Amicus Curiae Brief — McKune v. Lile

No. 00-1187 JU

In the Supreme Court of the United States

DAVID R. MCKUNE, WARDEN, ET AL.,

PETITIONERS

U.

ROBERT G. LILE

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

THEODORE B. OLSON

Solicitor General

Counsel of Record

STUART E. SCHIFFER

Acting Assistant Attorney

General

PAUL D. CLEMENT

Deputy Solicitor General

GREGORY G. GARRE

Assistant to the Solicitor

General

VICKI MARANI

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

ys

QUESTION PRESENTED

Whether the Fifth Amendment privilege against com-

pelled self-incrimination prevents a State from encouraging

incarcerated sexual offenders to participate in a clinical

rehabilitative program, in which participants must accept

responsibility for their offenses, by conditioning the avail-

ability of certain institutional privileges on participation in

the program.

— —

=> 2

TABLE OF CONTENTS

Interest of the United States 8

Statement

Summary of argument

Argument:

The Fifth Amendment does not prevent a State

from advancing legitimate penological objectives by

conditioning the availability of institutional privi-

leges on participation in a rehabilitation program

that requires convicted sexual offenders to accept

responsibility for their offenses

10

A. The determination whether an inmate has been

“compelled” to incriminate himself should take

into account the nature of the regime to which

he has been committed 1

B. In finding unconstitutional compulsion, the

court of appeals misconstrued this Court's

precedents and overlooked the history and pur-

pose of the privilegge

C. Even if the Kansas SATP implicates inmates’

Fifth Amendment rights, it reasonably ad-

vances legitimate penological goals and there-

fore is valid under Turner —

D. If the Court concludes that the Kansas Sa TP

violates the Fifth Amendment, it should be

careful to avoid casting doubt on the validity

of other treatment programwmes

TABLE OF AUTHORITIES

Cases:

Baltimore City Dep't of Soc. Servs. v. Bouknight,

9000.

(IID)

— 11

— 16

* &

17-18, 22

IV

Cases—Continued: Page

Bankes v. Simmons, 963 P.2d 412 (Kan.), cert.

denied, 525 U.S. 1060 (1998) 15

Baxter v. Palmigiano, 425 U.S. 308 (1976) 12, 17

Bell v. Wolfish, 441 U.S. 520 (1979) 11

Bordenkircher v. Hayes, 434 U.S. 357 (1978) 18

Brady v. United States, 397 U.S. 742 (1970) 18

Corbitt v. New Jersey, 439 U.S. 212 (1978) 18

Couch v. United States, 409 U.S. 322 (1973) 19

Ferguson v. City of Charleston, 121 S. Ct. 1281

(2001) 22

Garrity v. New Jersey, 385 U.S. 493 (1967) 17, 18

Griffin v. California, 380 U.S. 609 (1965) 12

Hewitt v. Helms, 459 U.S. 460 (1983) 13, 15

Jaffee v. Redmond, 518 U.S. 1 (1996) 26

Jones v. North Carolina Prisoners’ Labor Union,

Inc., 433 U.S. 119 (1977) 11

Kansas v. Lile, 699 P. 2d 456 (Kan. 1985) 6

Lewis v. Casey, 518 U.S. 343 (1996) 12

Meachum v. Fano, 427 U.S. 215 (1976) 13, 15

Minnesota v. Murphy, 465 U.S. 420 (1984) 12, 16, 22, 23

Murphy v. Waterfront Comm’n, 378 U.S. 52 (1964) ....... 20

O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) 11, 21

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

(1998) 11,18

Pell v. Procunier, 417 U.S. 817 (1974) 13, 21

Sandin v. Conner, 515 U.S. 472 (1995) 9, 11, 12,

13, 15, 16, 21

Shaw v. Murphy, 121 S. Ct. 1475 (2001) 12, 20

Spevack v. Klein, 385 U.S. 511 (1967) 19

Turner v. Safley, 482 U.S. 78 (1987) 8, 9, 12,

20, 21, 25, 26

Ullmann v. United States, 350 U.S. 422 (1956) ............... 20

United States v. Mezzanatto, 513 U.S. 196 (1995) 18

United States v. Monia, 317 U.S. 424 (1943) 10

PPE Oy py HAE

Cases—Continued: , Page

United States v. Washington, 431 U.S. 181

(1977) 11

Ward v. Rock Against Racism, 491 U.S. 781

(1989) 21

Constitution, statute and regulations:

US. Const.:

Amend. I 12, 21

Amend. V passim

Self Incrimination Clause 1, 8, 10, 14, 15, 17

Due Process Clause 15

Amend. XIV 1

18 U.S.C. 3563(b)(9) (1994 & Supp. V 1999) 14

42 C. F. R.:

Section 2.22(b) 26

Section 2.22(b)(4) 26

Kan. Admin. Regs. § 44-5-105(c)(1) 5

United States Sentencing Guidelines § 3E1.1 14

Miscellaneous:

Henry J. Friendly, The Fifth Amendment Tomor-

row: The Case for Constitutional Change, 37

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

4 Kansas Dep’t of Corrections, Offender Programs

Evaluation (2000) 3, 21

Leonard W. Levy:

Constitutional Opinions: Aspects of the Bill of

Rights (1986) — 19

Origins of the Fifth Amendment (1968) 19

Stefan J. Padfield, Self-Incrimination and Accep-

tance of Responsibility in Prison Sex Offender

Treatment Programs, 49 U. Kan. L. Rev. 487

ee 22

The Sexual Predator: Law, Policy, Evaluation and

Treatment (Anita Schlank & Fred Cohen eds.,

1999) a 3

vl In the Supreme Court of the United States

Miscellaneous—Continued: Page

U.S. Dep't of Justice: No. 00-1187

Bureau of Prisons, Sex Offender Treatment Program

(2001) 2, 27

Bureau of Justice Statistics, Child Victimizers: * 1 —

Violent Offenders and Their Victims (1996) 2

Recidivism of Prisoners Released in 1983 (1997) 3 V.

Sex Offenses and Offenders (1997) ins 2, 3

Federal Bureau of Investigation, Uniform Crime RoBERT G. LILE

— 2

National Institute of Corrections, A Practitioner’s

Guide to Treating the Incarcerated Male Sex ON WRIT OF CERTIORARI

EE 3, 22 TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

The court of appeals in this case held that the Self Incri-

mination Clause of the Fifth Amendment, applied to the

States through the Fourteenth Amendment, prevents a

State from seeking to advance legitimate penological objec-

tives by conditioning the availability of certain institutional

privileges on convicted sexual offenders’ participation in a

clinical rehabilitative program in which participants must

accept responsibility for their sexual offenses. The Federal

Bureau of Prisons (BOP), which operates more than 90 penal

institutions across the country, has its own sexual offender

treatment program. Like the state program challenged in

this case, the overriding objective of the federal program is

“to help sexual offenders manage their sexual deviance in

(1)

2

order to reduce sexual recidivism.” U.S. Dep’t of Justice,

Bureau of Prisons, Sex Offender Treatment Program 1

(2001) (Program Description). As we explain below,

although the federal program differs in important respects

from the state program here, it shares the critical treatment

goal of having inmates demonstrate “[c]omplete acceptance

of responsibility for [their] sexual crime(s).” Jd. at 2. The

United States has a strong interest in establishing the

validity of such treatment programs and, more generally, in

ensuring that prison officials have appropriate discretion in

seeking to advance legitimate penological goals such as

reducing sexual recidivism.

