Amicus Curiae Brief — McKune v. Lile

—_ Suprerve Court, U.S

FILED

: JUL 12 200i

|

OFFICER OF TIE CLARE

No. 00-1187

In The Supreme Court Of The United States

DAVID R. McKUNE, Warden, et al...

Petitioners,

v.

ROBERT G. LILE,

Respondent.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF OF 18 STATES AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

MIKE McGRATH BETTY D. MONTGOMERY

Attorney General of Montana Attorney General of Ohio

JENNIFER ANDERS DAVID M. GORMLEY*

Assistant Attorney General State Solicitor

Justice Building *Counsel of Record

P.O. Box 201401 TODDR. MARTI

Helena, Montana 59620 Assistant Solicitor

(406) 444-2026 30 E. Broad Street, 17th Floor

Columbus, Ohio 43215

(614) 466-8980

Counsel tor Amici States

BILL PRYOR

Attorney General

State of Alabama

JANET NAPOLITANO

Attorney General

State of Arizona

KEN SALAZAR

Attorney General

State of Colorado

M. JANE BRADY

Attorney General

State of Delaware

ROBERT A. BUTTERWORTH

Attorney General

State of Florida

STEVE CARTER

Attorney General

State of Indiana

J. JOSEPH CURRAN, JR.

Attorney General

State of Maryland

THOMAS F. REILLY

Attorney General

Commonwealth of

Massachusetts

DON STENBERG

Attorney General

State of Nebraska

FRANKIE SUE DEL PAPA

Attorney General

State of Nevada

PATRICIA A. MADRID

Attorney General

State of New Mexico

CHARLES M. CONDON

Attorney General

State of South Carolina

MARK L. SHURTLEFF

Attorney General

State of Utah

RANDOLPH A. BEALES

Attorney General

Commonwealth of

Virginia

CHRISTINE O. GREGOIRE

Attorney General

State of Washington

GAY WOODHOUSE

Attorney General

State of Wyoming

QUESTION PRESENTED

Whether the States, consistent with the Fifth

Amendment privilege against self-incrimination, may deny

special privileges to imprisoned sex offenders who refuse to

participate in rehabilitation programs that call for the

offenders to discuss their past sex offenses with prison

counselors.

ii iii

TABLE OF CONTENTS : c. Other Approaches Might

| Adversely Affect The Prison

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| Well Undercut Important

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L. Requiring Offenders To Accept Appendix euccecsessesseesecessescossosessossssesssosssoccesssoosossooosesoseseosesonens la

Responsibility For Their Criminal

Conduct As Part Of A Sex Offender

Treatment Program Does Not

Constitute Compulsion Within The

Meaning Of The Fifth Amendment. .................. 4

ll. The Kansas Program Is Reasonably

Related To Legitimate Penological

RURSUBIBD. cocsecssnsecsssnecesesncosescensnsnsnsensnesnsnosnssnensnens 8

A. The Court Below Improperly

Downplayed The Importance Ot

The State Interests At Stake...................... 9)

B. The Kansas Program Meets

Turner's Four-Part Test. .......... ieee 10

a. The Program Furthers Valid |

Penological Interests. ...........ccccceeeee 1]

b. The Program Does Not

Prevent Prisoners From

Choosing To Remain Silent.............. 12

iV

TABLE OF AUTHORITIES

Cases Page

Baxter v. Palmigiano,

FG OEE 7

Jenkins v. Anderson,

0G )]I———EeEeEe 4

Jones v. North Carolina Prisoners’ Labor Union,

Me eeeEeEEeeeeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEee 9.13

Lile v. McKune,

224 F.3d 1175 (1Oth Cir. 2000) 2000.00... eee ceee eens 9,13

McGautha v. California,

A EE FC

Michigan v. Tucker,

BIT U.S. 434 (1GT4)..ccccccoccsrcccccccecccsscccccccscccsscssosssessees 7

O' Lone v. Shabazz,

0 eee 15

Ohio Adult Parole Authority v. Woodard,

lb) 7 F

Pell v. Procunier.

