Petitioners Brief — McKune v. Lile

a i Cente

No. 00-1187

IN THE

—_—

Supreme Court of the Gnited States

David R. McKune, Warden,

Charles Simmons, Secretary,

Kansas Department of Corrections

Petitioner,

Robert G. Lile,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

BRIEF FOR PETITIONER

TIMOTHY G. MADDEN

Chief Legal Counsel

Kansas Department of

Corrections

900 S.W. Jackson

Topeka, Kansas 66612-1284

(785) 296-3317

CARLA J. STOVALL

Attorney General

STEPHEN R. MCALLISTER

State Solicitor

(Counsel of Record)

JARED S: MAAG

120 S.W. 10th Avenue,

2nd Floor

Topeka, Kansas 66612-1597

(785) 296-2215

Counsel for Petitioner

pea i, ae Mee je. oes aye me te is ee Sie 1s

JT eS Gees Se pie) Pade os 4 cata 2s BETS omen Saad

QUESTION PRESENTED

Whether the revocation of correctional institution privileges

violates the Fifth Amendment’s privilege against self-

incrimination where the inmate has no liberty interest in the

lost privileges and such revocation is based upon the inmate’s

failure to accept responsibility for his crimes as part of a sex

offender treatment program?

—

-

* . > o

‘ # Wad Re sass

ne a> Tae * gone

: ~ ae iat sere +

- TS eR ol

* = s, * _

x “ ¥.

=

log.

“kh

TABLE OF CONTENTS

Page

ie occccccadcedssscvedscenes i

i <.ccceedes cseckeceseece iv

ee weet dd keadeesseeeseccesecs l

EEE ee l

CONSTITUTIONAL PROVISION INVOLVED ....... l

STATEMENT OF THE CASE . ww... ccc cece cceees l

SUMMARY OF THE ARGUMENT ................ 11

ieee eaccdebeeneacssecseecese 13

I. There ls No Unconstitutional Compulsion In

TT <i.dgeked6eense Geesesecccccces 13

A. The Touchstone For Unconstitutional

Compulsion In The Prison Setting Is

The Imposition Of Atypical Hardships ........ 15

B. The Prison Conditions Here Do Not Amount

To Unconst'tutional Compulsion Under The

ee ee Bl ne ee ececes 23

C. The Tenth Circuit’s Decision Is Contrary To

The History And Origins Of The Fifth

Il. State Prison Regulations That Serve Rehabilitative

Purposes Are Entitled To Deference From The

A. The Tenth Circuit’s Decision Fails To

Accord The Proper Respect To State

i tebe eestosedteeeescceess 32

TABLE OF CONTENTS

(continued)

Page

B. The Tenth Circuit Incorrectly jxelied On The

Turner v. Safley, 482 U.S. 78 (1987),

I er a EL 35

C. The Ability To Bestow Or Withhold Correctional

Institution Privileges Is An Extremely Important

Rehabilitation Tool For Prison Administrators ... 41

CONCLUSION

IV

TABLE OF AUTHORITIES

Pages

Cases

Amen-Ra v. Dep't of Defense, 961 F. Supp. 256

ED 6.6 bec dicks ceucdeeduenseenas 24

Andresen v. Maryland, 427 U.S. 463 (1976) .......... 29

Asherman v. Meachum, 957 F.2d 978 (2d Cir. 1992) ... 27

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

SED, GEE eocnbdcdcGubecoedsbucbedecedvenews 18

Baxter v. Palmigiano, 425 U.S. 308 (1976) ..... 12, 25, 26

Bordenkircher v. Hayes, 434 U.S. 357 (1978) ......... 14

Brady v. United States, 397 U.S. 742 (1970) ....... 14, 42

Brooker v. Warden, No. 98-466-JD, 1999

WL 813893 (D.N.H. June 22, 1999) ........... 24, 28

California Dep't of Corrections v. Morales,

Dt MD <i. dccdusunenesedeececenns 27

Chaffin v. Stynchcombe, 412 U.S. 17 (1973) ........-. 19

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

WL 596702 (10th Cir. 1994) ..............00055- 18

Corbitt v. New Jersey, 439 U.S. 212 (1978) .......... 14

Couch v. United States, 409 U.S. 322 (1973) ...... 30, 33

Dominique v. Weld, 73 F.3d 1156 (1st Cir. 1996) ...... 28

Dunn v. White, 880 F.2d 1188 (10th Cir. 1989)........ 36

Fisher v. United States, 425 U.S. 391 (1976) ........-. 13

Foote v. Spiegel, 995 F. Supp. 1347 (D. Utah 1998) ... 37

Griffin v. California, 380 U.S. 609 (1965) ........... 30

Hewitt v. Helms, 459 U.S. 460 (1983) ............... 21

Bec Ges, Fe Ge OGD oc ccc ctcccccccccccess 29

Gilmore v. McKune, 940 P.2d 78 (Kan. Ct.

Be, TEBE cc cccccesccecccossecscngecccceness 38

Jenkins v. Anderson, 447 U.S. 231 (1980) ..........-. 19

Johnston v. Simmons, No. 97-3354, 1999 U.S. Dist.

LEXIS 21891 (D. Kan. May 26, 1999) ............ 27

Johnston v. Simmons, 45 F. Supp. 2d 1220

PAR CEEED caddccccusssecesecesoses oo ne

Vv

TABLE OF AUTHORITIES

(continued)

Pages

Jones v. North Carolina Prisoners’ Labor Union, Inc.,

ite cede eeebesens 34, 38

Kansas v. Crane, No. 00-957 ............000ccceuee 43

Kansas v. Hendricks, 521 U.S. 346 (1997) ........ 27, 43

Lefkowitz v. Turley, 414 U.S. 70 (1973) .......... 26, 34

Lile v. McKune, 24 F. Supp. 2d 1152 (D. Kan. 1998) .... 1

Lile v. McKune, 45 F. Supp. 2d 1157 (D. Kan. 1999) .. 2,3

Lile v. Simmons, 929 P.2d 171

EE ee eee 3, 21, 39

Lile v. Simmons, No. 00-3172, 2001 U.S. Dist.

LEXIS 5518 (D. Kan. Apr. 20, 2001) ............. 39

Malloy v. Hogan, 378 U.S. 1 (1964) ................ 30

McGautha v. California, 402 U.S. 183 (1971) ........ 14

McMorrow v. Little, 109 F.3d 432

I nes eth ale Reel as ae gy 16, 25, 26

Meachum v. Fano, 427 U.S. 215 (1976) ....... 15, 20, 31

Michenfelder v. Sumner, 860 F.2d 328 (9th Cir. 1988) .. 36

Michigan v. Tucker, 417 U.S. 433 (1974) ............ 15

Minnesota v. Murphy, 465 U.S. 420 (1984) .. 9, 12,24, 25

Montana v. Imlay, 506 U.S. 5 (1992) ............... 25

Neal v. Shimoda, 131 F.3d 818 (9th Cir. 1997) ........ 28

Nemecheck v. McKune, 941 P.2d 952 (Kan. Ct.

EEE SR res 2 ey eee 28

Ohio Adult Parole Auth. v. Woodard, 523

A oe on ee ee dade aed passim

O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987) .. 33,34

Orloff v. Willoughby, 345 U.S. 83 (1953) ............ 19

Pell v. Procunier, 468 U.S. 417 (1974) ........... 21,34

Reed v. McKune, No. 98-3418, 2000 WL 1278488

PE ‘ccccdvede¢duductdese 24, 27

Russell v. Eaves, 722 F. Supp. 558 (E.D. Mo. 1989) 24, 28

Sandin v. Conner, 515 U.S. 472 (1995) ........... passim

vi

TABLE OF AUTHORITIES

(continued)

Pages

Searcy v. Simmons, 97 F. Supp. 2d 1055

EE er ee 24

Seling v. Young, 531 U.S. 250 (2001) ............... 43

State v. Lile, 237 Kan. 210, 699 P.2d 456 (1985) ....... 2

Turner v. Safley, 482 U.S. 78 (1987) ....... 10, 12, 34, 35

Ulimann v. United States, 350 U.S. 422 (1956)........ 29

United States v. Monia, 317 U.S. 424 (1943) ......... 13

United States v. Rylander, 460 U.S. 752 (1983) ....... 18

United States v. Washington, 431 U.S. 181 (1977) ..... 13

Constitution & Statutes

no dccodunnateaeesivsecusesé 1, 33

En sconteebenenucecedenseeceusass l

Miscellaneous

Judith V. Becker & William D. Murphy, What

We Know And Do Not Know About Assessing And

Treating Sex Offenders, 4 Psychology, Pub.

PT is MED ccvcccedencesesoscosceees 42

Mark Berger, Taking the Fifth: The Supreme

Court and the Privilege Against Self-Incrimination

Pi Pcccsedesgdeecadatsesedededdésonceccesss 30

Brief of Amicus Curiae American Professional

Society on the Abuse of Children Supporting

Neither Party in Montana v. Imlay, No. 91-687 ..... 42

Henry J. Friendly, The Fifth Amendment Tomorrow:

The Case for Constitutional Change,

37 U. Cin. L. Rev. 671 (1968) ...............64.. 19

Leonard W. Levy, History and Judicial History:

The Case of Fifth Amendment, in Constitutional

Opinions: Aspects of the Bill of Rights (1986) ...... 19

Leonard W. Levy, Origins of the Fifth Amendment:

The Right Against Self-Incrimination (2d ed.,

SEED 6 coucsevcetesteccéinccncescune 29

vil

TABLE OF AUTHORITIES

(continued)

Stefan J. Padfield, Comment, Self-Jncrimination

and Acceptance of Responsibility in Prison

Sex Offender Treatment Programs,

49 U. Kan. L. Rev. 487 (2001)

OPINIONS BELOW

The September 5, 2000, decision of the United States Court

of Appeals for the Tenth Circuit affirming the District Court

is reported at 224 F.3d 1175, and is included in the petition

appendix. The decision of the District Court granting

summary judgment to respondent is reported at 24 F. Supp. 2d

1152, and is also included in the petition appendix.

JURISDICTION

This Court’s jurisdiction to review the final judgment of the

Tenth Circuit is invoked pursuant to 28 U.S.C. § 1254(1). The

Tenth Circuit issued its decision in this case on September 5,

2000, and denied the State’s timely petition for rehearing and

suggestion for rehearing en banc on October 24, 2000. The

State filed a timely petition for a writ of certiorari on January

22, 2001, and this Court granted review on May 14, 2001.