STATEMENT

1. Sexual offenders inflict a terrible toll each year on this

Nation and its citizens. In 1995, nearly 355,000 rapes and

sexual assaults were reported nationwide by victims older

than 12 years. U.S. Dep’t of Justice, Bureau of Justice

Statistics, Sex Offenses and Offenders (1997); see also U.S.

Dep’t of Justice, Federal Bureau of Investigation, Uniform

Crime Reports 24 (1999).' Between 1980 and 1994, the aver-

age number of individuals imprisoned for sexual offenses

increased at a faster rate than that for any other category of

violent crime. Sex Offenses and Offenders 18. In 1994,

nearly 100,000 inmates were serving time in state prisons for

rape or sexual assault; another 134,000 convicted sexual of-

fenders were under community supervision, such as

probation or parole. Jd. at 15. More than 42,000 of those

inmates victimized children. U.S. Dep’t of Justice, Bureau of

Justice Statistics, Child Victimizers: Violent Offenders and

Their Victims 2 (1996).

These figures understate the incidence of sexual offenses because

many sexual offenses go unreported and others involve children under the

age of 12, who are not covered by this survey.

3

When they reenter society at large, convicted sexual of-

fenders are much more likely to repeat the offense of con-

viction than any other type of felon. Sex Offenses and

Offenders 27; U.S. Dep’t of Justice, Bureau of Justice

Statistics, Recidivism of Prisoners Released in 1983 6

(1997). At the same time, however, it is widely accepted by

correctional officials and therapists alike that clinical reha-

bilitative programs can enable sexual offenders to manage

their criminal sexual impulses and thereby reduce the risk of

sexual recidivism. U.S. Dep’t of Justice, Nat’) Institute of

Corrections, A Practitioner’s Guide to Treating the Incar-

cerated Male Sex Offender xiii (1988) (Practitioner’s Guide).

A vital component of those programs is for participants to

come to terms with their sexual misconduct. /d. at 73.

2. a. Like most States and the federal government,

Kansas has established a sexual abuse treatment program

(SATP) for convicted sexual offenders as a means of enabling

such inmates “to contro] deviant behavior and reduce [the

risk of] reoffending” behavior. 4 Kansas Dep’t of Cor-

rections, Offender Programs Evaluation 31 (2000); J.A. 99.

The Kansas SATP utilizes a number of generally accepted

treatment techniques, including individual and group coun-

seling, as well as polygraph and penile plethysmograph

testing. See Practitioner’s Guide 219-224 (discussing model

treatment programs from more than 20 States). A critical

treatment goal of the Kansas program—like that of virtually

every other successful program—is for participants to accept

2 The rate of recidivism of treated sexual offenders is fairly con-

sistently estimated to be around 15%,” whereas the rate of recidivism

for untreated offenders has been estimated to be as high as 80%.

Practitioner's Guide xiii. “Even if both of these figures are exaggerated,

there would still be a significant difference between treated and untreated

individuals.” Ibid.; see also, e.g., The Sexual Predator: Law, Policy,

Evaluation and Treatment 11-25 (Anita Schlank & Fred Cohen eds., 1999)

(In seems generally recognized * * that given an appropriate

trea..nent regimen, many sexual offenders do respond positively.”).

1

responsibility for their offenses. J. A. 100, 107. To that end,

participants must complete an “Admission of Responsibility”

form (J.A. 31), fill out a sexual history form discussing

offending behavior (J.A. 32-34), and discuss their past sexual

behavior in individual and group counseling sessions.

SATP staff generally keep such information confidential.

However, inmates are informed before entering the program

that confidentiality is limited. J.A. 35-36. In particular,

SATP counselors must report any incidents of child abuse, as

well as “situations which could be harmful to [the inmate] or

others, or a threat to the orderly operation of the facility.”

J.A. 35. SATP staff also provide treatment evaluations of

participants to the Kansas Parole Board, and SATP records

may be subpoenaed. Ibid. We understand that no SATP

participant has ever been charged with (or convicted of) a

criminal offense based on information disclosed during treat-

ment, but an inmate’s participation in the program none-

theless could result in the disclosure of potentially incrimi-

nating information.

b. Correctional officials recommend convicted sexual of-

fenders who meet certain criteria for participation in the

SATP. Those inmates are advised that the SATP is

“voluntary,” and that participants must sign a consent form

before enrolling. J.A. 31; Pet. App. 20a. Nevertheless,

prison officials encourage participation in the SATP, just like

other prison programs, to advance their penological objec-

tives. Pet. App. 27a; J.A. 100.

As an Overall means of “managing the offender population

and reinforcing constructive behavioral changes in of-

fenders,” the State’s Internal Management Policy and Pro-

3 Information about sexual offenses other than the offense of con-

viction may come up during counseling, but SATP staff do not view it as

their role to “investigate” such offenses and, thus, try to use identifiers for

prior victims other than their full names. J.A. 154; see J.A. 109-112, 154-

155.

5

cedure (IMPP) for prisons establishes “a comprehensive

system of earnable offender privileges,” including those

governing TV ownership, inmate organizations and activi-

ties, canteen expenditures, property, incentive pay, and

visitation. J.A. 13-14. The IMPP establishes certain

incentive levels—Intake Level, Level I, Level II, and Level

III that reward inmates who meet correctional goals by

granting them additional privileges. J.A. 14-15, 27, 52.

Although applicable regulations state that an “inmate shall

not be penalized for refusal to participate in a formal

program plan,” Kan. Admin. Regs. § 44-5-105(c)(1), an in-

mate’s decision not to participate in a recommended pro-

gram, including the SATP, results in a reduction in

his incentive level and, thus, in his privileges. J.A. 19, 73-74.

Declining to participate in the SATP may also affect

where an inmate is housed. Kansas operates minimum,

medium, and maximum security facilities. An inmate may

not be housed in a facility with a security designation below

his custody level, but may be housed in a facility with a

security designation above that level. J.A. 60, 62; see J.A.