417 U.S. 817 (1974)........cccccccrrrerrsseererscessserrresssseneees 1]

Procunier v. Martinez,

BOG OS, Si 1 FF Pe i cceccccececcccccsccenssscscsccssscsscssecsscenseses Y

Shaw v. Murphy,

121 S. Ct. 1475 (QOO1 )..........cccercrrcsseerreecessseeeseres 10, 13

v

Thornburgh v. Abbott,

CTT 8

Turner v. Safley,

SE nn eT passim

Washington v. Harper,

RE ANCE Oe 10

Williams v. Florida,

es. SP iicesitiniciiisiidniiiiniiakperiaahiitia daa aa

Wilson v. Seiter,

NSN NE ne 12

Books & Articles

G. Abel, J. Becker, M. Mittlemen,

J. Cunningham-Rathner, J. Rouleau, and

W. Murphy, Self Reported Crimes of Non-

Incarcerated Paraphiliacs, 2 Journal of

Interpersonal Violence 3 (1987). .......ccccccscesseeseeseeeeeees 2. 15

H. Barbaree, Denial and Minimization

Among Sex Offenders: Assessment and

Treatment Outcome, Vol. 3, No. 5, Forum

on Corrections Research 30 (1991) ......ccccccccccccsseeseeeeeeees 1]

L. Berliner & M. Barbieri, The Testimony of

the Child Victim of Sexual Assault, 40 J.

a NT en EO 15

R. Hanson, R. Steffey & R. Gauthier, Long-

term Recidivism of Child Molesters, 61

Journal of Consulting & = Clinical

Pe Pe Ue Picnccntcnnsmnascnnitnvedaditialinpeianaiaiisatees 2

vi

L. Levy, History and Judicial History: The

Case of the Fifth Amendment in

Constitutional Opinions: Aspects of the Bill

of Rights 208 (L. Levy, Cd. 1986) .....cccccccceeereereeeeeeeeeees

R. Summit, The Child Sexual Abuse

Accommodation Syndrome, 7 Child Abuse

and Neglect 177 (1983) ............ccccscsssssrosssrssreressssseseseeses

G. Wyatt, The Sexual Abuse of Afro-

American and White American Women in

Childhood, 9 Child Abuse and Neglect 507

( IDES). ..cccosccscccrcccrcecccccsoscocssosnsvssscconoessssssssssssosoosoososooooooses |

INTEREST OF THE AMICI STATES

The 18 amici States write to urge the Court to reverse

the judgment of the court of appeals. At stake is the States’

reasonable and sincere interest in rehabilitating convicted sex

offenders incarcerated in state prisons, as well as the States’

no-less-legitimate interest in investigating —as-yet-

unprosecuted allegations of child molestation or other sex

offenses.

Child molestation in particular has a devastating

effect on its victims, leaving emotional scars that often far

exceed its very real physical injuries. R. Summit, The Child

Sexual Abuse Accommodation Syndrome, 7 Child Abuse and

Neglect 177 (1983). Sex offenses involving children are

distressingly widespread, with studies suggesting that

between 52 and 64 percent of women are sexually molested

before age eighteen. G. Wyatt, The Sexual Abuse of Afro-

American and White American Women in Childhood, 9 Child

Abuse and Neglect at 507-19 (1985). Because of the depth

and breadth of the problem, all States work hard to prevent

past sex offenders from committing similar crimes in the

future. and also work hard to prosecute those offenders who

have not yet been punished for their crimes.

Unfortunately, the decision below forces state

corrections officials to choose between two of the most

important weapons in that fight. One is the obligation of

public officials — including state corrections officers — to

report to the relevant law enforcement authorities in their

State any information that the officials learn about cases of

suspected child abuse. Precisely because far too many sex

offenses go unreported as it is — particularly those offenses

involving children — many States at least impose that

reporting obligation on those public officials who have

reason to believe that a child has been sexually abused, see

Appendix A, while many of those States likewise permit

5

public officials to report to the police any information that

they learn from any source about past sex crimes involving

adult victims as well.