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the Constitution provides in

pertinent part that

“No person . . . shall be compelled in any criminal case

to be a witness against himself... .”

STATEMENT OF THE CASE

1. Nature of the Suit. The Kansas Department of

Corrections employs a comprehensive system of earnable

inmate privileges in order to manage the offender population

and reinforce constructive behavioral changes. As part of this

system, inmates work their way through privilege incentive

levels in accordance with their behavior, at all times subject to

reduction for disciplinary, work or recommended program

infractions.

Inmate Lile, a convicted, violent sex offender, filed this suit

after his prison privileges were to be reduced to Level I (from

Level III) for his refusal to participate in recommended

2

treatment, the Sexual Abuse Treatment Program (SATP).

Inmate Lile objected to the SATP’s requirement that he accept

responsibility for his sex crimes. He claims that the change in

his prison privileges for refusing to accept responsibility in the

SATP would violate his Fifth Amendment privilege against

self-incrimination.

2. Background.

A. Facts of Conviction. Robert G. Lile was convicted

in 1983 of the rape, aggravated sodomy, and aggravated

kidnapping of a female high school student. See State v. Lile,

237 Kan. 210, 699 P.2d 456, 457 (Kan. 1985); Lile v. McKune,

45 F. Supp. 2d 1157, 1159-60 (D. Kan. 1999).

At Lile’s trial, the victim testified that she had never met

Lile prior to the day of the crimes. She testified that the day of

the events she was on her way home from school when she

Saw a Car stopped beside the road with the hood up. Lile, who

was standing by the car, flagged her down and asked for help.

He asked her to pump the brakes of the car while he was

looking under the hood. He then came to the driver’s door and

told the victim to slide over. He pulled a gun, which turned

out to be a starter’s pistol, from his belt, pointed it at the

victim, and ordered her to lock the passenger door. Lile then

forced the victim to perform oral sex. After a few minutes, he

drove her to a field where he ordered her to remove her

clothes. Lile then raped her. See Lile, 699 P.2d at 457.

After getting away from Lile, the victim immediately

returned to her school, visibly upset, and reported the incident.

When Lile was arrested, the police found him in possession of

the starter pistol. Although Lile argued that he had met the girl

a few days before these events, and that their sexual

encounters were consensual, both the Kansas Supreme Court

and a federal district court easily concluded that the evidence

supported Lile’s convictions beyond a reasonable doubt. See

Lile, 699 P.2d at 458 (“We have no hesitancy in holding that,

3

considering the entire evidentiary record in the light most

favorable to the prosecution, there was sufficient evidence for

the jury to find the defendant guilty beyond a reasonable doubt

of rape and aggravated sodomy’); Lile, 45 F. Supp. 2d at 1161

(“The court finds the evidence, when viewed in the light most

favorable to the prosecution, clearly is sufficient for a

reasonably jury to find beyond a reasonable doubt that

petitioner was guilty of the charged offenses”).

In 1983, Lil. also was convicted of attempted aggravated

escape from custody, after he tried to escape from Lansing.

See Lile v. Simmons, 929 P.2d 171, 172 (Kan. Ct. App. 1996).

B. The Kansas Internal Management Policy And

Procedure System. In 1996, the Kansas prisons adopted an

Internal Management Policy and Procedure system (“IMPP”’).

Joint Appendix (“J.A.”) 47. The Kansas IMPP is designed to

“implement a comprehensive system of earnable offender

privileges which will provide an effective means of managing

’ the offender population and reinforcing constructive

behavioral changes in offenders.” J.A. 13.

The IMPP identifies “earnable privileges’—such as

television ownership, use of funds, and visitation—and the

“Incentive Levels” to which those privileges are attached. /d.

at 14-19. The Incentive Levels begin with “Intake Level,”

when an inmate first enters prison, and progress through

Levels I, I, and III in prison, and then to Levels IV and V for

post-incarceration supervision. /d.; see also id. at 51-56. The

IMPP also provides for “Reductions in Level” due to various

inmate infractions or misbehavior. Among the bases for a

reduction in Incentive Level are “[rjefusal to participate in

recommended programs ....” /d. at 19; see also id. at 57-58.

A fold out chart of the Incentive Levels and the corresponding

earnable privileges is located at page 27 of the Joint Appendix.

C. The Kansas Sexual Abuse Treatment Program.

Prison-based treatment for convicted sex offenders in Kansas

4

prisons began in 1988. The current program is referred to as

the Sexual Abuse Treatment Program (“SATP”). The SATP

is an 18-month long program that involves substantial

counseling on a daily basis. J.A. 107. Admission to the

program is voluntary, and frequently participation in the SATP

is recommended for sex offenders by prison officials.

As part of the SATP, inmates are expected to complete and

sign an “Admission of Responsibility” form. J.A. 31, 107."

Participating inmates also are required to complete a sexual

history form, id. at 32-34, which requires them to detail all of

their past offenses.

Participating inmates are informed about the limits of

confidentiality in the program. In particular, they are informed

that confidentiality may be compromised in six specific

circumstances:

1) Mandatory reporting of chi‘d abuse.

2) Court ordered release of records.

3) Information needed to protect a third party.

4) Information needed to protect participants from harm-

ing themselves or others.

5) Escape planning.

6) Inappropriate relations with staff.

J.A. 35. Although inmates are thus assured of a significant

level of confidentiality, there is no legal immunity for any

statements made during participation in the SATP. To the best

of Kansas’s knowledge, however, no inmate has ever been

charged or prosecuted for any offense as a result of

' At the program’s inception, the form was titled “Admission of Guilt,”

J.A. 30, but the form was changed to its current “Admission of

Responsibility” format in 1996. /d. at 123-26.

te et nl a A OES

5

participation in prison sex offender treatment during the

approximately twelve years such programs have been in

existence in Kansas prisons.

The SATP also uses a “Termination Pnor To Completion”

form that advises an inmate of the consequences of

withdrawing from the SATP once begun. J.A. 37. This form

requires the inmate’s signature and that of a witness, to ensure

that inmates fully appreciate the consequences of such a

decision. /d.

D. Housing And Custody Classifications/The Lansing

Prison. An inmate’s housing assignment is not an earnable

privilege under the IMPP. J.A. 54. Instead, housing

assignments are a function of an inmate’s custody

classification and other factors, such as the need for access to

medical facilities, the location of assigned programs, and so.

forth. /d. at 59. In the Lansing prison, where inmate Lile

resides, there are maximum, medium, and minimum security

sections of the prison.’ /d. at 59-60. But, because housing

assignments are based on a variety of factors, there are

medium security inmates in the maximum security area, and

minimum security inmates in the medium security area. /d. at

60, 62-63. There simply is no strict segregation of inmates in

the medium and maximum security areas based on custody

classification. Nor are privileges (i.e., Incentive Levels, such

as I, II, or III) inherently tied to custody classification. Thus,

inmates with a maximum security custody classification may

have Level III privileges, such as personal televisions.

Violations of the IMPP rules may result in an inmate being

moved from one area to another, but do not automatically

* The maximum and medium security units are “contiguous.” J.A. 60. The

minimum security unit, which houses only minimum security inmates, is

on the same grounds but is physically separate from the remainder of the

facility. /d. at 61.

6

change the inmate’s custody classification. Thus, a medium

security inmate who refused, for example, to participate in a

recommended treatment program, might be moved to the

maximum security area, but to a medium security cell within

that area. J.A. 65-66.

Furthermore, the Lansing warden, David R. McKune, when

asked in his deposition whether the maximum security area is

more dangerous than the medium security area, responded

that:

I’m not sure there’s enough differences between the two to

Say One is more dangerous than the other. I mean, they both

have long-term, they both have violent offenders, they both _

have all kinds of nooks and crannies and hiding spots, and

I have assaults in both of them.

J.A. 76. Similarly, when asked whether there are more

murderers or dangerous offenders in maximum security, he

explained that such generalizations are difficult to make,

“because custody isn’t just a function of your crime, it’s also

a function of all of the other points and some of that just is a

matter of how you’re adjusting, what you’re doing, how much

time you’ ve got served, all those things. I mean, I have murder

1’s living out in the minimum unit.” Jd. at 77. Indeed,

Warden McKune repeatedly stated that the maximum security

area is not inherently more dangerous than the medium

security area. Jd. at 76-81.

E. Inmate Lile. Based upon the offenses of which he

was convicted, prison officials eventually recommended that

inmate Lile participate in the SATP. He refused, because of

the acceptance of responsibility requirement, and filed this

suit, obtaining injunctive relief. Otherwise, the consequences

of inmate Lile’s refusal to participate would have been (under

the IMPP) a reduction from Level III status to Level I, with a

corresponding reduction in privileges. He also would have

7

been moved to a cell in the maximum security area of the

prison.

3. The District Court Proceedings. The District Court

initially granted a temporary injunction to inmate Lile, J.A.

172-79, precluding the KDOC from reducing his privilege

incentive level and keeping him on the SATP waiting list. The

District Court ultimately granted summary judgment to inmate

Lile on his Fifth Amendment claim. Petition Appendix (“Pet.

App.”) 33a-54a. The District Court further ordered the

injunction continued until appellate review is completed. Jd.

at 55a.

4. The Tenth Circuit's Decision. The Tenth Circuit

affirmed the District Court. Pet. App. 3a-32a. The Tenth

Circuit began its Fifth Amendment analysis by briefly

addressing the incrimination component of the privilege. Jd.

at 6a-7a. The Tenth Circuit found the incrimination element

of the Fifth Amendment privilege satisfied here for two

reasons. First, the written sexual history form might require

persons such as inmate Lile to reveal uncharged sexual

offenses. Jd. at 6a-7a. Second, completion of the Acceptance

of Responsibility form could subject inmates such as Lile to

perjury charges for having maintained their innocence at trial.

Id. at 7a.

The Tenth Circuit then addressed the “compulsion” element

of the privilege. The court began with an examination of the

adverse consequences to an inmate for refusing to accept

responsibility or to provide a written sexual history.

Observing that inmate Lile faced transfer to maximum security

(from medium security) if he failed to comply with the SATP

requirements, the court noted that such a “transfer would

restrict [inmate Lile’s] privileges.” Pet. App. 10a.