103-104 (“There are probably hundreds of medium security

inmates today, and probably a good number of minimum

security—or custody inmates, that are living in maximum

security settings today.”). Prison officials do not base

housing decisions on the IMPP’s incentive system, but in-

stead rely, inter alia, on an inmate’s custody level, the

availability of space in a particular facility, and whether an

inmate is enrolled in a program or has a job in a facility. J.A.

62-63, 68, 70-71, 99.

The SATP is conducted at only a few facilities in Kansas,

including at the medium-security facility in Lansing. An

inmate’s refusal to participate in the SATP may result in his

transfer from a facility that hosts the program to another

facility, consistent with his custody level. J.A. 83. As the

Secretary of Corrections has explained, “it makes no sense

to have someone who’s not participating in a program taking

6

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.” J.A. 99.

3. In 1982, respondent flagged down a high school girl

and forced her at gunpoint to commit oral sodomy on him,

then drove her to a field and raped her. He was convicted of

rape, aggravated sodomy, and aggravated kidnaping, and

sentenced to life imprisonment with the possibility of parole

after 15 years. Kansas v. Lile, 699 P.2d 456, 457 (Kan. 1985).

Respondent was assigned a medium-custody level and impri-

soned in the maximum-security facility in Lansing, along

with other medium-custody inmates. In 1989, he was trans-

ferred to the medium-security facility in Lansing. In 1994,

prison officials recommended that respondent participate in

the SATP at that facility, but he declined to do so. Pet.

App. 4a.

Under the IMPP, respondent’s decision not to enroll in the

SATP reduced his incentive level from Level III to Level I

and, thus, diminished his privileges. Pet. App. 10a. At Level

III, respondent could, inter alia, purchase his own personal

TV; participate in approved organizations or activities;

receive any approved visitor; and spend $140 per payroll

period in the canteen. At Level I, he remains eligible for

general TV viewing; may participate in certain self-help

programs and enjoy library and religious services and gym

and yard activities; may receive visits from immediate family

members, attorneys, and clergy; and may spend up to $20

per payroll period. See J.A. 27 (chart).

Although he retained his medium-custody level, respon-

dent received notice that he would be transferred from

Lansing’s medium-security facility—where the SATP is

conducted—to its maximum-security facility, where he

would be housed in the C-2 unit with other medium-custody

inmates. Pet. App. 17a; J.A. 73. The conditions in C-2 are

less favorable than those at the medium-security facility.

For example, more inmates share a cell in C-2; it has inferior

« *

7

athletic facilities; and C- 2 inmates enjoy less flexibility than

inmates in the medium-security facility, who, for example,

have keys to their dormitory-style cells. J.A. 64-68; C.A.

App. 47-48. In addition, respondent asserts that the

potential for violence is greater in the C-2 unit, though

prison officials dispute that contention. See J.A. 78-79.

4. In 1995, respondent filed this action, claiming that

prison officials violated his Fifth Amendment privilege

against compelled self-incrimination by reducing his pri-

vileges and noticing his transfer for not participating in the

SATP.‘ The district court found that the SATP is a genuine

“clinical rehabilitative program,” supported by a “legitimate

penological objective”—rehabilitation. Pet. App. 52a. In

addition, the court acknowledged that respondent’s refusal

to participate in the program may not result in any “atypical

[prison] hardship.” Jd. at 43a. Nonetheless, the court held

that “the hardship attendant to [respondent’s] refusal to

participate in the SATP Program is sufficient compulsion for

purposes of the Fifth Amendment,” and granted summary

judgment for respondent. /d. at 44a.

The court of appeals affirmed. Pet. App. la-32a. The

court held that the consequences flowing from respondent’s

refusal to participate in the SATP “are sufficiently potent

and substantial to constitute impermissible compulsion”

under the Fifth Amendment. Id. at 26a. In so holding, the

court reasoned that in the prison context unconstitutional

“{cJompulsion can be established by hardships that may not

be atypical and that do not constitute enforceable liberty

interests.” Jd. at 15a. Because it found impermissible com-

4 Respondent also claimed that the SATP violated his constitutional

“right to privacy and bodily integrity” by requiring him to submit to a

plethysmograph examination. Pet. App. 46a. The court of appeals did not

consider the merits of that claim, and that issue is not before this Court.

Id. at 32a.

8

pulsion, the court rejected the proposition that the SATP

was truly voluntary.” Id. at 20a.

The court also considered respondent’s claim under the

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

The court agreed with Kansas that the SATP served

legitimate penological interests—“promoting rehabilitation

and increasing public safety”—and recognized that requiring

inmates to accept responsibility for their offenses advanced

those interests, as “most mental health experts agree that ‘a

sex offender must admit his guilt for treatment and

rehabilitation to be successful.’” Pet. App. 27a-28a. Never-

theless, the court concluded that “the Turner balancing

weighs in favor of the inmate,” reasoning that the State

could achieve its objectives “by implementing a system of

confidentiality or granting immunity.” Id. at 32a.

SUMMARY OF ARGUMENT

Kansas encourages incarcerated sexual offenders to

participate in a sexual abuse treatment program by con-

ditioning the availability of certain privileges upon an in-

mate’s agreement to participate. The program recognizes

that successful treatment requires participants to come to

terms with their past history of sexual misconduct.

Although counselors seek that information to facilitate treat-

ment, in some instances, counseling sessions may elicit

information about past sexual history that indicates a

current risk to the safety of children or other inmates.

Kansas warns program participants that such information

will not necessarily remain confidential. Nothing in the Self

Incrimination Clause precludes Kansas from adopting, or

encouraging inmates to participate in, this common-sense re-

habilitative program.

The privilege against self-incrimination does not termi-

nate with incarceration. Nonetheless, the fact of incar-

ceration and the resulting restrictions on an inmate’s liberty

clearly inform the Fifth Amendment analysis. In the due

— ee —

9

process context, this Court recognizes that the elimination of

privileges and minor changes in incarceration status do not

implicate constitutional liberty interests. E. g., Sandin v.

Conner, 515 U.S. 472 (1995). Those same principles support

the proposition that, absent arbitrary state action, the minor

changes in detention status at issue here do not result in

unconstitutional compulsion. The court below reached a

different conclusion by relying on cases that prohibit the

government from penalizing the assertion of a Fifth Amend-

ment privilege by loss of public employment or contracts.

But this Court has never applied those so-called “penalty”

cases in the prison context, and with good reason. The

granting and withdrawing of privileges to which inmates

have no entitlement does not create the same kind of com-

pulsion as the penalties discussed in this Court’s precedents.

Moreover, the court of appeals lost sight of the basic point

that what constitutes impermissible “compulsion” must take

account of the significant restrictions already inherent in any

sound penal regime.

Even if Kansas’ treatment program implicates the Fifth

Amendment rights of inmates, it does not violate the Consti-

tution because any burdens on those rights are reasonably

related to legitimate penological interests. See Turner v.