The other weapon on which most States rely in

combating sex crimes is the kind of forward-looking

treatment program like the one at issue in this case. As in

Kansas, many effective sex offender treatment programs call

for state or other government officials to document each

offender's past sex offenses as part of the process of helping

those offenders move beyond their crimes toward a better

future. And because most official records grossly understate

the extent of an offender's past sexual misdeeds, see

R. Hanson, R. Steffey & R. Gauthier, Long-term Recidivism

of Child Molesters, 61 Journal of Consulting & Clinical

Psychology 646, 650 (1993), the information that offenders

“self-report” is crucial in helping state officials understand

the full scope of each sex offender's past and current

problems as those offenders enter treatment and rehabilitation

programs in state prisons or elsewhere. G. Abel, J. Becker,

M. Mittlemen, J. Cunningham-Rathner, J. Rouleau, and

W. Murphy, Self Reported Crimes of Non-Incarcerated

Paraphiliacs, 2 Journal of Interpersonal Violence 3, 21

(1987).

The Tenth Circuit's approach — barring state officials

from imposing any adverse consequences on those

imprisoned sex offenders who, during the course of prison

sex-offender treatment programs, refuse to discuss their past

offenses — undermines both of the legitimate state interests

described above, and will in many cases force States to’

forego one goal to pursue the other. That approach is not

compelled by the Fifth Amendment, and is inconsistent with

this Court’s decision in Turner v. Safley, 482 U.S. 78 (1987).

Surely the States may ask ihat imprisoned sex

offenders discuss their past sex offenses as part of the

3

rehabilitation process, and may deny special in-prison

privileges to those inmates who refuse to do so. And

certainly the States ought not be forced to undercut their

equally valid interest in deterrence by having to guarantee

that the offenders will never be punished for any as-yet-

unprosecuted sex crimes that the offenders reveal in those

rehabilitation sessions. Because the judgment below is not

compelled by the Constitution, and because it improperly

undercuts the States’ dual interests in punishing sex offenders

for past crimes and in rehabilitating those offenders

effectively to prevent future crimes, the judgment below

should be reversed.

SUMMARY OF ARGUMENT

The States are entitled to operate sex offender

rehabilitation programs that direct imprisoned offenders to

acknowledge their past crimes, for many States have sensibly

concluded that inmates who speak openly about their past

wrongdoing are less likely to commit similar offenses in the

future. When, as in this case, an imprisoned sex offender

refuses for whatever reason to participate in such a

rehabilitation program, the Fifth Amendment's privilege

against self-incrimination does not bar state prison officials

from denying special privileges to the non-participating

inmate. The kind of consequences in question — a transfer to

another prison where television sets are not placed in each

inmate's cell and where the exercise facilities are not readily

available — are simply not ones that can rightly be said to

compel a prisoner to speak about his past crimes despite his

desire to remain silent.

And even were the State’s imposition of those

consequences troubling as a general matter, the fact that they

are imposed on prisoners is critically important in weighing

the constitutional issue raised here. The States face

tremendous challenges in managing their prisons, and often

4

must weigh rehabilitative, punitive and public safety interests

that have few equivalents outside prison walls. As this Court

has said in previous decisions, the States’ prison-

management practices and the interests that support them

deserve considerable deference from the courts. That is

surely true here, where the Kansas sex-offender rehabilitation

program represents a sensible approach to a vexing problem,

and where Kansas has concluded that alternative approaches

like those suggested by the court of appeals will not promote

the State’s interests as effectively as the program now In

place.

ARGUMENT

I. Requiring Offenders To Accept Responsibility For

Their Criminal Conduct As Part Of A Sex

Offender Treatment Program Does Not Constitute

Compulsion Within The Meaning Of The Fifth

Amendment.

The Fifth Amendment of course protects the right of

all citizens to remain silent in the face of questioning from

the government about any past wrongdoing. Just as

certainly, however, the Constitution permits the States to

withhold from their prisoners special privileges — like in-cell

television sets and access to exercise equipment — when those

prisoners refuse to participate in reasonable efforts to

rehabilitate them. And that is true even where, as here, a

State chooses not to grant those special privileges to

convicted sex offenders who choose not to discuss their past

crimes with prison counselors.