Specifically, he [inmate Lile] would lose his personal TV;

he would have limited access to prison organizations and

activities and would be unable to participate in the IMPP;

8

he would have limited access to the gym and yard area;

there would be a substantial reduction in the amount of

money he could spend in the canteen per pay period, from

$140 per payroll . . . to $20 per payroll . . .; he would

receive a reduction in pay and intake property; and he

would have substantially restricted visitation privileges.

Id.

The Tenth Circuit, however, correctly recognized that Lile

would not be denied parole nor lose any good time credits (or

the opportunity to earn such credits) because he refused to

participate in the SATP. Pet. App. 10a-13a. In other words,

his sentence would be unchanged. The Tenth Circuit thus

concluded that the only adverse consequences inmate Lile

would suffer for refusing to participate in the SATP would be

“transfer to maximum security prison and the resulting loss of

privileges.” Jd. at 13a. According to the court, “[t]he critical

question, then, is whether the State’s imposition of these

consequences in response to [inmate Lile’s] invocation of his

Fifth Amendment right against self-incrimination constitutes

impermissible coercion.” /d.

In resolving the compulsion issue, the Tenth Circuit opined

that “(t]here is no single test or factor that is dispositive, so we

begin by examining Defendants’ arguments.” Pet. App. 13a.

The court first addressed the argument that there is no

compulsion here because inmate Lile’s loss of privileges

implicates no protected liberty interest under Sandin v.

Conner, 515 U.S. 472 (1995). Although recognizing that

changes in an inmate’s prison classification ordinarily do not

deprive him of a liberty interest, the Tenth Circuit opined that

“nowhere in the relevant jurisprudence does the Supreme

Court even hint that an individual attempting to show a

violation of his Fifth Amendment privilege must have a

protected liberty interest for compulsion to occur.” Pet. App.

14a. Rather, the court held that “[cJompulsion can be

established by hardships that may not be atypical and that do

9

not constitute enforceable liberty interests.” /d. at 15a; see

also id. at 17a (“It is clear that the compulsion element of a

Fifth Amendment claim can be established by penalties which

do not constitute a deprivation of protected liberty interests -

under the Due Process Clause”).

The Tenth Circuit then asserted that the “next critical

question is whether the consequences imposed constitute

penalties that are sufficiently potent and substantial to

implicate the Fifth Amendment.” Pet. App. 17a-18a.

Reviewing again the changes in privileges that would

accompany a move from medium to maximum security

(including loss of a personal TV), the Tenth Circuit concluded

that “these deprivations and changes in environment are

penalties sufficient to implicate the Fifth Amendment because

they have substantial or potent effects on the inmate.” /d. at

18a-19a. In reaching that conclusion, the court emphasized

that a critical factor is that refusal to participate in the SATP,

“standing alone,” results in the loss of privileges. /d. at 20a.

The Tenth Circuit next considered the argument that there

is no compulsion because participation in the SATP is

voluntary. The court opined that the fact that the change in

privileges in this case automatically followed refusal to

participate in the SATP undermined the argument that

participation “is truly voluntary.” Pet. App. 20a. In

supporting that conclusion, the Tenth Circuit distinguished

Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998)

(inmate invoked privilege in clemency proceeding), and

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

probation claimed privilege)—both of which found no Fifth

Amendment violation or compulsion—as cases in which the

person was not “punished or penalized solely for choosing to

remain silent.” Pet. App. 23a.

The Tenth Circuit then tured to “[t]wo additional

considerations” that it asserted might be helpful in determining

what constitutes compulsion. Pet. App. 23a. “The first is a

10

distinction between a privilege and a penalty.” /d. Opining

that such a distinction may have constitutional significance in

this context, the Tenth Circuit without analysis concluded that

inmate Lile’s loss of privileges in this case is “properly

characterized as imposing penalties.” /d. at 25a.

The Tenth Circuit also considered “the automaticity of the

penalty.” Pet. App. 25a. Again, the court opined that

Supreme Court decisions finding no compulsion in the context

of probation, parole or clemency, all involved situations in

- which adverse consequences for remaining silent were not

“automatic.” Jd. at 25a-26a. Thus, the court concluded that

“the State has violaved [inmate Lile’s] Fifth Amendment right

against self-incrimination.” Jd. at 27a.

Finally, after finding a constitutional violation, the Tenth

Circuit applied the balancing test of Turner v. Safley, 482 U.S.

78 (1987), which requires an assessment of “whether the

prison policy at issue ‘is reasonably related to legitimate

penological interests.” Pet. App. 27a (quoting Turner). The

Tenth Circuit recognized that the state has a legitimate—-even

compelling— interest in rehabilitating sex offenders, both for

the offenders’ own benefit and for the public safety. /d. at 28a.

The court also recognized that

[t}here is a rational connection between the policy of having

prisoners admit responsibility for their offenses and disclose

their sexual history in order to participate in the SATP and

the legitimate governmental interest in rehabilitation of sex

offenders. In fact, most mental health experts agree that a

“sex offender must admit his guilt for treatment and

rehabilitation to be effective.”

Id. at 29a (internal citations omitted) (emphasis added).

Nonetheless, the Tenth Circuit concluded that the balancing

of interests fevors inmate Lile, because (1) “there is no

evidence that [inmate Lile] has any alternative means of

exercising his Fifth Amendment right,” Pet. App. 30a, (2)

11

“there is no evidence that accommodation of the nght would

have any negative effect on guards, other prisoners, or prison

resources,” id., and (3) the alternative to the policy would be

to grant immunity for any statements made by the inmate. /d.

Opining that the state could still prosecute inmate Lile for

other sex crimes—but not using any statements he made in the

SATP—the Tenth Circuit concluded that “the Turner

balancing easily weighs in favor of [inmate Lile].” /d. at 32a.

SUMMARY OF THE ARGUMENT

There is no dispute in this case that the Kansas SATP is a

legitimate, therapeutic treatment program. No evidence

suggests that the Kansas SATP is a subterfuge for gathering

incriminating evidence to support prosecution of inmates for

previously uncharged sex offenses. Indeed, there is no

evidence that any inmate has ever been charged with or

prosecuted for offenses discussed or disclosed in the Kansas

program.

The Kansas SATP is, however, an important component of

Kansas’s efforts to rehabilitate convicted sex offenders, both

for their own benefit and for the protection of the public.

Mental health professionals agree that acceptance of

responsibility is a critical component of an effective treatment

program. Thus, effective treatment is the primary justification

for the Kansas SATP requirement, and that purpose is

unrelated to any criminal investigative or prosecutorial

purposes.

It is common—and in fact essential—that prison

administrators utilize incentives to rehabilitate and manage

inmate populations. Changing or withholding prison

privileges in which an inmate has no constitutionally protected

liberty interest, or subjecting an inmate to prison conditions

that are not atypical, generally cannot violate the Constitution.

Sandin v. Conner, 515 U.S. 472 (1995). There is nothing

arbitrary or irrational about Kansas prison admuinistrators

12

giving convicted sex offenders the choice of meaningful

participation in a treatment program or the withholding of

certain privileges. Thus, the choice presented to inmate Lile

in this case does not amount to “compulsion” under the Fifth

Amendment.

This Court’s recent decisions suggest a bright-line rule for

determining what amounts to unconstitutional “compulsion”

in the prison context. Where, as here, (1) the inmate’s

sentence has not been increased, (2) he has not been subjected

to atypical prison conditions, and (3) prison officials have not

acted arbitrarily or irrationally, the State cannot have crossed

that constitutional line. Indeed, this Court has held that neither

(1) the threat of a reduced opportunity for clemency, Ohio

Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998), (2) the

threat of revocation of parole, Minnesota v. Murphy, 465 U.S.

420 (1984), nor (3) the threat of adverse inferences being

drawn at a prison disciplinary hearing, Baxter v. Palmigiano,

425 US. 308 (1976), amount to _ unconstitutional

“compulsion.”

If there is no unconstitutional “compulsion,” then there is

no reason the State must immunize all statements that inmates

make while participating in the SATP. Nor, absent any Fifth

Amendment violation, is there any reason to engage in a

balancing of interests under Turner v. Safley, 482 U.S. 78

(1987). Turner does, however, stand for the fundamental

proposition that federal courts must pay considerable

deference to state prison regulations, particularly those which

serve rehabilitative and safety purposes.

Moreover, the Turner balancing analysis here favors

upholding the Kansas IMPP approach to an inmate’s refusal to

accept responsibility in the SATP. The State has a legitimate

interest in making sure that inmates engage in meaningful

treatment programs. The State also has a legitimate interest in

the potential prosecution and punishment of those who have

committed unreported sexual offenses, especially those

13

involving child victims. Although Kansas has yet to charge or

prosecute even a single inmate as a result of participation in

the SATP, the Constitution should not force the State to

choose between completely immunizing the participants in the

SATP, or perhaps abandoning the SATP altogether.

ARGUMENT

I. There Is No Unconstitutional Compulsion In This

Prison Case

The Fifth Amendment provides that no person “shall be

compelled in any criminal case to be a witness against

himself.” U.S. Const. amend. V. “The [A]mendment speaks

of compulsion,” United States v. Monia, 317 U.S. 424, 427

(1943), and thus “t]he Court has held repeatedly that the Fifth

Amendment is limited to prohibiting the use of ‘physical or

moral compulsion’ exerted on the person asserting the

privilege.” Fisher v. United States, 425 U.S. 391, 397 (1976).

Indeed, “[t]he Constitution does not prohibit every element

which influences a [person] to make incriminating admissions.

* ** The constitutional guarantee is only that the witness be

not compelled to give self-incriminating testimony.” United

States v. Washington, 431 U.S. 181, 187-88 (1977) (emphasis

added).

As a result, the “criminal process, like the rest of the legal

system, is replete with situations requiring ‘the making of

difficult judgments’ as to which course to follow. Although a

defendant may have a nght, even of constitutional dimensions,

to follow whichever course he chooses, the Constitution does

not by that token always forbid requiring him to choose.”

McGautha v. California, 402 U.S. 183, 213 (1971) (citation

omitted).°

* For this reason, the Court repeatedly has held that plea bargaining does

not violate the Fifth Amendment, even though criminal defendants may

feel considerable pressure to admit guilt in order to obtain more lenient

14

The threshold question, then, is whether inmate Lile has

been subjected to unconstitutional “compulsion” intended to

force him-to waive his Fifth Amendment rights and

incriminate himself. That inquiry necessarily must take into

account the context in which inmate Lile’s claim arises: he is

a convicted, incarcerated sex offender asserting the privilege

in order to avoid having to comply with an indisputably valid,

prison treatment program requirement. Importantly, inmate

Lile does not come to this Court as either a free citizen nor an

innocent man, and that distinguishes his situation from

virtually all of the cases on which he may rely in this Court.

