McKUNE, WARDEN, ET AL. v. LILE
No. 00-1187
Supreme Court of the United States
Argued November 28, 2001—Decided June 10, 2002
536 U.S. 24
Stephen R. McAllister, State Solicitor of Kansas, argued the cause for petitioners. With him on the briefs were Carla J. Stovall, Attorney General, Jared S. Maag, and Timothy G. Madden.
Gregory G. Garre argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Acting Assistant Attorney General Schiffer, Deputy Solicitor General Clement, and Vicki Marani.
Matthew J. Wiltanger argued the cause for respondent. With him on the brief was Paul W. Rebein.*
*A brief of amici curiae urging reversal was filed for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, David M. Gormley, State Solicitor, Todd R. Marti, Assistant Solicitor, Mike McGrath, Attorney General of Montana, Jenifer Anders, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Janet Napolitano of Arizona, Ken Salazar of Colorado, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Steve Carter of Indiana, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Patricia A. Madrid of New Mexico, Charles M. Condon of South Carolina, Mark L. Shurtleff of Utah, Randolph A. Beales of Virginia, Christine O. Gregoire of Washington, and Gay Woodhouse of Wyoming.
Respondent Robert G. Lile is a convicted sex offender in the custody of the Kansas Department of Corrections (Department). A few years before respondent was scheduled to reenter society, Department officials recommended that he enter a prison treatment program so that he would not rape again upon release. While there appears to be some difference of opinion among experts in the field, Kansas officials and officials who administer the United States prison system have made the determination that it is of considerable importance for the program participant to admit having committed the crime for which he is being treated and other past offenses. The first and in many ways most crucial step in the Kansas rehabilitation program thus requires the participant to confront his past crimes so that he can begin to understand his own motivations and weaknesses. As this initial step can be a most difficult one, Kansas offers sex offenders incentives to participate in the program.
Respondent contends this incentive system violates his Fifth Amendment privilege against self-incrimination. Kansas’ rehabilitation program, however, serves a vital penological purpose, and offering inmates minimal incentives to participate does not amount to compelled self-incrimination prohibited by the Fifth Amendment.
I
In 1982, respondent lured a high school student into his car as she was returning home from school. At gunpoint, respondent forced the victim to perform oral sodomy on him
In 1994, a few years before respondent was scheduled to be released, prison officials ordered him to participate in a Sexual Abuse Treatment Program (SATP). As part of the program, participating inmates are required to complete and sign an “Admission of Responsibility” form, in which they discuss and accept responsibility for the crime for which they have been sentenced. Participating inmates also are required to complete a sexual history form, which details all prior sexual activities, regardless of whether such activities constitute uncharged criminal offenses. A polygraph examination is used to verify the accuracy and completeness of the offender‘s sexual history.
While information obtained from participants advances the SATP‘s rehabilitative goals, the information is not privileged. Kansas leaves open the possibility that new evidence might be used against sex offenders in future criminal proceedings. In addition, Kansas law requires the SATP staff to report any uncharged sexual offenses involving minors to law enforcement authorities. Although there is no evidence that incriminating information has ever been disclosed under the SATP, the release of information is a possibility.
Department officials informed respondent that if he refused to participate in the SATP, his privilege status would be reduced from Level III to Level I. As part of this reduc-
Respondent refused to participate in the SATP on the ground that the required disclosures of his criminal history would violate his Fifth Amendment privilege against self-incrimination. He brought this action under
After the parties completed discovery, the United States District Court for the District of Kansas entered summary judgment in respondent‘s favor. 24 F. Supp. 2d 1152 (1998). The District Court noted that because respondent had testified at trial that his sexual intercourse with the victim was consensual, an acknowledgment of responsibility for the rape on the “Admission of Guilt” form would subject respondent to a possible charge of perjury. Id., at 1157. After reviewing the specific loss of privileges and change in conditions of confinement that respondent would face for refusing to incriminate himself, the District Court concluded that these consequences constituted coercion in violation of the Fifth Amendment.