Safley, 482 U.S. 78 (1987). Kansas’ interest in reducing

recidivism among convicted sexual offenders is unassailably

legitimate. The treatment program advances that interest

directly because it is almost universally acknowledged that

accepting responsibility for past sexual misconduct is neces-

sary for successful treatment. By providing incentives for

inmates to participate, prison officials further the interests

of other inmates, the facility, and society as a whole. Al-

though not questioning those interests, the court of appeals

held that the Kansas program was unconstitutional by rea-

soning that the State could achieve those objectives, without

implicating inmates’ constitutional rights, by the simple

expedient of immunization. But decisions concerning the

10

scope of confidentiality in the prison rehabilitative setting

are no less deserving of deference than other difficult

judgments that correctional officials must make. Moreover,

the limits that Kansas has placed von confidentiality, includ-

ing those requiring counselors to report information

concerning child abuse or the safety of inmates, clearly pro-

mote legitimate penological objectives.

Finally, if this Court concludes that the Kansas program is

unconstitutional, it should do so on grounds that do not cast

doubt on the validity of other treatment programs, including

the federal program. Although there is almost universal

agreement that acceptance of responsibility is key to suc-

cessful treatment of sexual offenders, there are a variety of

ways to contour such a treatment program. BOP has chosen

not to condition the availability of privileges on inmates’

agreement to participate in its treatment program. Even if

the Court concludes that the Kansas program is invalid, it

should leave room for the operation of a treatment program

like the federal one.

ARGUMENT

THE FIFTH AMENDMENT DOES NOT PREVENT A

STATE FROM ADVANCING LEGITIMATE PE-

NOLOGICAL OBJECTIVES BY CONDITIONING THE

AVAILABILITY OF INSTITUTIONAL PRIVILEGES

ON PARTICIPATION IN A REHABILITATION PRO-

GRAM THAT REQUIRES CONVICTED SEXUAL

OFFENDERS TO ACCEPT RESPONSIBILITY FOR

THEIR OFFENSES

The Self Incrimination Clause of the Fifth Amendment

states that no person “shall be compelled in any criminal case

to be a witness against himself.” Because “(t]he Amendment

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

427 (1943), this Court has emphasized that “[t)he consti-

tutional guarantee is only that the witness be not compelled

11

to give self - ineriminating testimony.” United States v.

Washington, 431 U.S. 181, 188 (1977) see Ohio Adult Parole

Auth. v. Woodard, 523 U.S. 272, 286 (1998). The overriding

issue in this case is whether Kansas’ decision to condition

certain privileges on whether convicted sexual offenders

avail themselves of the State’s SATP creates impermissible

compulsion within the meaning of the Fifth Amendment

privilege. As we explain below, that question should be

resolved in light of the settled principles governing the

constitutional rights of those who have been lawfully

committed to a correctional system.

A. The Determination Whether An Inmate Has Been

“Compelled” To Incriminate Himself Should Take

Into Account The Nature Of The Regime To Which He

Has Been Committed

1. “{PJrisoners do not shed all constitutional rights at the

prison gate, but IIlawful incarceration brings about the

necessary withdrawal or limitation of many privileges and

rights, a retraction justified by the considerations under-

lying our penal system.“ Sandin v. Conner, 515 U.S. 472,

485 (1995) (citation omitted); see Shaw v. Murphy, 121 S. Ct.

1475, 1479 (2001); O Lone v. Estate of Shabazz, 482 U.S. 342,

348 (1987); Jones v. North Carolina Prisoners’ Labor Union,

Inc., 433 U.S. 119, 129 (1977). A broad range of conditions

and choices that would infringe constitutional rights in free

society fall within the “expected conditions of confinement”

of those who have been lawfully convicted and incarcerated.

Sandin, 515 U.S. at 487 n.11.

“The limitations on the exercise of constitutional rights

{by inmates] arise both from the fact of incarceration and

from valid penological objectives—including * * *

rehabilitation of prisoners.” O Lone, 482 U.S. at 348; see Bell

v. Wolfish, 441 U.S. 520, 546 (1979). Courts owe broad defer-

ence to the judgment of those who administer our Nation’s

penal institutions in determining how to promote such legiti-

12

mate penological objectives. See Shaw v. Murphy, 121 S. Ct.

at 1480; Lewis v. Casey, 518 U.S. 343, 349-350 (1996).

Moreover, when, as here, “a state penal system is involved,

federal courts have * * * additional reason to accord

deference to the appropriate prison authorities.” Turner v.

Safley, 482 U.S. 78, 85 (1987).

Those principles apply to the Fifth Amendment just as

forcefully as they do with respect to the First Amendment

and other cherished rights. To be sure, al defendant does

not lose [Fifth Amendment] protection by reason of his

conviction of a crime.” Minnesota v. Murphy, 465 U.S. 420,

426 (1984). But, as this Court has recognized, lawful con-

viction and incarceration necessarily place limitations on the

exercise of a defendant’s Fifth Amendment privilege. See,

e.g., Baxter v. Palmigiano, 425 U.S. 308 (1976). In Bazter,

the Court declined to extend to prison disciplinary proceed-

ings the rule of Griffin v. California, 380 U.S. 609 (1965),

that the prosecution may not comment on a defendant’s

silence at trial. 425 U.S. at 319; see id. at 320. As the Court

explained, “(dJisciplinary proceedings in state prisons * * *

involve the correctional process and important state

interests other than conviction for crime.” Id. at 319.

2. a. The uniqueness of the prison environment informs

the determination whether an individual has been “com-

pelled” to act in a manner proscribed by the Fifth Amend-

ment. As the Court explained most recently in Sandin, the

“expected perimeters of the sentence imposed by a court of

law” include a wide range of actions that may adversely

affect an inmate’s life within the penal system, without

implicating any protected liberty interest. 515 U.S. at 485.

For example, le lonfinement in any of the State’s institutions

is within the normal limits or range of custody Which the

conviction has authorized the State to impose.” Meachum v.

Fano, 427 U.S. 215, 225 (1976). Accordingly, the fact It lhat

life in one prison is much more disagreeabile than in another”

does not in itself give rise to any constitutional objection

3331

13

“when a prisoner is transferred to the institution with the

more severe rules.” Ibid.

The same follows for any number of additional privileges

or conditions affecting the “ordinary incidents of prison life,”

including the entitlement to particular types of food, rec-

reational facilities, or jobs. See Sandin, 515 U.S. at 483.

Indeed, in Hewitt v. Helms, 459 U.S. 460, 467 n.4 (1983), this

Court concluded that an inmate’s transfer to another facility

did not in itself implicate a liberty interest, even though that

transfer resulted in the loss of “access to vocational, educa-

tional, recreational, and rehabilitative programs.” Short of

the type of “atypical, significant deprivation in which a State

might conceivably create a liberty interest,” or “arbitrary

state action,” an inmate may be required to endure many de-

privations without being denied any liberty interest.