There is no suggestion in this case that government officials

would subject inmate Lile to physical or mental abuse or other

mistreatment in order to force a “confession” from him. Nor

is there any suggestion that the acceptance of responsibility

requirement of the Kansas SATP is a subterfuge for obtaining

incriminating evidence against inmates as part of ongoing

criminal investigations or in preparation for possible future

prosecutions. Indeed, there is no dispute that acceptance of

responsibility is critical to any hope of successful treatment for

sex offenders such as Lile. See, e.g., J.A. 107 (uncontroverted

testimony of sex offender therapist Barbara Owens that “{a]

person with sexual offending behavior needs to take

responsibility for that sexual offending behavior and be

accountable for those offensive behaviors”).

Thus, as demonstrated below, the circumstances presented

here simply do not raise “the evils at which [the Fifth

Amendment privilege] was to strike.” Michigan v. Tucker,

417 U.S. 433, 440 (1974).

treatment. See, e.g., Brady v. United States, 397 U.S. 742, 751 (1970);

Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978); Corbitt v. New Jersey,

439 U.S. 212, 218-19 (1978).

15

A. The Touchstone For Unconstitutional Compulsion

In The Prison Setting Is The Imposition Of Atypical

Hardships

1. Atypical Hardships And “Compulsion.” \n Sandin v.

Conner, 515 U.S. 472, 484 (1995), this Court held that prison

officials could place a prisoner in disciplinary segregation for

thirty days without providing procedural due process because

such segregation did not impose an “atypical and significant

hardship on the inmate in relation to the ordinary incidents of

prison life.” See also Meachum v. Fano, 427 U.S. 215, 228

(1976) (noting that absent some state-created nght, “prison

officials have discretion to transfer [prisoners] for whatever

reason or for no reason at all’). In other words, when an

inmate has no constitutionally protected liberty interest in a

particular housing level, the Constitution generally cannot be

violated when that housing level is changed.

Surprisingly, the Tenth Circuit in this case found

compulsion in a reduction of privileges to which that court

acknowledged inmate Lile had no constitutional or statutory

right, and in which he had no protected liberty interest of any

kind. See Pet. App. 13a-14a (“{A]n inmate’s prison

classification ordinarily does not deprive him of liberty(]

because he is not entitled to a particular degree of liberty in

prison”) (quoting Templeman v. Gunter, 16 F.3d 367, 369

(10th Cir. 1994)). In doing so, the Tenth Circuit opined that

“nowhere in the relevant jurisprudence does the Supreme

Court even hint that an individual attempting to show a

violation of his Fifth Amendment privilege must have a

protected liberty interest for compulsion to occur.” Pet. App.

14a. Notably, however, the Tenth Circuit could not cite a

single case from any court (other than the district court below)

16

finding compulsion in the prison setting absent the imposition

of atypical hardships.‘

The Tenth Circuit pointed to this Court’s recent decision in

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

(1998), as an example of a Fifth Amendment “compulsion”

case in the prison setting in which this Court did not apply an

“atypical hardship” analysis. However, Woodard did not

involve a challenge to prison regulations in the prison setting

but, rather, a challenge to a clemency procedure that operated

outside prison and which had nothing to do with the

management of inmates. Moreover, in Woodard this Court

stated that, “[i]n our opinion, the procedures of the Authority

do not under any view violate the Fifth Amendment privilege.”

Id. at 286 (emphasis added). Thus, the fact that this Court did

not engage in an atypical hardships/liberty interest analysis in

Woodard—when the claim did not involve prison regulations

or a prison setting and this Court found no Fifth Amendment

violation under any view of that provision—gives no support

to the Tenth Circuit’s assertion that compulsion may be found

in the prison setting absent the imposition of atypical

hardships.

The Tenth Circuit also pointed to other cases that it opined

stand for the proposition that “Supreme Court precedent

allows that a prisoner’s confinement could violate the

constitution even if it did not implicate a liberty interest or

violate due process.” Pet. App. 14a-15a. But this adds

nothing to the analysis here because, as this Court

acknowledged in Sandin:

* Cf McMorrow v. Little, 109 F.3d 432, 436 (8th Cir. 1997) (“[P]rison

officials may constitutionally deny benefits to a prisoner who, by invoking

his privilege against self-incrimination, refuses to make statements

necessary for his rehabilitation, as long as their denial is based on the

prisoner’s refusal to participate in his rehabilitation and not his invocation

of his privilege”).

17

Prisoners . . . , of course, retain other protection from

arbitrary state action even within the expected conditions of

confinement. They may invoke the First and Eighth

Amendments and the Equal Protection Clause of the

Fourteenth Amendment where appropriate, and may draw

upon internal prison grievance procedures and state judicial

review where available. _

515 U.S. at 487 n.11.

Fundamentally, the issue in this case is whether

unconstitutional “compulsion” can result from the normal

incidents of prison life. There is no dispute here that (1) there

has been no increase in inmate Lile's sentence and (2) none of

the prison conditions which he would experience as a result of

his refusal to participate in the SATP would be atypical

hardships.

Although the Tenth Circuit cited no cases actually finding

compulsion in the prison setting absent the imposition of

atypical hardships, it of course had to acknowledge some

prison cases that quite naturally linked unconstitutional

compulsion to the imposition of such hardships. See Pet. App.

16a-17a. Importantly, the Kansas Supreme Court—which is

the ultimate arbiter of Kansas law and which is very familiar

with the Kansas prison system—previously addressed the

atypical hardship issue and expressly rejected the inmate’s

argument as follows:

The housing assignment given to an inmate, his or her

custody classification, granting of parole, spending

limitations at a canteen, regulation of visiting hours,

withholding of good time awards, and regulation of other

daily activities which are not atypical and do not pose a

significant hardship within a prison, do not involve a liberty

interest or violate the defendant’s Fifth Amendment nght by

compelling him to incriminate himself and participate in

SATP.

18

Bankes v. Simmons, 963 P.2d 412, 420 (Kan. 1998). The

Tenth Circuit unconvincingly attempted to distinguish Bankes

by opining that “[w]hile we do not necessarily disagree with

the Kansas Supreme Court’s determination . . . our holding

instructs that the liberty analysis should not be part of a Fifth

Amendment privilege case.” Pet. App. 17a n.9.

To reach its erroneous conclusion in this case, the Tenth

Circuit also had to ignore its own precedent. In Chambers v.

Bachicha, 39 F.3d 1191, 1994 WL 596702 (10th Cir. 1994),

that court stated that, “[a}]ppellant has no right to earned time.

The fact that prison officials refuse to confer a portion of the

potential monthly earned time merely constitutes the denial of

a privilege, and is thus not a compulsion to testify for purposes

of the Fifth Amendment.” /d. at *3. The Tenth Circuit in this

case Clearly recognized the implications of Chambers, but it

avoided the consequences only by relying on the fact that

Chambers was unpublished: “To the extent that Chambers

may be interpreted as a rule that compulsion can occur only

where one is forced to forgo a constitutional right or a liberty

interest, we are not bound to follow it here.” Pet. App. 16a

n.8.

The Tenth Circuit had no answer to the reasoning of

Chambers. But the Tenth Circuit correctly decided Chambers,

not Lile. Since by definition there is no constitutional right to

prison privileges, inmate Lile must meet the burden of proving

that he deserves a more favorable security classification or

housing assignment, something he has failed to do. See United

States v. Rylander, 460 U.S. 752, 758 (1983) (noting that

allowing silence to suffice as affirmation that one deserves a

benefit, “would convert the privilege from the shield against

compulsory self-incrimination which it was intended to be into

a sword whereby a claimant asserting the privilege would be

freed from adducing proof in support of a burden which would

otherwise have been his’).

19

2. The “Penalty” Analysis. Ultimately, the Tenth Circuit

characterized the application of the IMPP regulation here as a

penalty. Pet. App. 24a. But this was wrong. A long line of

cases hold that the Fifth Amendment is not violated when a

person’s assertion of the privilege prevents him from

establishing his entitlement to a government benefit. See, e.g.,

Jenkins v. Anderson, 447 U.S. 231, 236 (1980) (“(T]he

Constitution does not forbid ‘every government-imposed

choice in the criminal process that has the effect of

discouraging the exercise of constitutional rights”) (quoting

Chaffin v. Stynchcombe, 412 U.S. 17, 30 (1973)); Orloff v.

Willoughby, 345 U.S. 83, 91 (1953) (“No one . . . questions or

doubts [petitioner’s] right to withhold facts about himself on

this ground. No one believes he can be punished for doing so.

But the question is whether he can at the same time take the

position that to tell the truth about himself might incriminate

him and that even so the President must appoint him to a post

of honor and trust. We have no hesitation in answering that

question ‘No.’”). The withholding of prison privileges—to

which an inmate has neither a statutory nor constitutional

entitlement—does not amount to a “penalty” for constitutional

purposes.

The Tenth Circuit also tried to buttress its “Sandin analysis”

by listing a number of this Court’s cases finding compulsion

in various penalties, “none of which are explicitly

characterized as deprivations of protected liberty interests.”

Pet. App. 15a-16a. These so-called “penalty cases” are not

without their critics: “Nothing in the historical development of

the privilege suggests that threatened loss of employment was

the kind of compulsion against which the amendment aimed

to protect; the ‘compulsions’ of concern to the framers were

torture, bullying and imprisonment for contempt.” Henry J.

Friendly, The Fifth Amendment Tomorrow: The Case for

Constitutional Change, 37 U. Cin. L. Rev. 671, 707 (1968);

see also Leonard W. Levy, History and Judicial History: The

Case of Fifth Amendment, in Constitutional Opinions: Aspects

20

of the Bill of Rights 193, 208 (1986) (“Decisions like . . .

Garrity v. New Jersey (1967) . . . draw no clear support from

the past’’).

The Court should not extend the penalty cases—with their

questionable historical basis, see also Part I.C. below—to

justify a finding of compulsion in this prison setting. Rather,

here constitutional “compulsion” should not be found absent

the imposition of atypical hardships on an inmate. To the best

of Kansas’s knowledge, the Court has never applied these

“penalty” cases to find a Fifth Amendment violation in the

prison setting, and it should not do so in this case.