The Court of Appeals for the Tenth Circuit affirmed. 224 F. 3d 1175 (2000). It held that the compulsion element of a Fifth Amendment claim can be established by penalties that do not constitute deprivations of protected liberty interests under the Due Process Clause. Id., at 1183. It held that the reduction in prison privileges and housing accommodations was a penalty, both because of its substantial impact
We granted the warden‘s petition for certiorari because the Court of Appeals has held that an important Kansas prison regulation violates the Federal Constitution. 532 U. S. 1018 (2001).
II
Sex offenders are a serious threat in this Nation. In 1995, an estimated 355,000 rapes and sexual assaults occurred nationwide. U. S. Dept. of Justice, Bureau of Justice Statistics, Sex Offenses and Offenders 1 (1997) (hereinafter Sex Offenses); U. S. Dept. of Justice, Federal Bureau of Investigation, Crime in the United States, 1999, Uniform Crime Reports 24 (2000). Between 1980 and 1994, the population of imprisoned sex offenders increased at a faster rate than for any other category of violent crime. See Sex Offenses 18. As in the present case, the victims of sexual assault are most often juveniles. In 1995, for instance, a majority of reported forcible sexuаl offenses were committed against persons under 18 years of age. University of New Hampshire, Crimes Against Children Research Center, Fact Sheet 5; Sex Offenses 24. Nearly 4 in 10 imprisoned violent
When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault. See id., at 27; U. S. Dept. of Justice, Bureau of Justice Statistics, Recidivism of Prisoners Released in 1983, p. 6 (1997). States thus have a vital interest in rehabilitating convicted sex offenders.
Therapists and correctional officers widely agree that clinical rehabilitative programs can enable sex offenders to manage their impulses and in this way reduce recidivism. See U. S. Dept. of Justice, Nat. Institute of Corrections, A Practitioner‘s Guide to Treating the Incarcerated Male Sex Offender xiii (1988) (“[T]he rate of recidivism of treated sex offenders is fairly consistently estimated to be around 15%,” whereas the rate of recidivism of untreated offenders has been estimated to be as high as 80%. “Even if both of these figures are exaggerated, there would still be a significant difference between treated and untreated individuals“). An important component of those rehabilitation programs requires participants to confront their past and accept responsibility for their misconduct. Id., at 73. “Denial is generally regarded as a main impediment to successful therapy,” and “[t]herapists depend on offenders’ truthful descriptions of events leading to past offences in order to determine which behaviours need to be targeted in therapy.” H. Barbaree, Denial and Minimization Among Sex Offenders: Assessment and Treatment Outcome, 3 Forum on Corrections Research, No. 4, p. 30 (1991). Research indicates that offenders who deny all allegations of sexual abuse are three times more likely to fail in treatment than those who admit even partial complicity. See B. Maletzky & K. McGovern, Treating the Sexual Offender 253-255 (1991).
The critical first step in the Kansas SATP, therefore, is acceptance of responsibility for past offenses. This gives inmates a basis to understand why they are being punished
The District Court found that the Kansas SATP is a valid “clinical rehabilitative program,” supported by a “legitimate penological objective” in rehabilitation. 24 F. Supp. 2d, at 1163. The SATP lasts for 18 months and involves substantial daily counseling. It helps inmates address sexual addiction; understand the thoughts, feelings, and behavior dynamics that precede their offenses; and develop relapse prevention skills. Although inmates are assured of a significant level of confidentiality, Kansas does not offer legal immunity from prosecution based on any statements made in the course of the SATP. According to Kansas, however, no inmate has ever been charged or prosecuted for any offense based on information disclosed during treatment. Brief for Petitioners 4-5. There is no contention, then, that the program is a mere subterfuge for the conduct of a criminal investigation.
As the parties explain, Kansas’ decision not to offer immunity to every SATP participant serves two legitimate state interests. First, the professionals who design and conduct the program have concluded that for SATP participants to accept full responsibility for their past actions, they must accept the proposition that those actions carry consequences. Tr. of Oral Arg. 11. Although no program participant has ever been prosecuted or penalized based on information revealed during the SATP, the potential for additional punishment reinforces the gravity of the participants’ offenses and thereby aids in their rehabilitation. If inmates know society will not punish them for their past offenses, they may be left with the false impression that society does not consider those crimes to be serious ones. The practical effect of guaran-
Second, while Kansas as a rule does not prosecute inmates based upon information revealed in the course of the program, the State confirms its valid interest in deterrence by keeping open the option to prosecute a particularly dangerous sex offender. Brief for 18 States as Amici Curiae 11. Kansas is not alone in declining to offer blanket use immunity as a condition of participation in a treatment program. The Federal Bureau of Prisons and other States conduct similar sex offender programs and do not offer immunity to the participants. See, e. g., Ainsworth v. Risley, 244 F. 3d 209, 214 (CA1 2001) (describing New Hampshire‘s program).