This Court has long held that the government need

not make the exercise of the Fifth Amendment privilege cost-

free. See, e.g., Jenkins v. Anderson, 447 U.S. 231, 238

(1980) (a criminal defendant’s exercise of his Fifth

Amendment privilege prior to arrest may be used to impeach

his credibility at trial); McGautha v. California, 402 U.S.

183, 217 (1971) (the Fifth Amendment is not violated when

“a defendant in a capital case yields to the pressure to testify

on the issue of punishment at the risk of damaging his case

on guilt”) Williams v. Florida, 399 U.S. 78, 84-85 (1970) (a

criminal defendant may be compelled to disclose the

substance of an alibi defense prior to trial or be barred from

asserting it).

And in civil proceedings, the government does not

“offend[{] the Fifth Amendment” when it “draw{s] adverse

inferences” from a person’s “refusal to answer questions.”

Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 286

(1998) (unanimously rejecting Fifth Amendment challenge to

State’s voluntary clemency interview process). Just as Ohio

gave the prisoner in that case the “choice . . . [between]

providing information . . . at the risk of damaging his case for

clemency” on the one hand, and “remaining silent” on the

other, id. at 287-88, so in this case, Kansas has simply given

its imprisoned sex offenders the option either to provide

information about past offenses during _ in-prison

rehabilitation sessions (thereby perhaps triggering future

criminal prosecutions for newly-revealed wrongdoing), or to

remain silent (thereby perhaps causing prison officials to

“draw adverse inferences,” id.- at 286, and in turn revoke

from the silent prisoner some of the special privileges that

other prisoners enjoy).

Prisoners, criminal defendants, and ordinary citizens

make choices all the time in their dealings with the

government. As the Court explained in McGautha, “[t}he

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 right, even of constitutional dimensions, to follow

whichever course he chooses, the Constitution does not by

6

that token always forbid requiring him to choose.”

McGautha v. California, 402 U.S. at 213 (citation and

quotations omitted).

The critical questions are these: Has Kansas

compelled its prisoners to incriminate themselves, and is the

consequence of a prisoner’s refusal to discuss his past

offenses so severe that the prisoner has little choice but to

speak? The answer to both questions is No.

On the issue of compulsion, Kansas of course does

not compel anything. To be sure, convicted sex offenders

confined in state custody in Kansas and elsewhere are

expected to participate in some rehabilitative activities when

told to do so by court order, by state law or by a directive

from prison officials. But prisoners like the respondent in

this case can certainly refuse to so participate. No officials

torture them, beat them or otherwise insist that the prisoners

talk. Prisoners retain a choice on the issue, and no actions of

state officials run afoul of the “torture, bullying and

imprisonment for contempt” concerns that the Fifth

Amendment’s Framers sought to allay. See L. Levy, History

and Judicial History: The Case of the Fifth Amendment in

Constitutional Opinions: Aspects of the Bill of Rights 208 (L.

Levy, ed. 1986).

As for the consequences of a prisoner’s silence during

the kind of sex-offender rehabilitation sessions like the one at

issue here, Kansas officials simply transfer the uncooperative

inmate to another prison, where his access to a television, to

prison activities, and to a gymnasium are lost. Even the court

of appeals agreed that those consequences do not include a

lengthier prison sentence or a new criminal conviction. The

consequences that fall on a sex offender who refuses to

discuss his past offenses flow from his unwillingness to

participate in an activity that prison officials deem important.

for the inmate’s — and the community’s — long term well-

-

being. No one orders the prisoner to confess his crimes, to

make incriminating statements under oath, or to serve a

longer time in custody. The government's actions simply

deprive him of particular privileges enjoyed by inmates who

do participate in the rehabilitation program that the prison

sensibly hopes to promote.

The States’ interest in facilitating the rehabilitation of

their incarcerated sex offenders is undeniable. This Court

itself has recognized that an admission of guilt, if not

coerced, advances the goals of both justice and rehabilitation.

Michigan y. Tucker, 417 U.S. 434, 448, n.23 (1974). The

Court has further acknowledged the important differences

between prison disciplinary proceedings on the one hand and

criminal prosecutions on the other. Baxter v. Palmigiano,

425 U.S. 308, 318-19 (1976). Given the minimal

consequences here, this case surely falls in the former

category.

