# Petitioners Brief — McKune v. Lile

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 2002
- **Citation:** 536 U.S. 24

## Text

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

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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?

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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 _

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0447%3A05. Public record. Not legal advice.