Sandin, 515 U.S. at 486-487 & n.11.

When, as an incidental consequence of a valid rehabilita-

tive program, an inmate experiences nothing more than the

type of deprivations or hardships that are within the

expected conditions of his confinement, he has not been sub-

jected to compulsion proscribed by the Fifth Amendment.

One of the basic realities of incarceration is that prison

officials may establish incentives for inmates to behave in a

manner that advances legitimate penological goals, including

rehabilitation. See Pell v. Procunier, 417 U.S. 817, 823

(1974) (Slince most offenders will eventually return to

society, [a] paramount objective of the corrections system is

the rehabilitation of those committed to its custody.”).

Prison officials may promote such behavior in numerous

ways, including by linking the availability of institutional

privileges in which inmates enjoy no liberty interest to

whether inmates act in a manner that advances legitimate

penological goals. Asking inmates to choose between for-

going such privileges, on the one hand, and enrolling in a

clinical rehabilitative program that requires them to accept

responsibility for their sexual offenses, on the other, does not

14

subject them to any pressure that is not already inherent in

the regime to which they have been committed.

To be sure, forgoing institutional privileges may make pri-

son life more difficult for inmates. But when that is the

result of a choice that involves legitimate penological inter-

ests, it does not exert the compulsion necessary for a Fifth

Amendment violation. Where a correctional program—

rehabilitative or otherwise—does not advance a legitimate

objective, but instead is simply a pretext for gathering in-

criminating evidence on inmates, a State could not deny in-

mates privileges for refusing to participate. But nothing in

the Self Incrimination Clause prevents a State from estab-

lishing a valid rehabilitative program and encouraging in-

mates to participate in it by conditioning privileges in which

they do not enjoy a liberty interest on their decision to enter

the program.

b. The loss of privileges experienced by respondent

clearly did not implicate any protected liberty interest. As

discussed above, under the IMPP, the reduction in respon-

5 The breadth of the reasoning that led the Tenth Circuit to a con-

trary conclusion invites Fifth Amendment challenges by inmates to

virtually any effort by prison officials to allocate privileges or conditions,

even incidentally, based on whether a prisoner has accepted responsibility

for his offenses. For example, if the decision below is affirmed, prisoners

can be expected to challenge the use of offense severity scores to assign

prisoners to more restrictive facilities if (as in the federal system) offense

levels take account of whether the prisoner accepted responsibility for the

offense of conviction. Cf. Sentencing Guidelines § 3E1.1. Likewise, the

Tenth Circuit’s expansive rationale could lead to challenges to the routine

imposition of rehabilitative treatment (whether for sexual offenders or

substance abusers) as a condition of probation, parole, or supervised re-

lease. Cf., e.g., 18 U.S.C. 3563(b)(9) (1994 & Supp. V 1999).

6 Respondent has not argued, nor could he, that his decision not to

participate in the SATP increased the sentence that he received for his

crimes of rape, aggravated sodomy, and kidnaping. Moreover, respon-

dent’s decision not to participate in the SATP did not affect his eligibility

for good-time credits or his eligibility for parole. See Pet. App. 10a-12a.

—

—

ae aa"

— — —

15

dent’s incentive level diminished (but did not eliminate) his

privilege to enjoy, inter alia, TV ownership, inmate activi-

ties, canteen expenditures, visitation, incentive pay, and

intake property. See J.A. 27. Those are precisely the sort of

“ordinary incidents of prison life” that, as this Court re-

affirmed in Sandin, are not protected by the Due Process

Clause. 515 U.S. at 483; see Bankes v. Simmons, 963 P.2d

412, 420 (Kan.) (reduction in privileges stemming from

refusal to participate in the SATP or other program is “not

atypical and dofes] not pose a significant hardship within a

prison” and, thus, does “not involve a liberty interest”), cert.

denied, 525 U.S. 1060 (1998). Accordingly, the loss of those

privileges here does not create the degree of compulsion re-

quired to trigger the Self Incrimination Clause.

The same goes for the proposed change in respondent’s

housing. Indeed, that change is analogous to—and, if

anything, less consequential than—the transfer challenged in

Meachum, where this Court held that the Due Process

Clause does not in itself protect an inmate from being trans-

ferred from a medium-security facility to a maximum-

security facility with less favorable living conditions. 427

U.S. at 228-229." As the Court explained, “[wJhatever ex-

pectation the prisoner may have in remaining at a particular

prison so long as he behaves himself, it is too ephemeral and

insubstantial to trigger procedural due process protections

as long as prison officials have discretion to transfer him for

whatever reason or for no reason at all.” Id. at 228. See

Sandin, 515 U.S. at 486; Hewitt, 459 U.S. at 468.

7 Respondent has asserted that the conditions in the C- A unit would

expose him to a “greater threat of personal harm.” Opp. 2 (citing Pet.

App. 18a). But prison officials have contradicted that contention. J.A. 78-

79. Although the change in conditions does not appear any less favorable

than the one involved in Meachum, if the Court concludes that that fact is

material to the Fifth Amendment analysis in this case, it is genuinely

disputed and should preclude summary judgment for respondent.

16

In sum, any pressure that was placed on respondent by

the State’s rules for encouraging inmates to participate in

prison programs was entirely consistent with the nature of

the regime to which he was lawfully committed, and did not

rise to the level of compulsion proscribed by the Fifth

Amendment.

3. The foregoing analysis establishes a clear and pre-

dictable regime for prison administrators seeking to encour-

age inmate participation in rehabilitative programs with

acceptance-of-responsibility treatment goals, and builds on

the framework that this Court has established for reviewing

the constitutional claims of prisoners. Moreover, the Court’s

existing due process precedents not only provide a helpful

baseline for evaluating claims of unconstitutional compulsion

in the prison context, but also minimize the line-drawing

problems that the Court sought to foreclose in Sandin. See

515 U.S. at 483-484.

B. In Finding Unconstitutional Compulsion, The Court

Of Appeals Misconstrued This Court’s Precedents

And Overlooked The History And Purpose Of The

Privilege

1. In finding impermissible compulsion, the court of

appeals relied upon “the so-called ‘penalty’ cases.” Min-

nesota v. Murphy, 465 U.S. at 434; see Pet. App. 15a-16a. In

Ik the loss of privileges in which inmates enjoy no liberty interest

may amount to impermissible compulsion, then courts will certainly be

called upon to decide which privileges are of constitutional magnitude.

For example, it could not plausibly be argued that conditioning an in-

mate’s privilege to receive “a tray lunch rather than a sack lunch”

(Sandin, 515 U.S. at 483) on whether he agreed to participate in a sexual

offender treatment program requiring acceptance of responsibility estab-

lished unconstitutional compulsion. Presumably, the same could be said of

the privilege to be housed in a cell with “electrical outlets for televisions.”