Just as the death-row prisoner in Woodard could

choose whether to speak at the Voluntary clemency interview

at issue in that case, 523 U.S. at 286, so the prisoner in this

case is free to choose whether to speak at the prison

rehabilitation sessions when he is asked to open up about his

past sexual history. Those choices of course carry

consequences — in Woodard, the potential impact of the

prisoner’s statement or silence on the Governor’s decision

whether to spare his life, and in this case, the possibility that

a statement about past uncharged offenses might lead to new

penalties, and the likelihood that silence might lead to

reduced privileges — but defendants remain free to make the

choice that seems best for them.

Even the sex offender who has the most to lose by

speaking (presumably because he fears revealing a string of

past offenses for which he has never been prosecuted or

punished), can sensibly choose — like the respondent in this

8

case — to sit silent during the rehabilitation sessions. The

resulting consequences that he then faces are simply not the

type of potent sanction that the Fifth Amendment is designed

to guard against. The judgment of the court of appeals on the

Fifth Amendment issue should be reversed.

Il. The Kansas Program Is Reasonably Related To

Legitimate Penological Interests.

Even if the mild adverse consequences that the

respondent has challenged in this case are incompatible with

general Fifth Amendment principles, Kansas and other States

should be entitled to impose those consequences in the

unique and limited setting in which they apply: amongst

convicted and imprisoned criminals. Under Turner v. Safley,

482 U.S. 78 (1987), courts are to give considerable deference

to the States’ legitimate penological interests when prisoners

raise constitutional claims, even if those claims “would raise

grave . . . concerns outside the prison context.” Thornburgh

v. Abbott, 490 U.S. 401, 407 (1989). The decision below

failed to follow Turner's rule of deference in several specific

ways. ,

First, the court of appeals placed undue emphasis on

the nature of the right asserted, applying Turner in a half-

hearted way that is at odds with both Turner itself and with

later cases. The court of appeals also misapplied Turner's

four-part test, equating the constitutionally insignificant

consequences at issue here with the outright denial of a

constitutional right, reversing the applicable burden of proof

and ignoring the very heavy costs that judicially imposed

alternatives would exact on the States’ penological

objectives.

Because the court of appeals was “inclined to believe

that prisons may better accomplish their goal of

rehabilitation” in some other way besides the route chosen by

9

Kansas, Lile v. McKune, 224 F.3d 1175, 1192 (10th Cir,

2000), that court stuck down a practice that the States ought

to be free to follow. The appellate court's approach runs

afoul of Turner's core precept that “prison administrators . . .

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

about the best ways to run our nation’s prisons. Turner, 482

U.S. at 89 (quoting Jones vy. North Carolina Prisoners’

Labor Union, 433 U.S. 119, 128 (1977)).

A. The Court Below Improperly Downplayed

The Importance Of The State Interests At

Stake.

The court below candidly admitted that the “real”

basis for its non-deferential application of Turner was “the

seriousness with which we have always treated the Fifth

Amendment right against self incrimination.” Lile, 224 F.3d

at 1192. While there is no disputing the importance of that

right, the equally indisputable underpinning of Turner — the

immense challenge that the States face every day in running

their prisons — requires that Turner be applied dutifully

regardless of the constitutional right in question.

The Turner test of course rests on the reality that

incarcerating and rehabilitating prisoners is an “inordinately

difficult undertaking that requires expertise, planning, and

the commitment of resources, all of which are peculiarly

within the province of the legislative and executive branches

of government.” Turner, 482 U.S. at 85. Because those

“Herculean” tasks “are complex and intractable.” Procunier

v. Martinez, 416 U.S. 396, 404-05 (1974), and because

“courts . . . are not equipped by experience or otherwise to

‘second guess’ the decisions of state legislatures and

administrators in this sensitive area,” Jones, 433 U.S. at 137

(Burger, C.J., concurring), Turner requires great deference to

correctional officials’ informed opinions of what is necessary

to effectively accomplish what society expects of them.