3. The Constitutional Rule. The fact that the Tenth Circuit

could find compulsion in this case highlights the need for a

bright line rule. The Court’s previous decisions suggest such

a rule: when (1) an inmate’s sentence has not been increased,

(2) he has not been subjected to atypical prison conditions, and

(3) prison officials have not acted arbitrarily or irrationally

toward the inmate, there cannot be unconstitutional

“compulsion” for Fifth Amendment purposes.

Prison administrators need such clear guidance in order to

implement effective, incentive-based systems of rehabilitation.

A rule allowing prison administrators to utilize reasonably the

naturally occurring incidents of prison life to encourage

socially constructive behavior and rehabilitate inmates is

consistent with this Court’s precedents—and it is plain

common sense.

An inmate comes to prison with no right to any particular

housing level or security classification. Meachum v. Fano,

427 US. at 224 (“The initial decision to assign the convict to

a particular institution is not subject to audit under the Due

Process Clause, although the degree of confinement in one

prison may be quite different from that in another.”’); Pet. App.

13a-14a (““[AJn inmate’s prison classification ordinarily does

not deprive him of liberty[ ] because he is not entitled to a

-

21

79

particular degree of liberty in prison’”’) (quoting Templeman v.

Gunter, 16 F.3d 367, 369 (10th Cir. 1994)); Lile v. Simmons,

929 P.2d 171, 173 (Kan. Ct. App. 1996) (“Kansas law does

not create a constitutionally cognizable liberty interest in a

prison inmate’s movement from a higher to a lesser security

status”) (cited approvingly in Bankes v. Simmons, 963 P.2d

412, 420 (Kan. 1998)).

Prison administrators thus have constitutional leeway to

grant more favorable housing and other privileges as a means

of encouraging rehabilitation and preparing inmates for

release. Indeed, it might be a dereliction of their duty not to do

so. See Pell v. Procunier, 417 U.S. 817, 823 (1974) (“another

paramount objective of the corrections system is the

rehabilitation of those committed to its custody”).

Likewise, prison administrators should be free to withhold

privileges previously bestowed in order to implement a

rehabilitative incentive plan, unless doing so deprives an

inmate of some type of liberty interest. Hewitt v. Helms, 459

U.S. 460, 468 (1983) (“It is plain that the transfer of an inmate

to less amenable and more restrictive quarters for nonpunitive

reasons is well within the terms of confinement ordinarily

contemplated by a prison sentence”) (limited in Sandin v.

Connor, 515 U.S. 472, 482 (1995), because its approach did

not provide enough deference to prison officials).

The changes in privileges that inmate Lile faces in this case

serve nonpunitive purposes. The IMPP necessarily recognizes

the fundamental prison management and rehabilitation

proposition that an inmate who refuses to participate in

recommended treatment should not continue to receive the

benefits reserved for those who are actively working to rejoin

society as productive citizens. Those who refuse to atone for

their offenses by participating in required treatment in order to

minimize the risk of reoffending are not being punished for

invoking their Fifth Amendment privilege; they are only

22

experiencing the consequences of their deliberate choice to not

cooperate in their rehabilitation.°

Adding new layers to the Sandin liberty interest/atypical

hardship analysis unnecessarily undermines the goals of

rehabilitating inmates and protecting society.

* This proposition is poignantly illustrated by an exchange between the

warden of Lansing prison, David R. McKune, and one of inmate Lile’s

attorneys, during McKune’s deposition:

Q. Okay. And you’ve talked about a person—an inmate’s decision to

enter into the SATP program and other programs as their choice, is that

correct?

A. Yes.

Q. You refer to it as a choice?

A. Yes.

Q. All right. And that they must deal with the consequences if they

refuse not to choose to enter the program.

A. Correct.

Q. And that’s how you see the incentive level system, correct?

A. Correct.

Q. You'd admit, then, that there’s a price that they have to pay for

making that choice, wouldn’t you?

A. There are consequences of that choice, yes.

Q. Okay. So it’s not a completely free and unfettered choice, is it?

A. Are there any?

Q. But—

A. I mean, there’s consequences to every choice you make in life, and

there are consequences to that choice as well.

J.A. 81-82.

23

B. The Prison Conditions Here Do Not Amount To

Unconstitutional Compulsion Under The Court’s

Cases

1. Fifth Amendment Cases. Several of the Court’s cases

demonstrate that unconstitutional “compulsion” in the prison

setting must be limited to those circumstances involving the

imposition of atypical hardships. indeed, the Court frequently

has refused to find unconstitutional compulsion when

consequences at least as “substantial and potent” as those at

issue here were imposed.

For example, in Ohio Adult Parole Authority. v. Woodard,

523 U.S. at 286, this Court recently held that—consistent with

the Fifth Amendment—a death row inmate could be made to

choose between incriminating himself or having adverse

inferences drawn from his silence at his clemency interview:

Assuming also that the Authority will draw adverse

inferences from respondent’s refusal to answer questions .. .

we do not think that respondent’s testimony at a clemency

interview could be “compelled” within the meaning of the

Fifth Amendment . ... He merely faces a choice quite similar

to the sorts of choices that a criminal defendant must make in

the course of criminal proceedings, none of which has ever

been held to violate the Fifth Amendment.

The Tenth Circuit purported to distinguish Woodard on the

ground that “Mr. Woodard was not being punished for

invoking the Fifth Amendment privilege. Rather, the

clemency interview was voluntary.” Pet. App. 20a-2 1a.

But that reasoning begs the question, which is whether

Woodard had a “voluntary” choice for constitutional purposes.

To say that inmate Lile was “punished” for his silence while

inmate Woodard was not seems backward: while neither

inmate’s actual sentence was changed as a result of his silence,

_ “fijJn Woodard, plaintiff did not face a possible loss of

privileges and benefits, but rather a possible Joss of life.”

24

_ Searcy v. Simmons, 97 F. Supp. 2d 1055, 1059 (D. Kan. 2000)

(emphasis added).° No plausible argument can be made that

inmate Lile faces more serious consequences for his choice

here than inmate Woodard faced in that case.

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

the Court held that the Fifth Amendment was not violated

when a parolee was questioned by his parole officer about

prior criminal activity. In Murphy, the parolee had been

warned that failure to be truthful could result in revocation of

parole. Moreover, the parole officer was actively seeking

incriminating evidence to return the parolee to jail. Even so,

the Court found no constitutional violation.

The Tenth Circuit, however, purported to distinguish

Murphy, opining that, unlike inmate Lile, “Mr. Murphy was

not punished or penalized solely for choosing to remain

silent.” Pet. App. 22a. Of course, in a sense this was true,

because Mr. Murphy did not remain silent—he talked—and

the Court upheld the use of his statements against him.

* See Woodard, 523 U.S. at 293 (Stevens, J., concurring and dissenting

opinion) (“The interest in life that is at stake in this case warrants even

greater protection than the interests in liberty at stake in [the Court’s prior}

cases”); Searcy v. Simmons, 97 F. Supp. 2d at 1059 (“If such a choice is

not sufficient compulsion to make incriminating statements involuntary,

the application of IMPP 11-10l—even in its most severe

application—could hardly be sufficient”); Reed v. McKune, No. 98-3418,

2000 WL 1278488, at *8 (D. Kan. July 17, 2000) (“That the plaintiff's

refusal to take part in the SATP triggers a reduction in incentive level

status does not transform his decision not to participate into an involuntary

one”); Amen-Ra v. Dep't of Defense, 961 F. Supp. 256, 259 (D. Kan.

1997) (describing rehabilitation program as voluntary despite the fact that

“custody elevation, detail changes, and other favorable considerations”

were tied to participation); Russell v. Eaves, 722 F. Supp. 558, 560 (E.D.

Mo. 1989) (finding that inmate was free to “refuse to participate” even

though denial of parole was a consequence); Brooker v. Warden, No. 98-

466-JD, 1999 WL 813893 (D.N.H. Jane 22, 1999) (same).

25

The Tenth Circuit reasoned that Murphy just suffered “the

normal consequences flowing from his confession.” /d. But

this is not a satisfactory distinction. First of all, inmate Lile is

not being punished for his silence; he is facing the normal

consequences of refusing to participate in a valuable

rehabilitation program while in prison. Second, in Murphy,

the state threatened to return Murphy fo prison if he did not

answer all questions put to him by his parole officer.

By comparison, in this case, inmate Lile (a prisoner

currently and for the past almost twenty years), faces only a

transfer to what he considers a less desirable housing

assignment in a section of the prison contiguous to his current

location and the loss of related privileges, such as a personal

television. Moreover, the information that he is refusing to

provide is directly related to his rehabilitation program, and is

sought for a therapeutic purpose. The state is not actively

investigating him with respect to any additional possible

criminal offenses.’

Finally, in Baxter v. Palmigiano, 425 U.S. 308 (1976), the

Court held that negative inferences could be drawn from an

’ The Tenth Circuit also relied on a footnote in Murphy in which the Court

opined that “a state may validly insist on answers to even incriminating

questions . . . as long as it recognizes that the required answers may not be

used in a criminal proceeding.” 465 U.S. at 435 n.7. However, Justice

White, author of the Court’s opinion in Murphy, later cautioned that any

“assumption that this Court’s decision in Minnesota v. Murphy

mandates . . . immunity from prosecution based upon incriminating

statements made to a therapist . . . reflect a possible misunderstanding of

{a State’s}] obligations under the law.” Montana v. Imlay, 506 US. 5, 8

(1992) (White, J., dissenting from dismissal of writ of certiorari as

improvidently granted). Cf McMorrow v. Little, 109 F.3d 432, 436 (8th

Cir. 1997) (“[Minnesota v. Murphy, 465 U.S. 420 (1984)] does not,

however, overrule the Court's earlier cases that state that the government

can penalize someone for refusing to cooperate on government matters,

even when the person does so by invoking his privilege against self-

incrimination”’).

26

inmate’s silence in a prison disciplinary hearing without

violating the Fifth Amendment. The Court reached that

conclusion because “[dJisciplinary proceedings in state

prisons . . . involve the correctional process and important

state interests other than conviction for crime.” /d. at 319. In

Baxter the Court declared that:

It is thus undisputed that an inmate’s silence in and of itself

is msufficient to support an adverse decision by the

Disciplinary Board. In this respect, this case is very

different from the circumstances before the Court in the

Garrity - Lefkowitz decisions, where refusal to submit to

interrogation and to waive Fifth Amendment privilege,

standing alone and without regard to the other evidence,

resulted in loss of employment or opportunity to contract

with the State.