Ibid. But at some point, this Court would have to discover a limiting

principle for deciding when impermissible compulsion arises due to the

loss of such privileges.

—

17

those cases, the Court ruled that “the State could not consti-

tutionally seek to compel testimony that had not been im-

munized by threats of serious economic reprisal,” such as the

termination of public “employment or eligibility to contract

with the State.” Baxter, 425 U.S. at 317. As the Court put it

in Garrity v. New Jersey, 385 U.S. 493, 497 (1967), t jhe

option to lose [one’s] means of livelihood or to pay the

penalty of self-incrimination is the antithesis of free choice to

speak out or remain silent.”

Whatever the precise effect the fact of incarceration has

on the scope of the Self Incrimination Clause, the court of

appeals below erred in relying on the Court’s penalty cases.

This Court has never applied those cases to find a Fifth

Amendment violation in the prison context, and with good

reason. The penalty cases represent a significant extension

of the protection against self-incrimination to preclude not

only incrimination in a criminal case, but also being put to a

choice between invoking the right and pursuing a livelihood

or other important economic interests. Those principles are

not easily extended to the prison context, where inmates

already have surrendered their rights to pursue a livelihood

and to contract freely with the State, as well as their liberty

interests in many other basic freedoms.

In addition, there is no indication in this Court’s decisions

that the state provisions invalidated in the penalty cases

were supported by a government interest other than ob-

taining potentially incriminating information from public em-

ployees or contractors. Here, by contrast, the correctional

program is directly related to legitimate government objec-

tives, including the rehabilitation of those who have been

lawfully committed to its custody. “The Court has on several

occasions recognized that the Fifth Amendment privilege

may not be invoked to resist compliance with a regulatory

regime constructed to effect the State’s public purposes

unrelated to the enforcement of its criminal laws.” Balti-

more City Dep't of Soc. Servs. v. Bouknight, 493 U.S. 549,

18

556 (1990) (citing cases). That the regulatory program chal-

lenged in this case is amply supported by such purposes

provides an additional reason to uphold it.

The penalty cases likewise must be considered in light of

this Court’s precedents recognizing that criminal defendants

confront numerous difficult choices from investigation to

conviction and release that do not create unconstitutional

pressures. See, e.g., Woodard, 523 U.S. at 287; United States

v. Mezzanatto, 513 U.S. 196 (1995); Corbitt v. New Jersey,

439 U.S. 212 (1978); Bordenkircher v. Hayes, 434 U.S. 357

(1978); Brady v. United States, 397 U.S. 742 (1970). Those

cases establish that the Constitution allows the State to ask

defendants and inmates to choose between exercising a con-

stitutional right and forgoing that right in exchange for a

hope or promise of some benefit. To the extent that the

penalty cases invalidate such choices when imposed as

generic conditions in particular civil contexts, different con-

siderations apply in the criminal justice system.”

Moreover, the penalty cases involved choices that were

different in both kind and degree from the choice presented

to respondent here—a reduction in privileges governing

matters such as TV ownership or recreational activities and

transfer to less favorable though still more than adequate

housing. Cf., e.g., Garrity, 385 U.S. at 497 (“The choice given

petitioners was either to forfeit their jobs or to incriminate

ln the prison ecntext, correctional officials may present inmates

with choices that require them to weigh the continued enjoyment of cer-

tain privileges against the perceived disadvantages of submitting to a

valid treatment program, even when that program incidentally may

require the inmate to disclose potentially incriminating information. That

a program requires an inmate to weigh the benefit of retaining existing

privileges as opposed to the benefit of obtaining new privileges is not a

difference of constitutional dimension. The constitutionality of Kansas’

program should not turn on whether it moves inmates who agree to

participate from Level I to Level III, or moves those who decline to

participate from Level III to Level I.

1 — ee

19

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

(“(T]Jhreat of disbarment and the loss of professional stand-

ing, professional reputation, and of livelihood are powerful

forms of compulsion.”). Thus, even if the prison context did

not make any difference in this case, the penalty cases would

still be inapposite.

2. Likewise, nothing in the history of the Fifth Amend-

ment indicates that the privilege against compulsory self-

incrimination was intended to proscribe the type of choice

presented to respondent. “Historically, the [Fifth Amend-

ment] 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 resurt to the expedient

of compelling incriminating evidence from one’s mouth. 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) (citation omitted); see Leonard W. Levy,

Origins of the Fifth Amendment 328 (1968) (“The element of

compulsion or involuntariness was always an essential ingre-

dient of the right [against self-incrimination].”)."°

Justice Frankfurter observed for the Court that At jhe

privilege against self-incrimination is a specific provision of

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

volume of logie. Ullma:zin v. United States, 350 U.S. 422,

10 The penalty decisions have been criticized for stretching the Fifth

Amendment privilege beyond its historical moors. As Judge Friendly ob-

served, In lothing in the historical development of the [Fifth Amendment]

privilege suggests that threatened loss of employment was the kind of

compulsion against which the amendment aimed to protect.” Henry J.

Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional

Change, 37 U. Cin. L. Rev. 671, 707 (1968); see id. at 708 & n.158; see also,

e.g., Leonard W. Levy, Constitutional Opinions: Aspects of the Bill of

Rights 208 (1986). As noted above, finding unconstitutional compulsion in

this case would require extending the Fifth Amendment privilege even

further beyond its original design.

20

438 (1956). Asking inmates to choose between certain insti-

tutional privileges and participation in a rehabilitative pro-

gram requiring acceptance of responsibility does not subject

inmates to an “inquisition,” or even the “cruel trilemma of

self-accusation, perjury or contempt.” Murphy v. Water-

front Comm’n, 378 U.S. 52, 55 (1964). To the extent that an

inmate fears that participation may result in self-incrimina-

tion, he may simply decline to participate. While it may

make the conditions of his confinement less comfortable, that

decision has no incriminating effect whatever.

C. Even If The Kansas SATP Implicates Inmates’ Fifth

Amendment Rights, It Reasonably Advances Legiti-

mate Penological Goals And Therefore Is Valid Under

Turner

Even if Kansas’ treatment program implicates respon-

dent’s Fifth Amendment rights, the SATP is nonetheless

constitutional under Turner. As the court of appeals recog-

nized, a finding of constitutionally impermissible compulsion

begins rather than ends the constitutional analysis. “[WJhen

a prison regulation impinges on inmates’ constitutional

rights, the regulation is valid if it is reasonably related to

legitimate penological interests.” Turner, 482 U.S. at 89. As

the Court underscored just last Term, “under Turner and its

predecessors, prison officials are to remain the primary

arbiters of the problems that arise in prison management.”