The mere fact that Kansas declines to grant inmates use immunity does not render the SATP invalid. Asking at the outset whether prison administrators can or should offer immunity skips the constitutional inquiry altogether. If the State of Kansas offered immunity, the self-incrimination privilege would not be imрlicated. See, e. g., Kastigar v. United States, 406 U. S. 441, 453 (1972); Brown v. Walker, 161 U. S. 591, 610 (1896). The State, however, does not offer immunity. So the central question becomes whether the State‘s program, and the consequences for nonparticipation in it, combine to create a compulsion that encumbers the constitutional right. If there is compulsion, the State cannot continue the program in its present form; and the alternatives, as will be discussed, defeat the program‘s objectives.
The SATP does not compel prisoners to incriminate themselves in violation of the Constitution. The Fifth Amendment Self-Incrimination Clause, which applies to the States via the Fourteenth Amendment, Malloy v. Hogan, 378 U. S. 1 (1964), provides that no person “shall be compelled in any criminal case to be a witness against himself.” The “Amendment speaks of compulsion,” United States v. Monia,
The privilege against self-incrimination does not terminate at the jailhouse door, but the fact of a valid conviction and the ensuing restrictions on liberty are essential to the Fifth Amendment analysis. Sandin v. Conner, 515 U. S. 472, 485 (1995) (“[L]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system” (citation and internal quotation marks omitted)). A broad range of choices that might infringe constitutional rights in a free society fall within the expected conditions of confinement of those who have suffered a lawful conviction.
The Court has instructed that rehabilitation is a legitimate penological interest that must be weighed against the exercise of an inmate‘s liberty. See, e. g., O‘Lone v. Estate of Shabazz, 482 U. S. 342, 348, 351 (1987). Since “most offenders will eventually return to society, [a] paramount objective of the corrections system is the rehabilitation of those committed to its custody.” Pell v. Procunier, 417 U. S. 817, 823 (1974). Acceptance of responsibility in turn demonstrates that an offender “is ready and willing to admit his crime and to enter the correctional system in a frame of mind that affords hope for success in rehabilitation over a shorter period
The limitation on prisoners’ privileges and rights also follows from the need to grant necessary authority and capacity to federal and state officials to administer the prisons. See, e. g., Turner v. Safley, 482 U. S. 78 (1987). “Running a prison 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.” Id., at 84-85. To respect these imperatives, courts must exercise restraint in supervising the minutiae of prison life. Ibid. Where, as here, a state penal system is involved, federal courts have “additional reason to accord deference to the appropriate prison authorities.” Ibid.
For these reasons, the Court in Sandin held that challenged prison conditions cannot give rise to a due process violation unless thоse conditions constitute “atypical and significant hardship[s] on [inmates] in relation to the ordinary incidents of prison life.” See 515 U. S., at 484. The determination under Sandin whether a prisoner‘s liberty interest has been curtailed may not provide a precise parallel for determining whether there is compelled self-incrimination, but it does provide useful instruction for answering the latter inquiry. Sandin and its counterparts underscore the axiom that a convicted felon‘s life in prison differs from that of an ordinary citizen. In the context of a legitimate rehabilitation program for prisoners, those same considerations are relevant to our analysis. The compulsion inquiry must consider the significant restraints already inherent in prison life and the State‘s own vital interests in rehabilitation goals and procedures within the prison system. A prison clinical rehabilitation program, which is acknowledged to bear a rational relation to a legitimate penological objective, does not violate the privilege against self-incrimination if the adverse
Along these lines, this Court has recognized that lawful conviction and incarceration necessarily place limitations on the exercise of a defendant‘s privilege against self-incrimination. See, e. g., Baxter v. Palmigiano, 425 U. S. 308 (1976). Baxter declined to extend to prison disciplinary proceedings 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 319-320. As the Court explained, “[d]isciplinary proceedings in state prisons ... involve the correctional proсess and important state interests other than conviction for crime.” Id., at 319. The inmate in Baxter no doubt felt compelled to speak in one sense of the word. The Court, considering the level of compulsion in light of the prison setting and the State‘s interests in rehabilitation and orderly administration, nevertheless rejected the inmate‘s self-incrimination claim.
