 (10th Cir. Oct. 28, 1994) (unre-

ported), also do not demand review of Mr. Lile’s case.

While Bankes found no compulsion under the Fifth

Amendment after a liberty interest analysis, the Tenth

Circuit’s decision in this case is the better one. The Tenth

Circuit found no evidence that this Court had ever

engaged in a liberty interest analysis when examining a

Fifth Amendment claim and determined that this Court's

approach was better suited for Mr. Lile’s claim. (Pet. App.

at 14a).

As for Chambers, the Tenth Circuit here decided to

revisit a terse discussion from this unpublished decision

that brushed upon the Fifth Amendment/liberty interest

issue and decided that, because this Court had never

utilized a liberty interest analysis before for Fifth Amend-

ment claims, it need not do the same. Such a correction

does not create the conflict in the circuit courts on which

Petitioners rely for this Court’s review.

C. The Turner “reasonableness” standard of review

applies in the prison context; that the Tenth

Circuit employed the four-factor test in deter-

mining whether Petitioners met that standard is

not sufficient to merit review.

The Tenth Circuit did not err when it employed the

“reasonableness” standard of review set forth in Turner v.

Safley, 482 U.S. 78 (1987), in determining that SATP vio-

lated Mr. Lile’s Fifth Amendment rights. This approach is

consistent with this Court’s ruling in Turner that this

standard should be used to determine whether a prison

regulation is invalid when it interferes with an inmate’s

constitutional rights, even if those rights are fundamen-

tal. See id. at 89; see also Washington v. Harper, 494 U.S. 210,

10

224 (1990) (“We made quite clear that the standard of

review we adopted in Turner applies to all circumstances

in which the needs of prison administration implicate

constitutional rights.”).

However, it appears that Petitioners seek review to

determine if the Tenth Circuit’s use of the four-factor

analysis set forth in Turner is appropriate for Fifth

Amendment claims. Mr. Lile agrees that this Court has

never stated that the four-factor test was a required anal-

ysis under Turner, but it has suggested that what Turner

did, in part, was “identify several factors relevant to this

reasonableness determination.” O’Lone v. Estate of Shab-

azz, 482 U.S. 342, 350 (1987).

Working from the premise that a court can turn to the

Turner “reasonableness” standard when prison policies

affect constitutional rights, the Tenth Circuit used the

four-factor analysis to determine whether SATP met that

“reasonableness” standard. The court only had to deter-

mine that SATP passed the Turner “reasonableness” stan-

dard of review. That it did more and turned to the four-

factor test suggested by this Court to assist that deter-

mination does not warrant this Court’s attention.‘

# Since this Court decided Turner in 1987, it has turned to

the Turner factors in two instances where prison regulations

impacted the constitutional rights of inmates. See O’Lone, 482

US. at 350-51; Washington, 494 U.S. at 224-226.

a

11

D. Although sex offender treatment is important,

the framework suggested by the lower courts

permits Petitioners to meet all of its stated

goals for SATP.

Petitioners feel handcuffed to provide the curative

benefits of SATP unless they can rely on their system of

sanctions to motivate inmates. They suggest that SATP

cannot work unless participants can “overcom[e] denial”

and be open about their sex offenses. Their treatment

programs have been successful, but need to rely upon a

system of “strong incentives” in order to get inmates to

participate. (Pet. at 14-15).

However, there is little reason for the Court to inter-

vene to provide Petitioners a workable solution on policy

grounds. The only manner in which the lower courts’

rulings alter Petitioners’ ideal structure of SATP is to give

immunity for incriminating statements made. As Peti-

tioners are motivated by an interest in getting sex

offenders to participate with candor and honesty (while

being able to penalize them for refusing treatment), the

District Court and Tenth Circuit - following precedent

from this Court - already have provided such framework

to Petitioners. By giving immunity for any incriminating

statements, Petitioners will secure the frank discussion

required for the treatment of sex offenders. Further, pro-

viding immunity would enable Petitioners to leave in

place their system of sanctions for those who refuse.

Thus, Petitioners could move closer to their goals of

rehabilitation while maintaining leverage to punish those

who choose not to participate.

12

For example, Mr. Lile agrees that participation in s

offender treatment is an important issue for prison iy

cials, and he 1s willing to take part in such treatment ?

given ‘mmunity for any incriminating statements. Under

this framework, Petitioners would secure open discussion

from Mr. Lile on his sexual history, enabling them to

covide sex offender treatment to him. But, if Mr. Lile

decided he did not want to participate in SATP, Petj-

tioners would still be equipped with the ability to sanc-

tion Mr. Lile by sending him to maximum custody. There

is little reason for the Court to grant Petitioners’ writ on

this point; their goals of rehabilitation can be met under

the present rulings of the lower courts.

—?®

CONCLUSION

For the foregoing reasons, Mr. Lile respectfully

requests that this Court deny the petition for a writ of

certiorari.

Respectfully submitted,

MatTrHew J. WILTANGER

SHoox, Harpy & Bacon L.L.P.

10801 Mastin, Suite 1000

Overland Park, Kansas 66210

913/451-6060

FAX 913/451-8879

Counsel for Respondent

March 2001