Shaw v. Murphy, 121 S. Ct. at 1480.

Turner identifies several potentially relevant factors in

determining whether a prison regulation implicating pri-

soners’ constitutional rights furthers legitimate penological

goals, including the extent to which the regulation has a

rational connection to the State’s legitimate interests, and

the existence of ready and reasonable alternatives. 482 U.S.

at 89-90. To the extent that those factors are relevant to a

self-incrimination claim, they point decidedly to the consti-

—_—- <i. —

21

tutionality of Kansas’ SATP."" The Tenth Circuit’s contrary

conclusion is based on a fundamental misapplication of

Turner.

1. Kansas’ program furthers the indisputably legitimate

goal of reducing recidivism among convicted sexual of-

fenders. Rehabilitation is a “paramount objective” of any

penal system. Pell, 417 U.S. at 823; see Sandin, 515 U.S. at

485; O’Lone, 482 U.S. at 348; Pet. App. 28a. Respondent does

not deny that the SATP is a genuine “clinical rehabilitative

program.” Id. at 52a. As discussed above, that program

utilizes generally accepted treatment techniques for sexual

offenders, and has as its primary objective reducing sexual

recidivism among such offenders. See p. 3, supra; J.A. 99-

100. What is more, the available statistics indicate that the

Kansas program actually has succeeded in promoting that

objective. 4 Offender Programs Evaluation 34 (discussing

reduction in sexual recidivism among inmates receiving

treatment compared with those who eschewed it).

11 In Turner, this Court also identified as relevant considerations the

availability of alternative means to exercise the constitutional right, and

the impact of the regulation on guards, other inmates, and the allocation of

prison resources generally. See 482 U.S. at 90. Although the former

factor may be instructive in a First Amendment case like Turner, we do

not believe that it affects the analysis of respondent’s Fifth Amendment

claim. While the First Amendment makes the existence of alternative

channels of communications constitutionally relevant, see, e.g., Ward v.

Rock Against Racism, 491 U.S. 781, 797 (1989), there is no analogous Fifth

Amendment doctrine. With respect to the latter factor, everyone in the

prison environment—including inmates, guards, and other prison

officials—benefits from encouraging sexual offenders to receive treatment

that may enable them to control their sexual impulses. Sexual offenses

within prison remain a serious problem in the Nation’s penal institutions.

In addition, to the extent that information disclosed during the program

may be used to prevent inmates from abusing one another or guards, that

consideration only bolsters the constitutionality of the Kansas program

under Turner. See p. 26, infra.

22

At the same time, no one disputes that acceptance of re-

sponsibility is a critical component of sexual offender treat-

ment programs. See Pet. App. 28a-29a; Practitioner’s Guide

73; J.A. 100, 107. As one commentator has explained: “With-

out acceptance of responsibility, the key goals of treatment

are stymied. Denial precludes addressing cognitive dis-

tortions, developing empathy for victims, identifying risk

factors that may serve as warning signals, developing much

needed social skills, and examining deviant sexual arousal.”

Stefan J. Padfield, Self-Incrimination and Acceptance of

Responsibility in Prison Sex Offender Treatment Programs,

49 U. Kan. L. Rev. 487, 498 (2001).

Respondent has not argued that the Kansas SATP and, in

particular, its acceptance-of-responsibility goal are merely

subterfuges for gathering incriminating evidence with re-

spect to either the offense of conviction or prior sexual

offenses. Cf. Ferguson v. City of Charleston, 121 S. Ct. 1281,

1291 (2001); Minnesota v. Murphy, 465 U.S. at 423 n.2. That

argument would not be plausible in any event. No inmate

has been charged with any offense based on information dis-

closed during treatment and, although information about

other offenses may be disclosed, SATP staff do not

“investigate” such offenses during treatment sessions. See

p. 4, supra. To be sure, treatment presents the potential for

eliciting information that may implicate criminal activity, but

that potential incidental effect does not in itself render the

entire program illegitimate.”

In addition, the deprivations about which respondent

complains directly promote the State’s legitimate penological

objective of reducing sexual recidivism. Not every convicted

sexual offender welcomes treatment. Because denial is a

2 To the extent that the program were in fact abused by the State as

a subterfuge for investigating criminal offenses, an inmate could challenge

the use of any incriminating information obtained as a result of that abuse.

Cf. Bouknight, 493 U.S. at 561-562.

— — —

23

common obstacle to seeking rehabilitative treatment, prison

officials must be free to create incentives for convicted

sexual offenders to participate in such treatment programs.

Indeed, if it were not for the incidental effects of partici-

pation on asserted Fifth Amendment interests, nothing in

the Constitution would even arguably prevent a State from

directing inmates to participate in a valid rehabilitative

program. Extending or withholding the type of privileges at

issue in this case to provide an incentive for participation in

the SATP strikes an appropriate balance between the

inmate’s interest in avoiding self-incrimination and society’s

interest in fostering rehabilitation.”

Providing more favorable housing to inmates who agree to

participate in such programs is also an appropriate incentive.

That is especially true when, as here, the differences in hous-

ing reflect incidental differences between the treatment

facility and other facilities, and when housing changes allow

additional inmates to receive rehabilitative treatment de-

clined by others. See J. A. 99."

13 Indeed, in our view, programs that involved substantially greater

incentives would nonetheless strike a constitutional balance. For example,

the Fifth Amendment privilege should not pose an obstacle to a program

that conditions early release or parole on participation in a sexual treat-

ment program similar to Kansas’ SATP. A fortiori, encouraging partici-

pation in a treatment program within the prison walls is constitutional.

14 The court of appeals objected to the “automaticity” of the change in

institutional privileges resulting from respondent’s decision not to partici-

pate in the SATP. Pet. App. 25a. Although this Court has relied upon the

fact that a consequence did not automatically follow from a decision to

invoke the Fifth Amendment privilege as a reason for finding no

compulsion, e. g., Minnesota v. Murphy, 465 U.S. at 438, it has never held

that the “automaticity” of a consequence is in itself a basis for finding

compulsion, and this case would be a singularly inappropriate vehicle for

doing so. In the prison context in particular, prison officials and inmates

alike benefit from clear guidelines establishing the consequences flowing

from an inmate’s decision to behave in a particular fashion.

24

2. The absence of ready and reasonable alternatives for

reducing recidivism among convicted sexual offenders

bolsters the constitutionality of the SATP under the Turner

analysis. Instead of considering the availability of alter-

native treatments, the Tenth Circuit seized upon the alter-

native of simply immunizing any statements made during

treatment. Id. at 30a. That analysis is flawed on three

levels: it takes all self-incrimination claims outside of Turner;

it denies deference to prison officials in advancing legitimate

penological goals; and it ignores that the program’s con-

fidentiality limits themselves are reasonably tailored to

legitimate penological goals.