425 US. at 317-18 (referring to Garrity v. New Jersey, 385

U.S. 493 (1967), which held that police officers questioned

concerning the alleged fixing of traffic tickets in their

boroughs could not be threatened with loss of employment for

refusing to answer, and Lefkowitz v. Turley, 414 U.S. 70

(1973), which held that a statute precluding the awarding of a

government contract to any person refusing to answer

questions concerning state contracts violated the Fifth

Amendment).

The Tenth Circuit, however, purported to distinguish Baxter

too, opining that “[h]ere, unlike in Baxter, Plaintiff's refusal

to submit to the interrogation . . . standing alone, would

certainly result in the [adverse consequences].” Pet. App. 19a.

The Tenth Circuit’s analysis, however, ignores that it is not

inmate Lile’s silence alone, but rather (1) his conviction of a

violent, sexual offense, (2) plus a legitimate recommendation

for participation in sex offender treatment in prison, (3) plus

his refusal to participate in that treatment, which results in the

withholding of prison privileges. Thus, the Tenth Circuit’s

———

27

efforts to distinguish cases notwithstanding, this case falls

within the Woodard/Murphy/Baxter line of cases.*

2. Ex Post Facto Cases. Because the Tenth Circuit

appears to have rested its finding of “compulsion” in this case

on characterizing the changing or withholding of prison

privileges as the imposition of an impermissible “penalty” or

“punishment” on inmate Lile, the issue here is similar to the

issue raised in ex post facto cases.

For ex post facto purposes, similar to the Fifth Amendment

compulsion inquiry, the critical question is whether the prison

regulation “increases the penalty by which a crime is

punishable.” California Dep't of Corrections v. Morales, 514

U.S. 499, 506 (1995). And this Court has previously equated

the notion of “punishment” under various constitutional

provisions. See, e.g., Kansas v. Hendricks, 521 U.S. 346, 369

(1997) (“Our conclusion that the Act is nonpunitive thus

removes an essential prerequisite for both Hendricks’ double

jeopardy and ex post facto claims”).

The Kansas SATP already has withstood ex post facto

challenges. See, e.g., Reed v. McKune, No. 98-3418, 2000 WL

1278488, *6 (D. Kan. July 17, 2000) (finding “no evidence .. .

that plaintiff's punishment has been increased”); Johnston v.

Simmons, No. 97-3354, 1999 U.S. Dist. LEXIS 21891, *8-9

(D. Kan. May 26, 1999) (“While his refusal has resulted in the

* See McMorrow v. Little, 109 F.3d at 436 (“[P)rison officials may

constitutionally deny benefits to a pnsoner who, by invoking his privilege

against self-incrimination, refuses to make statements necessary for his

rehabilitation, as long as their denial is based on the prisoner’s refusal to

participate in his rehabilitation and not his invocation of his privilege”); cf

Asherman v. Meachum, 957 F.2d 978, 982 (2d Cir. 1992) (“The fact that

a public employee might face the unpleasant choice of surrendering his

silence or losing his job is no bar to an adverse consequence so long as the

consequence is imposed for failure to answer a relevant inquiry and not for

refusal to give up a constitutional nght”).

28

loss of privileges under IMPP 11-101, this loss is not an ex

post facto violation. Plaintiff does not allege that IMPP 11-

101 affects his eligibility for parole. His sentence is therefore

no different than it was before defendant applied IMPP 11-

101.”) (internal citations omitted); Johnston v. Simmons, 45 F.

Supp. 2d 1220, 1224 (D. Kan. 1999) (“Courts have found that

the portions of IMPP 11-101 which allow the reduction in

incentive level are not ex post facto violations because they do

not increase an inmate’s punishment’’); Nemecheck v. McKune,

941 P.2d 952, 954 (Kan. Ct. App. 1997) (“Reasonable

application of a prison security classification system does not

amount to increased punishment . . . .”).

In addition, there are numerous cases finding no ex post

facto violation in similar situations. See, e.g., Dominique v.

Weld, 73 F.3d 1156, 1163 (ist Cir. 1996) (“It can be argued

that the regulation increases the penalty because it subjects

Dominique to a different and stricter prison regime: unless and

until he successfully completes the prescribed treatment

program and admits to a crime he continually has denied, he

must remain confined at no less than a medium security

facility and remain ineligible for privileges associated with

lower security imprisonment. We conclude, however, that this

change in the conditions determining the nature of his

confinement while serving his sentence was an allowed

alteration in the prevailing ‘legal regime’ rather than an

‘increased penalty’ for ex post facto purposes .... The change

does not affect the length of Dominique’s sentence or his

parole options.”’); see also Neal v. Shimoda, 131 F.3d 818, 827

(9th Cir. 1997) (“[T]he treatment program is intended to be

rehabilitative, not retributive”); Brooker v. Warden, No. 98-

466, 1999 WL 813893, *7 (D.N.H. June 22, 1999) (“The

addition of sexual offender programming did not necessarily

lengthen the time that an inmate must spend in prison.

Instead, its effect depends entirely on the prisoner’s experience

in the program.”); Russell v. Eaves, 722 F. Supp. 558, 560

(E.D. Mo. 1989) (“[Missouri Sexual Offender Program] is not

29

penal in nature; its purpose is rehabilitative. It adds no further

sentence to that which has already been imposed upon the sex

offender.”’).

C. The Tenth Circuit’s Decision Is Contrary To The

History And Origins Of The Fifth Amendment

The Fifth Amendment provides that no person “shall be

compelled in any criminal case to be a witness against

himself.” U.S. Const. amend. V. In this case, the Tenth

Circuit correctly noted that the amendment’s language is

“somewhat narrow.” Pet. App. Sa. That court also opined that

this Court has “interpreted [the amendment] broadly.” /d.

(referring to Jn re Gault, 387 U.S. 1, 50 (1967)). But in so

doing, the Tenth Circuit ignored the limitation imposed by the

very passage it quoted from Gau/t—that the privilege is to be

“broadly applied and generously implemented in accordance

with the teaching of the history of the privilege.” 387 U.S. at

50 (emphasis added). Indeed, the Tenth Circuit engaged in no

historical analysis in this case.

History is particularly important in this context. “[T]he

privilege against self-incrimination is a specific provision of

which it is peculiarly true that ‘a page of history is worth a

volume of logic.” Ullmann v. United States, 350 U.S. 422,

438 (1956) (quoting N.Y. Trust Co. v. Eisner, 256 U.S. 345,

349 (1921)); see also Leonard W. Levy, Origins of the Fifth

Amendment: The Right Against Self-Incrimination xv (2d ed.,

Macmillan 1986) (1968) (“[T]he courts have assured us, again

and again, that our understanding of the nght against

compulsory self-incrimination is dependent upon history”).

For purposes of this case, it is important to recognize that

“the development of [the Fifth Amendment] protection was in

part a response to certain historical practices, such as

ecclesiastical inquisitions and the proceedings of the Star

Chamber.” Andresen v. Maryland, 427 U.S. 463, 470 (1976).

30

When brought before the Star Chamber, accused individuals

could either take an oath to answer all questions truthfully or

be whipped. Mark Berger, Taking the Fifth: The Supreme

Court and the Privilege Against Self-Incrimination 17 (1980).

Thus, a central purpose of the privilege is to ensure that

government “may not be coercion prove a charge against an

accused out of his own mouth.” Malloy v. Hogan, 378 U.S. 1,

7-8 (1964). And it is certainly true that the Court “has thought

the privilege necessary to prevent any ‘recurrence of the

Inquisition and the Star Chamber, even if not in their stark

brutality.” Couch v. United States, 409 U.S. 322, 327 (1973)

(quoting Ul/imann, 350 U.S. at 428).

But, historically, the privilege protected individuals from

government efforts to force them to assist in the investigation

and prosecution of criminal charges against them; it did not

forbid the denial of government benefits or privileges to those

who chose to remain silent. In this prison case, the words of

Justice Stewart remind of the narrower scope of consequences

historically deemed “compuls‘on”:

When a suspect was brought before the Court of High

Commission or the Star Chamber, he was commanded to

answer whatever was asked of him, and subjected to a

farreaching and deeply probing inquiry in an effort to ferret

out some unknown and frequently unsuspected crime. He

declined to answer on pain of incarceration, banishment, or

mutilation. And if he spoke falsely, he was subject to

further punishment. Faced with this formidable array of

alternatives, his decision to speak was unquestionably

coerced.

Griffin v. California, 380 U.S. 609, 620 (1965) (Stewart, J.,

dissenting).

Withholding from inmate Lile—because of his refusal to

engage in a therapeutic treatment program—pnivileges such as

a personal television or greater access to the gym does not

31

even begin to approach the consequences of “incarceration,

banishment, or mutilation.” Indeed, the full consequences

inmate Lile faces for refusing to participate in sex offender

treatment are as follows:

Specifically, he [inmate Lile] would lose his personal TV;

he would have limited access to prison organizations and

activities and would be unable to participate in the IMPP

[the prison’s Internal Management Policies and Procedures

programs]; he would have limited access to the gym and

yard area; there would be a substantial reduction in the

amount of money he could spend in the canteen per pay

period, from $140 per payroll at Level III to $20 per payroll

at Level I; he would receive a reduction in pay and intake

property; and he would have substantially restricted

visitation privileges.

Pet. App. 10a.

Importantly, inmate Lile would not be denied parole nor

lose any good time credits (nor the opportunity to earn such

credits) because he refused to participate in the SATP. /d. at

10a-13a. Thus, his sentence would remain unchanged,

notwithstanding his refusal to participate in the SATP.

None of these consequences are anything other than the

normal incidents of prison life; as such, their imposition is not

unconstitutional compulsion. See Sandin v. Conner, 515 U.S.

at 484 (holding that prison officials could place a prisoner in

disciplinary segregation for thirty days without providing

procedural due process because such segregation did not

impose an “atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life”); Meachum v.

Fano, 427 US. at 228 rehearing denied (noting that absent

some state-created right, “prison officials have discretion to

transfer [prisoners] for whatever reason or for no reason at

all’).

32

“In its analysis of the adverse consequenc.s facing inmate _

Lile, the Tenth Circuit twice pointed out that prison officials

noted “how much more dangerous maximum security is.” Pet.