10

Those realities are not changed by the nature of the

constitutional right asserted by any given prisoner, and

therefore “Turner applies to all circumstances in which the

needs of prison administration implicate constit.tional

rights.” Washington v. Harper, 494 U.S. 210, 224 (1990)

(emphasis added). The Court reiterated that view just last

Term. See Shaw v. Murphy, 121 S. Ct. 1475, 1479 (2001)

(“Turner . . . set{) a unitary, deferential standard for

reviewing prisoners’ claims”). That standard applies “even

when the constitutional right claimed to have been infringed

is fundamental, and the State under other circumstances

would have been required to satisfy a more rigorous standard

of review.” Washington, 494 U.S. at 223.

In short, Turner is based on the practical demands of

the -correctional mission, not on a court’s view of the

importance of the right asserted. Those operational demands

are consistently formidable regardless of the legal issues they

generate. Common sense and this Court's teachings require

that the States’ management of their prisons must therefore

be evaluated in a consistently deferential manner.

B. The Kansas Program Meets Turner’s Four-

Part Test.

Turner calls for courts to examine four factors when

weighing whether a prison regulation is “reasonably related

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

Those factors are (1) whether the regulation is rationally tied

to such an interest, (2) whether prisoners enjoy alternate

means to exercise the restricted right, (3) the effect on

guards, other inmates and prison resources if the regulation is

abandoned, and (4) the existence of alternatives that might

accommodate the prisoner's right without unduly hampering

the State’s valid penological interests. Turner, 482 U.S. 89-

91. Each of the Turner factors decidedly supports the mild

incentives implemented by Kansas to promote sex offender

rehabilitation.

a. The Program Furthers Valid

Penological Interests.

The regulation at issue is reasonably related to two

valid penological interests: rehabilitation and deterrence of

crime.

The rehabilitation of convicted sex offenders is of

course a legitimate and pressing interest of the States. Many

of the States, like Kansas, work to confront the ongoing cycle

of violence to which many sex offenders are prone by asking

those offenders to themselves confront and discuss openly

their past behavior. “Denial is generally regarded as a main

impediment to successful therapy,” and “[t}herapists depend

on offenders’ truthful descriptions ef events leading to past

offenses in order to determine which behaviors need to be

targeted in therapy.” H. Barbaree, Denial and Minimization

Among Sex Offenders: Assessment and Treatment Outcome,

Vol. 3, No. 5, Forum on Corrections Research 30 (1991),

The Kansas program at issue here furthers the State's

rehabilitative goal by calling for prisoners to give the kind of

complete and truthful answers that successful therapy

programs demand.

And although often overlooked, deterrence also is

“[a]n important function of the corrections system.” Pell v.

Procunier, 417 U.S. 817, 822 (1974). By subjecting

offenders to prosecution for newly-revealed offenses, and by

adhering to its chosen policy of mandatory reporting for

cases of suspected child sexual abuse, Kansas reinforces the

sensible notion that wrongdoing carries consequences.

1?

=

b. The Program Does Not Prevent

Prisoners From Choosing To Remain

Silent.

The second Turner factor asks whether “other

avenues remain available for the exercise of the asserted

right.” Turner, 482 U.S. at 90 (quotations omitted). The

court below concluded that no such alternatives exist for the

respondent prisoner to exercise his Fifth Amendment right.

That analysis is flawed in two important respects.

First, it overstates the effect of the Kansas

rehabilitation program on the right of prisoners to remain

silent. The Kansas program — like many similar programs

across the country — does not compel prisoners to testify

against themselves. Those programs do not subject

uncooperative prisoners to any penalties beyond the scope of

their lawfully imposed sentences, but instead simply deny

special privileges to those prisoners who choose not to

participate. Prisoners may maintain their silence if they so

chose, and if they do so, they merely lose certain privileges

to which they never had any entitlement in the first place.

Second, the court of appeals ignored this Court's

words describing the degree of accommodation that is

required. “The Constitution, we said, ‘does not mandate

comfortable prisons,” . . . and only those deprivations

denying ‘the minimal civilized measure of life's necessities,

. are sufficiently grave” so as to offend its principles.

Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quoting Rhodes

v. Chapman, 452 U.S. 337, 349, 347 (1981)). No one claims

that the respondent would be subject to anything approaching

that constitutional floor under the Kansas offender-

rehabilitation program. That the choices an offender faces

under the Kansas system might be “‘unimpressive’ if offered

to justify a restriction on . .. members of the general public

13

is irrelevant, because prisoners and prison life are simply

different than life on the outside. Turner, 482 U.S. at 88

(quoting Pell, 417 U.S. at 825). Given those precepts, the

court of appeals wrongly equated the withholding of prison

privileges with a complete denial of the Fifth Amendment

privilege, and wrongly faulted Kansas for giving prisoners

the choices that are available to them in this situation.

c. Other Approaches Might Adversely

Affect The Prison Environment.

Although the court of appeals devoted little analysis

to Zurner’s third factor, that decision calls for consideration

of “the impact accommodation of the asserted constitutional

right will have on guards and other inmates.” Turner, 482

U.S. at 90. The court below did not address that impact as it

should have.

Procedurally, the court below minimized the third

Turner factor, saying that it saw “no evidence that

accommodation of the right would have any negative effect.”

Lile, 224 F.3d at 1191. Yet any lack of proof on the impact

of accommodating the respondent prisoner's Fifth

Amendment claim actually supports, rather than undermines,

the approach that Kansas and other States have adopted.

Both before and after Turner, the Court has explained that

the burden of proof concerning the impact of prison

regulations that affect prisoner rights is on the affected

prisoner or prisoners, not on the State. See Shaw v. Murphy.

121 S. Ct. at 1481 (“[ujnder Turner.” prisoners “must

overcome the presumption that the prison officials acted

within their ‘broad discretion’”); Jones v. North Carolina

Prisoners’ Labor Union, 433 U.S. at 128 (“the burden [i]s

not on [corrections officials] . . . to show affirmatively that

the [disputed matter] . . . would be detrimental to proper

penological objectives or would constitute a present danger

to security and order’) (quotations omitted).

14

Substantively, the accommodation suggested by the

court of appeals — granting immunity to prisoners for any

statements that they make during sex-offender rehabilitation

sessions — could very well disrupt prison operations

significantly by exacerbating tensions between sex offenders

and other inmates. Granting sex offenders immunity for their

statements about what are in many cases very serious crimes

would give them a benefit not given to other inmates, That

special treatment would not go unnoticed by other inmates,

and the resulting tensions would likely add to the difficulties

that the States face in managing an already volatile

environment. Blanket immunity would, in effect, force

officials to chose between two conflicting imperatives:

promoting effective rehabilitation and maintaining internal

security. “Where exercise of a right requires that kind of

tradeoff, .. . the choice made by corrections officials — which

is, after all, a judgment ‘peculiarly within [their] province

and professional expertise’ . . . — should not be lightly set

aside by the courts.” Turner, 482 U.S. at 92-93 (quoting

Pell, 417 U.S. at 827).

d. Other Approaches Could Well

Undercut Important State Interests.

~The final Turner factor looks to the availability of

ready alternatives that will impose little cost to the State's

objectives while accommodating the prisoner's rights.

Turner, 482 U.S. at 90-91. “This is not a ‘least restrictive

alternative’ test,” and such alternatives only exist if they

“fully accommodate] the prisoner's rights at de minimis cost

to valid penological interests.” /d. at 91.

The use-immunity alternative suggested by the court

of appeals would in fact exact a significant cost by requiring

the States to compromise their “valid penological

objectives.” which include “deterrence of crime,

15

rehabilitation of prisoners and institutional security.”

O'Lone v. Shabazz, 482 U.S. 342, 348 (1987). State officials

must rely in large part on “[sJelf-reportied| information” in

rehabilitating sex offenders, because arrest records alone

typically do not provide a true picture about a sex offender's

history of violence. G. Abel, J. Becker, M. Mittlemen,

J. Cunningham-Rathner, J. Rouleau, and W. Murphy, Self

Reported Crimes of Non-lncarcerated Paraphiliacs, 2

Journal of Interpersonal Violence 3, 21 (1987). Yet granting

use immunity to offenders who self-report previously

unprosecuted crimes could very well frustrate the States’

important interest in deterring criminal sexual conduct.