The most fundamental problem with the Tenth Circuit’s

analysis is that it would ensure that the government could

never satisfy the reasonable-alternatives prong of the

Turner analysis in a case that implicated a prisoner’s

interests in avoiding self-incrimination. Immunization is

always an alternative, at least in theory, to giving an inmate

the choice between forgoing a potential benefit and partici-

pating in a rehabilitative program that incidentally may

elicit potentially incriminating statements. The Tenth

Circuit described immunization as the “obvious, easy alter-

native” and “one that has been contemplated by the

Supreme Court since the very inception of the Fifth

Amendment right against self-incrimination.” Pet. App. 30a.

In light of this supposedly “obvious, easy alternative,” the

Tenth Circuit discounted Kansas’ penological interests and

concluded that this “factor weighs heavily in favor of

{respondent].” Jd. at 3la. But that proves too much. It

effectively holds that whenever a prison regulation

implicates a prisoner’s self-incrimination right, the govern-

ment must offer complete immunity to avoid a constitutional

violation. Turner stands for the opposite proposition—that

prison regulations do not violate the Constitution simply

because they implicate constitutional rights.

— — — — —

25

The Tenth Circuit’s singular focus on the possibility of im-

munization deprived prison officials of the deference that

they are due under Turner. The Tenth Circuit was so con-

vinced of the sensibility of granting immunity that it nakedly

substituted its judgment for that of the relevant state

officials, stating: “We are inclined to believe that prisons

may better accomplish their goal of rehabilitation if they

encourage inmates to admit their sex offenses by granting

immunity or making statements privileged.” Pet. App. 30a.

But decisions concerning whether to immunize prisoner

statements and the scope of confidentiality or im:aunity are

precisely the kind of decisions that state officials, rather than

federal courts, should be making. Although immunization is

always an option in theory, it is not always a realistic or

desirable option in practice. If officials must choose between

immunizing incriminating statements concerning child abuse

and offering effective treatment, treatment goals may suffer.

That is not to say courts should ignore the possibility of

offering immunity in the Turner analysis. But government

decisions as to the scope of confidentiality and immunization,

no less than other decisions that implicate constitutional

interests, should be accorded deference.

The Tenth Circuit’s analysis ignored the substantial con-

fidentiality provided inmates under the SATP, and that the

limitations on that confidentiality are “reasonably related to

legitimate penological interests.” Turner, 482 U.S. at 88.

The SATP broadly grants participants confidentiality for

statements made during treatment. That broad grant of

confidentiality has three principal limits. Participants are

warned at the outset that statements will not remain

confidential to the extent they involve child abuse, “situa-

tions which could be harmful to [the inmate] or others, or a

threat to the orderly operation of the facility.” J. A. 35.

BOP’s own treatment program has three parallel exceptions

to confidentiality. See p. 27, infra.

26

Those exceptions clearly further legitimate penological

and public safety interests. To begin with, the State mani-

festly has an overwhelming interest in preventing and re-

dressing the sexual abuse of children and, accordingly,

numerous States and the federal government make an

exception to patient-therapist privileges for information

relating to child abuse. See Jaffee v. Redmond, 518 U.S. 1,

34 (1996) (Scalia, J., dissenting) (listing state laws); see also

42 C. F. R. 2.22(b)(4) (establishing similar exception for

federally assisted drug and alcohol counseling programs).

Prison officials have an equally obvious interest in re-

dressing threats to individuals within the prison system,

such as ongoing sexual abuse of other inmates. Indeed,

protecting “institutional security and safety” is within the

heartland of legitimate penological concerns. Turner, 482

U.S. at 93. BOP’s treatment program recognizes that and

places similar limits on confidentiality, see p. 27, infra, as do

other federal counseling programs. See 42 C.F.R. 2.22(b)

(information about commission of crimes on premises or

against individuals involved in program must be reported).

When “[o]ther well-run prison systems, including [BOP],

have concluded that substantially similar restrictions on

[confidentiality] were necessary to protect institutional

order and security,” it is clear that blanket immunization is

not a ready or reasonable alternative. Turner, 482 U.S. at 93.

D. If The Court Concludes That The Kansas SATP

Violates The Fifth Amendment, It Should Be Careful

To Avoid Casting Doubt On The Validity Of Other

Treatment Programs

If this Court concludes that the Kansas SATP violates

respondent’s Fifth Amendment rights, we urge it to avoid

casting doubt on the validity of other sexual offender treat-

ment programs, including the federal program, which may

differ in material respects from the program at issue here.

— — ~e

27

BOP’s program is conducted at a single facility in Butner,

North Carolina and has only 112 spaces. The program

“adheres to the notion that * * * criminal sexual behavior

can be effectively managed in most cases through competent

treatment and intensive supervision.” Program Descrip-

tion 1. “[EJach program participant is expected to *

[demonstrate] lelomplete acceptance of responsibility for

his] sexual crime(s).” Jd. at 2. The “confidentiality [of

disclosures] is protected at all times, except in cases where

there is potential harm to self or others, when the security of

the correctional institution is threatened, or when there is

suspected child abuse.” Id. at 3. Inmates are advised of

those limits at the outset, and inmates who choose to partici-

pate in the program must agree to them in writing.

BOP does not condition the availability of institutional

privileges on participation in its treatment program, in

which there are only a limited number of spaces. Inmates

must “volunteer for participation in the treatment program

and demonstrate a commitment to behavioral change.” Pro-

gram Description 3. In addition, BOP seeks only “the most

motivated and psychologically suitable offenders” for treat-

ment. Id. at 1. “[FJailure to achieve treatment goals may

result in programmatic probation or immediate expulsion,”

which may in turn result in the inmate’s transfer to his

“parent facility.” Id. at 3, 4.

Even under the expansive reasoning of the court of

appeals, there is no basis for concluding that the possibility

of such a transfer exerts impermissible compulsion within

the meaning of the Fifth Amendment. No loss of insti-

tutional privileges flows from an inmate’s decision not to

participate in the program. Moreover, the federal goal of

reducing sexual recidivism is undeniably legitimate and

directly promoted by offering this type of treatment to

convicted sexual offenders. In short, the federal program is

clearly constitutional under the Fifth Amendment and

Turner.

Studies increasingly indicate that rehabilitative programs

that promote acceptance of responsibility may enable sexual

offenders to manage their criminal sexual impulses and

thereby reduce sexual recidivism. The Court should leave

correctional officials with the leeway that the Constitution

and our laws afford them to develop and encourage inmate

participation in such commendable treatment efforts.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

STUART E. SCHIFFER

Acting Assistant Attorney

General

PAUL D. CLEMENT

Deputy Solicitor General

GREGORY G. GARRE

Assistant to the Solicitor

General

VICKI MARANI

Attorney -

JULY 2001

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