App. 18a. But that proposition is both erroneous as a factual

matter and irrelevant as a legal matter. First, the Lansing

prison warden testified repeatedly in his deposition that he

does not consider the maximum security area to be inherently

more dangerous than the medium security area. J.A. 76-81.

Moreover, security is a function of both location within the

prison and the inmate’s custody classification. /d. at 59, 102-

04. There are medium security inmates located in the

maximum security area of the prison (and minimum security

inmates located in the medium security area) for a variety of

reasons, just as there are first degree murderers located in the

minimum security areas. /d. at 60, 62-63, 102-04.

Second, as explained above, only the imposition of atypical

hardships can possibly amount to _ unconstitutional

“compulsion” in the prison setting. In this case, there is not a

shred of evidence that any of the conditions existing in

Lansing’s maximum security area—considered individually or

in combination—are atypical hardships. Thus, because the

conditions in the maximum security area of the Kansas prison

are normal incidents of prison life, an inmate cannot complain

of spending part or all of his incarceration there. The history

of the Fifth Amendment does not suggest otherwise.

Il. State Prison Regulations That Serve Rehabilitative

Purposes Are Entitled To Deference From The

Federal Courts

A. The Tenth Circuit’s Decision Fails To Accord The

Proper Respect To State Prison Regulations

This Court has emphasized that, in the prison context,

“federal courts ought to afford appropriate deference and

flexibility to state officials trying to manage a volatile

environment.” Sandin v. Conner, 515 U.S. at 482. This is due

~ 33

in no small part to the fact that, while “prisoners do not shed

all constitutional rights at the prison gate, .. . ‘[ljawful

incarceration brings about the necessary withdrawal or

limitation of many privileges and rights, a retraction justified

by the considerations underlying our penal system.”” Jd. at

485 (quoting Jonesy. North Carolina Prisoners’ Labor Union,

433 U.S. 119, 125 (1977)) (internal citation omitted); see also

O’Lone v. Estate of Shabazz, 482 U.S. 342, 353 (1987) (“We

take this opportunity to reaffirm our refusal, even where

claims are made under the First Amendment, to ‘substitute our

judgment on . . . difficult and sensitive matters of institutional

administration. ””) (quoting Block v. Rutherford, 468 U.S. 576,

588 (1984)). ae

The significance of the prison setting in this case cannot be

overstated. The impact of setting on the application of the

privilege is present in the Fifth Amendment itself, which

prohibits compulsion only “in any criminal case.” U.S. Const.

amend. V (emphasis added). Although the notion of a

“criminal case”’ sometimes has been defined broadly, see, e.g.,

Lefkowitz v. Turley, 414 U.S. 70, 77 (1973) (stating that the

privilege extends to any “proceeding, civil or criminal, formal

or informal, where answers might incriminate [the individual]

in future criminal proceedings”), setting and context are

central to the inquiry:

When confronted with a Self-Incrimination Clause

challenge involving a prison sex offender treatment

program, a court should look first to other similar cases

involving prisoners. This is the best approach for four

reasons: first, as opposed to other settings, the prison setting

is usually devoid of an ongoing criminal investigation;’

* “Historically, the privilege sprang from an abhorrence of governmental

assault against the single individual accused of crime and the temptation

on the part of the State to resort to the expedient of compelling

incriminating evidence from one’s-own mouth.” Couch, 409 U.S. at 327;

34

second, prison administrative regulations have historically

been given deference not accorded in other settings; third,

rehabilitation constitutes a legitimate government interest

in the penal setting;'® fourth, what constitutes a penalty

outside prison does not automatically constitute a penalty in

prison.

Stefan J. Padfield, Comment, Self-Incrimination and

Acceptance of Responsibility in Prison Sex Offender

Treatment Programs, 49 U. Kan. L. Rev. 487, 506 (2001).

Thus, even if the Court were to conclude that the

consequences inmate Lile faces in this case might amount to

unconstitutional compulsion if imposed on a free citizen, the

result is different in prison. “In the prison setting, refusal to

verbalize acceptance of responsibility in sex offender

treatment programs has been upheld as a constitutionally valid

reason to deny all of the following: admission to a ‘Family

Reunion Program,’ work release[,] less restrictive

confinement, custody elevation[,] detail changes, good time

credits, and parole.” Padfield, 49 U. Kan. L. Rev. at 509

(citing cases).

see also, Lefkowitz v. Turley, 414 U.S. at 77 (“The object of the

Amendment ‘was to insure that a person should not be compelled, when

acting as a witness in any investigation, to give testimony which might tend

to show that he himself had committed a crime.””) (quoting Counselman

v. Hitchcock, 142 U.S. 547, 562 (1892)).

'° The Court has said that “sine most offenders will eventually return to

society, another paramount objective of the corrections system is the

rehabilitation of those committed to its custody .... It is in light of these

legitimate penal objectives that a court must assess challenges to prison

regulations based on asserted constitutional nights of prisoners.” Pell v.

Procunier, 417 U.S. at 823.

35

B. The Tenth Circuit Incorrectly Relied On The

Turner v. Safley, 482 U.S. 78 (1987), Balancing Test

This Court has repeatedly emphasized that prison

regulations are accorded a particular deference. See, e.g.,

Turner v. Safley, 482 U.S. 78 (1987); O'Lone v. Estate of

Shabazz, 482 U.S. 342 (1987); Jones v. North Carolina

Prisoners’ Labor Union, 433 U.S. 119 (1977). Thus, in

Turner, the Court held that “when a prison regulation impinges

on inmates’ constitutional nghts, the regulation is valid if it is

reasonably related to legitimate penological interests. In our

view, such a standard is necessary if ‘prison administrators . . .

and not the courts, [are] to make the difficult judgments

concerning institutional operations.” 482 U.S. at 89 (quoting

Jones, 433 U.S. at 126).

The Court in Turner set out four “factors that are relevant

in determining the reasonableness of the regulation at issue”:

(1) whether there is a valid, rational connection between the

prison regulation or practice and a legitimate governmental

interest; (2) whether the regulation or practice allows inmates

an alternative means of exercising the subject constitutional

right; (3) the impact of accommodation of the asserted nght on

guards, other inmates, and the allocation of resources

generally; and (4) the absence of ready alternatives to the

regulation or practice. /d. at 89-91.

The Tenth Circuit conceded that some deference was

appropriate here, and it purported to accord deference via the

Turner balancing test. Pet. App. 25a-32a. Unlike this Court

in Sandin v. Conner, however, in which the deference to

prison regulations resulted in finding no constitutional

violation at all, the Tenth Circuit considered deference in this

case only after concluding that a constitutional violation had

occurred. Thus, the Tenth Circuit opined that its view of the

Turner “balancing differs from Defendants’ argument that

government interest is significant in determining whether the

Fifth Amendment has been violated because we apply the

36

balancing analysis only after a constitutional violation has

been found.” Pet. App. 26a n.12 (emphasis added). The Tenth

Circuit then concluded that application of the Turner balancing

test “easily” weighed in favor of inmate Lile. /d. at 32a.

The Tenth Circuit’s application of the Turner balancing test

in this case raises several questions: (1) Does Turner apply at

all in Fifth Amendment cases? (2) If Turner applies, does the

Court give deference to the Kansas prison regulations in the

first instance in determining whether there is a constitutional

violation at all, or only after finding a constitutional violation

to determine whether the regulation is nonetheless

permissible? (3) If Turner applies here, are all four factors

appropriate to consider? The state addresses these questions

in turn.

1. Does Turner Apply To Fifth Amendment Claims?

It may be inappropriate to apply the Turner factors in the Fifth

Amendment context. Turner involved claims under the First

Amendment and the constitutional right to marry. Lower

courts, including the Tenth Circuit, have recognized that

application of the Turner factors to other constitutional claims

may be inappropriate or problematic. See, e.g., Michenfelder

v. Sumner, 860 F.2d 328, 331 n.1 (9th Cir. 1988) (noting that

the second Turner factor is “much more meaningful in the first

amendment context than the fourth, where the right is to be

free from a particular wrong”); Dunn v. White, 880 F.2d 1188,

1194 n3 (10th Cir. 1989) (“The Turner test appears

analytically to have only limited applicability to a prisoner’s

fourth amendment challenge’’).

Moreover, it does not appear that the Court has ever applied

Turner to a case involving the Fifth Amendment. Rather, what

Turner represents is the fundamental proposition that prison

regulations that arguably impinge on constitutional rights that

free citizens would enjoy are not necessarily unconstitutional

in the prison context. Indeed, Turner essentially is an

application of the general principle of deferential review in the

37

particular context of prison regulations affecting First

Amendment interests. See, e.g., Foote v. Spiegel, 995 F. Supp.

1347, 1349 n.2 (D. Utah 1998) (“[T]}his court determines that

the Supreme Court’s decision in Washington |v. Harper, 494

U.S. 210 (1990)] only commands use of the Turner ‘standard

of review’ (i.e., reasonableness instead of strict scrutiny) when

assessing prisoners’ or detainees’ constitutional claims; it does

not command the use of the Turner factors themselves’’).

Thus, all that Turner calls for in this context is that the

regulation be reasonably related to the governmental interest

at stake. Holding inmates accountable for their

rehabilitation—which in the case of sex offenders demands

full acceptance of responsibility—is reasonably related to the

government’s interests in rehabilitation and safety.

Or, to put it another way, the central and decisive inquiry in

this case is whether—taking into account the prison setting

and the purposes of the Kansas SATP—inmate Lile is being

_ compelled to incriminate himself? Effectively, the deference

to prison regulations that is inherent in Turner is subsumed in

the “compulsion” inquiry, which must by necessity take

careful account of the setting and context in which the Fifth

Amendment claim arises.

2. Does The Court Give Deference Before Or After

Finding A Constitutional Violation? In neither Turner itself

nor O'Lone v. Estate of Shabazz, did this Court separate the

finding of a constitutional violation from the required

deference in First Amendment cases. Subsequently, in Sandin

v. Connor, 515 U.S. at 482-83, a procedural due process case,

this Court once again highlighted the historical deference

given to state prison officials, but did so completely

independent of any reference to the Turner balancing test.