The strength of the States’ interest in deterrence-

through-punishment is reflected in the fact that every State

has enacted statutes requiring that all cases of suspected

child molestation be reported for prosecution when

discovered, See Appendix A. Granting use immunity to sex

offenders who reveal previously unreported or unprosecuted

instances of child sexual abuse would cut the legs out from

under those statutes, for without the testimony of the offender

himself, the uncorroborated testimony of a child victim is

often not enough to secure a conviction. “There are seldom

other witnesses or corroborating physical evidence.” and “the

crime usually involves many separate acts occurring over a

period of time,” making “accurate reporting of the sequence

of events a difficult task for a child.” L. Berliner & M.

Barbieri, The Testimony of the Child Victim of Sexual

Assault, 40 J. Soc. Issues 125, 129 (1984).

In short, the alternative approach offered by the court

of appeals would require Kansas to choose between two of its

most powertul weapons in the fight against the sexual abuse

of children: effective rehabilitation and effective prosecution.

That alternative would compel Kansas to fight the sexual

abuse of it most vulnerable citizens with one hand tied

behind its back, and would plainly impose more than a “de

16

minimis cost to valid penological interests.” Turner, 482 APPENDIX

at C ,

U.S. at 91. State Statues That Impose A Duty On

CONCLUSION State Officials Or Others To Report

. Suspected Child Sexual Abuse To

For the foregoing reasons, the judgment of the court Law Enforcement Authorities

of appeals should be reversed.

July 2001

Respectfully submitted,

MIKE McGRATH

Attorney General of Montana

JENNIFER ANDERS

Assistant Attorney General

BETTY D. MONTGOMERY

Attorney General of Ohio

DAVID M. GORMLEY*

State Solicitor

*Counsel of Record

TODD R. MARTI

Assistant Solicitor

Ala.Code §26-14-3

Alaska Stat. §47.17.020

Ar’z, Rev. Stat. § 13-3620

Arkansas Code §12-12-507

Cal. Penal Code §§11165.9

Col. Rev. Stat. Ann. §19-3-304

Conn. Gen. Stat. §17a-101

16 Del. Code Ann. §903

Fla. Stat. §39.201

Georgia Code §19-7-5

Hawaii Rev. Stat. §350-1.|

Idaho Code §16-1619

325 Ill. Comp. Stat. 5/4

Indiana Code Ann. §31-33-5-]

lowa Code §232.69

Kansas Stat. Ann.§38-1522

Ky. Rev. Stat. §620.030

La. Children’s Code Art. 609

22 Maine Rev. Stat. §401 |

Md. Fam. Law Code §5-705

Mass. Ann. Laws ch. 119 §51A

Mich. Comp. Laws §722.623

Minn. Stat. §626.556

Miss. Code §43-21-353

Rev. Stat. Mo. 210.115

Montana Code Ann. 41-3-201

Neb. Rev. Stat. §28-71 1

Nevada Rev. Stat. §432B.220

N.H. Rev. Stat. §169-c¢:29

2a

N.J. Stat. §9:6-8.10

N.M. Stat. Ann. §32A-4-3

N.Y. Cons. Social Services Law §413

N.C. Gen. Stat. §7B-301

N.D. Cent. Code §50-25.1-03

Ohio Rev. Code §2151.421

10 Okla. Stat. §7103

Ore. Rev. Stat. §419B.010

23 Pa.C.S. $6311

R.I. Gen. Laws §40-11-3

S.C. Code §20-7-510

S.D. Cod. Laws §26-8A-3

Tenn. Code Ann. §37-1- 403

Tex. Fam. Code §261.101 ats

Utah Code Ann. §62A-4a-403

33 Vt. Stat. Ann. §4913

Va. Code Ann. §63.1-248.3

Wa. Rev. Code §26.44.030

W.Va. Code §49-6A-2

Wis. Stat. §48.981

Wyo. Stat. §14-3-205

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