Thus, had the Tenth Circuit properly accorded the Kansas

prison regulations the required deference in determining

whether there is a constitutional violation at all, that court

38

would never have reached the Turner balancing test. See, e.g.,

Gilmore v. McKune, 940 P.2d 78, 81 (Kan. Ct. App. 1997)

(“Since courts should refrain from reviewing prison officials’

decisions regarding [the transfer of inmates refusing to

participate in sex offender treatment], the district court and

this court could have summarily dismissed on that basis’’)

(citing Sandin). Instead, the Tenth Circuit incorrectly found a

Fifth Amendment violation without first “giving appropriate

deference to the decisions of prison administrators.” Jones,

433 US. at 125.

It seems illogical to say—as the Tenth Circuit essentially

did—that a prison regulation violates an inmate’s

constitutional rights but nonetheless may be valid. What

Turner really stands for, and what this Court’s cases

consistently recognize, is that prison inmates do not

necessarily have the same constitutional freedoms as free

citizens. Prison regulations that are reasonably related to

legitimate penological objectives generally do not violate the

Constitution. Ultimately, as many lower courts have

recognized, Turner adopts a deferential standard of review for

inmates’ claims of constitutional violations.

3. If Turner Applies, In What Form? Even were this

Court to conclude that the Turner balancing test applies in

some form in Fifth Amendment cases, the Tenth Circuit’s

application of Turner in this case was improper. First,

although the Tenth Circuit acknowledged that “[t}here is a

rational connection between the policy of having prisoners

admit responsibility for their offenses and disclose their sexual

history in order to participate in the SATP and the legitimate

governmental interest in rehabilitation of sex offenders,” Pet.

App. 28a, the court devoted only two sentences to discussing

that factor and failed to give it pe mewn weight. Inmate Lile

is a convicted, violent sex offender who was found guilty of

39

rape, aggravated sodomy, and aggravated kidnapping.'' As

such, he is part of a population that poses unique challenges to

prison administrators and society:

The problem of the sex offender is an all too real one.

Nearly 355,000 rapes and sexual assaults were reported in

1995. The American Professional Society on the Abuse of

Children (APSAC) has noted that as many as 10-15% of

boys and 20-25% of girls are victims of sexual misuse prior

to the age of 18. The median age of abuse for boys is 9.9

years; for girls, 9.6. Eighty percent of psychiatric inpatients

report having experienced some form of sexual abuse.

Many adolescent prostitutes and runaways are victims of

childhood sexual abuse. Most sex offenders have multiple

victims and offend numerous times with the same victim.

Prison populations reflect the problem of the sex offender

in society at large. In some states, as much as one third of

the prison population consists of sexual offenders. Of the

60,285 prisoners serving time in state prisons for crimes

against children, 42,993 of them were incarcerated for rape

and sexual assault, and 25,102 of those had victims under

the age of twelve. Providing treatment for sex offenders

has become recognized as a legitimate state interest.

Without acceptance of responsibility, the key goals of

treatment are stymied. Denial precludes addressing

cognitive distortions, developing empathy for victims,

identifying risk factors that may serve as warning signals,

developing much needed social skills, and examining

deviant sexual arousal. It is, therefore, no wonder that the

"' See Lile v. Simmons, 929 P.2d at 172 (further noting that “in 1983, Lile

was also convicted of attempted aggravated escape from custody”); see

also Lile v. Simmons, No. 00-3172, 2001 U.S. Dist. LEXIS 5518, *5 (D.

Kan. Apr. 20, 2001).

40

United States Department of Justice has identified

admission of responsibility as a basic requirement for

treatment and that the American Bar Association has

concluded that individuals who deny responsibility are not

amenable to treatment .... In addition, the disincentives

for refusing treatment keep offenders active in treatment

long enough to break through their psychological defenses

that would otherwise result in their choice to terminate

treatment before any positive change occurred.

Stefan J. Padfield, Comment, Self-Incrimination and

Acceptance of Responsibility in Prison Sex Offender

Treatment Programs, 49 U. Kan. L. Rev. 487, 496-99 (2001)

(internal citations omitted).

In contrast to its cursory treatment of the state’s interests in

this case, the Tenth Circuit focused on the “obvious, easy

alternative” of granting immunity to inmates participating in

the SATP. Indeed, it appears that the Tenth Circuit actually

rested its ultimate conclusion on this single factor: “Because

granting immunity or privileging statements in no way restricts

the State’s interests in rehabilitation or public safety, we think

the Turner balancing test easily weighs in favor of Plaintiff.”

Pet. App 32a. This ignores that

[because] many sex offenders have multiple victims and

may not be amenable to treatment, society’s safety may

depend on a future prosecution for a past crime. Should

immunity be granted to SATP participants, the burden will

be on the prosecution in any later trial to prove that its

evidence did not come from program disclosures.

49 U. Kan. L. Rev., at 514-15.

: At bottom, even if Turner applies in some form, the Tenth

Circuit failed to properly weigh the interests at stake.

41

C. The Ability To Bestow Or Withhold Correctional

Institution Privileges Is An Extremely Important

Rehabilitation Tool For Prison Administrators

Prison administrators commonly rely upon the granting or

withholding of prison privileges to manage inmate

populations, both for rei.abilitative purposes and to ensure

safety within the prisons. Indeed, such authority is essential to

successful, constructive prison management.

This case highlights the importance of permitting prison

administrators some discretion in developing and

implementing incentive programs. Indeed, as inmate Lile has

amply demonstrated, if the incentives here are not valid, there

is no way Kansas will obtain Lile’s participation in a

meaningful treatment program, unless the State is willing to

sacrifice other interests, such as the possible prosecution of

unknown offenses.'?

The Court previously granted review of a similar Fifth

Amendment issue in a case involving the related context of

probation. At that time, one neutral amicus pointed out the

importance of incentives for effective sex offender treatment:

Denial is a common phenomenon in offender treatment. As

treatment has become more sophisticated, methods for

overcoming denial and encouraging honesty have been

developed. Certain offenders continue to deny the abuse,

however, despite the best efforts of therapists .... Efforts

to provide meaningful offender treatment will be severely

undermined unless offenders can be required to admit the

2 It is worth noting that inmate Lile has been in pnson for almost 20 years.

This makes it highly unlikely that he even could be prosecuted for any

unknown offenses he might now disclose in a treatment program—due to

statutes of limitations—and yet it demonstrates how difficult 1t can be for

prison admunistrators to persuade inmates to take advantage of beneficial

opportunities such as the Kansas SATP.

42

abuse as a precondition to treatment, and unless failure to

admit can lead to termination of treatment and revocation of

probation or parole.

Brief of Amicus Curiae American Professional Society on the

Abuse of Children Supporting Neither Party at 2, 8, in

Montana v. Imlay, No. 91-687; see also Judith V. Becker &

William D. Murphy, What We Know And Do Not Know About

Assessing And Treating Sex Offenders, 4 Psychology, Pub.

Pol’y & L. 116, 121-22 (1998) (“The key part of any

assessment of an offender is the collection of a detailed

psychosocial and psychosexual history’).

Another frequent reality in the prison context is limited

resources. Kansas does not have unlimited beds for

incarcerated sex offenders to participate in the SATP. Instead,

to some extent, Kansas prison administrators must prioritize

and ration those opportunities. An inmate such as Lile should

not be permitted to nonetheless drain those limited resources,

by occupying a space in the program, to the detriment of other

inmates who have demonstrated a willingness to engage in

meaningful treatment on the program’s terms, rather than only

on their own terms.

The Court long has recognized the important role that

acceptance of responsibility plays in rehabilitation efforts.

Such acceptance demonstrates that an offender “is ready and

willing to admit his crime and to enter the correctional system

in a frame of mind that affords hope for success in

rehabilitation over a shorter period of time than might

otherwise be necessary.” Brady v. United States, 397 U.S.

742, 753 (1970).

There is nothing irrational or arbitrary about denying that

opportunity to inmate Lile once he has made clear that he

refuses to cooperate in obtaining meaningful treatment. Thus,

he would not be punished for asserting his Fifth Amendment

privilege; rather, he would be denied the continuation of

43

certain privileges because he has demonstrated that he no

longer qualifies for more lenient prison conditions. '’

Prison administrators need a definitive answer to the

question presented in this case, in order to determine how best

to attempt to rehabilitate dangerous, violent sex offenders in

order to improve such offenders’ lives and to protect the pubiic

safety. Sex offender treatment programs have proven

effective, but they will be much less so absent strong

incentives for these troubled inmates to participate, and to

participate in a meaningful fashion.'* The Kansas SATP is a

step in the right direction; it should not be held to violate the

Constitution.

'’ The Kansas Secretary of Corrections, Charles Simmons, made this point

well in his deposition when he stated as follows:

{Ijt makes no sense to have someone who’s not participating in a

program taking up a bed in a setting where someone else who may be

willing to participate in a program could occupy that bed and participate

in a program. Inmates don’t get a choice of where to live. Those

assignments are made by the corrections officials, and in doing that, we

have to look at the overall management responsibilities and operations

that we have in making sure the department runs as best it can.

J.A. 99.

' Indeed, another aspect of this situation are the sex offender civil

commitment statutes that the Court has addressed in recent years. See, e.g.,

Kansas v. Hendricks, 521 U.S. 346 (1997); Seling v. Young, 531 U.S. 250

(2001); Kansas v. Crane, No. 00-957 (pending on the merits). Experience

has shown that many dangerous sex offenders—for a variety of

reasons— will refuse to participate in prison treatment programs absent

strong incentives to do so. When these offenders fail to take advantage of

such programs, the chances increase that the State may conclude that it is

necessary to attempt to involuntarily commit (for residential care and

treatment) some of these individuals upon their release from pnson. That

result might be unnecessary if sex offenders, many of whom are serving

sentences of considerable length, would avail themselves of meaningful,

prison treatment programs such as the Kansas SATP.

44

CONCLUSION

For the foregoing reasons, Kansas respectfully requests that

the Court reverse the decision of the Tenth Circuit, and hold

that the acceptance of responsibility requirement of the Kansas

sexual abuse treatment program is constitutional.

Respectfully submitted,

TIMOTHY G. MADDEN CARLA J. STOVALL

Chief Legal Counsel Attorney General

Kansas Department of STEPHEN R. MCALLISTER

Corrections State Solicitor

900 S.W. Jackson (Counsel of Record)

Topeka, Kansas 66612-1284 JAREDS.MAAG

(785) 296-3317 120 S.W. 10th Avenue,

2nd Floor

Topeka, Kansas 66612-1597

(785) 296-2215

Counsel for Petitioner

July 2001 _