In the present case, respondent‘s decision not to participate in the Kansas SATP did not extend his term of incarceration. Nor did his decision affect his eligibility for good-time credits or parole. 224 F. 3d, at 1182. Respondent instead complains that if he remains silent about his past crimes, he will be transferred from the medium-security unit—where the program is conducted—to a less desirable maximum-security unit.
No one contends, however, that the transfer is intended to punish prisoners for exercising their Fifth Amendment rights. Rather, the limitation on these rights is incidental to Kansas’ legitimate penological reason for the transfer: Due to limited space, inmates who do not participate in their respective programs will be moved out of the facility where the programs are held to make room for other inmates. As the Secretary of Corrections has explained, “it makes no
It is well settled that the decision where to house inmates is at the core of prison administrators’ expertise. See Meachum v. Fano, 427 U. S. 215, 225 (1976). For this reason the Court has not required administrators to conduct a hearing before transferring a prisoner to a bed in a different prisоn, even if “life in one prison is much more disagreeable than in another.” Ibid. The Court has considered the proposition that a prisoner in a more comfortable facility might begin to feel entitled to remain there throughout his term of incarceration. The Court has concluded, nevertheless, that this expectation “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. This logic has equal force in analyzing respodent‘s self-incrimination claim.
Respondent also complains that he will be demoted from Level III to Level I status as a result of his decision not to participate. This demotion means the loss of his personal television; less access to prison organizations and the gym area; a reduction in certain pay opportunities and canteen privileges; and restricted visitation rights. App. 27-28. An essential tool of prison administration, however, is the authority to offer inmates various incentives to behave. The Constitution accords prison officials wide latitude to bestow or revoke these perquisites as they see fit. Accordingly, Hewitt v. Helms, 459 U. S. 460, 467, n. 4 (1983), held 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, educational, recreational, and rehabilitative programs.” Respondent concedes that no liberty interest is implicated in this case. Tr. of Oral Arg. 45. To be sure, cases like Meachum and
Respondent fails to cite a single case from this Court holding that the denial of discrete prison privileges for refusal to participate in a rehabilitation program amounts to unconstitutional compulsion. Instead, relying on the so-called penalty cases, respondent treats the fact of his incarceration as if it were irrelevant. See, e. g., Garrity v. New Jersey, 385 U. S. 493 (1967); Spevack v. Klein, 385 U. S. 511 (1967). Those cases, however, involved free citizens given the choice between invoking the Fifth Amendment privilege and sustaining their economic livelihood. See, e. g., id., at 516 (“[T]hreat of disbarment and the loss of professional standing, professional reputation, and of livelihood are powerful forms of compulsion“). Those principles are not easily extended to the prison context, where inmates surrender upon incarceration their rights to pursue a livelihood and to contract freely with the State, as well as many other basic freedoms. The persons who asserted rights in Garrity and Spevack had not been convicted of a crime. It would come as a surprise if Spevack stands for the proposition that when a lawyer has been disbarred by reason of a final criminal conviction, the court or agency considering reinstatement of the right to practice law could not consider that the disbarred attorney has admitted his guilt and expressed contrition. Indeed, this consideration is often given dispositive weight by this Court itself on routine motions for reinstatement. The current case is more complex, of course, in that respondent is also required to discuss other criminal acts for which he might still be liable for prosecution. On this point, however, there is still a critical distinction between the instant case and Garrity or Spevack. Unlike those cases,
To reject out of hand these considerations would be to ignore the State‘s interests in offering rehabilitation programs and providing for the efficient administration of its prisons. There is no indication that the SATP is an elaborate attempt to avoid the protections offered by the privilege against compelled self-incrimination. Rather, the program serves an important social purpose. It would be bitter medicine to treat as irrelevant the State‘s legitimate interests and to invalidate the SATP on the ground that it incidentally burdens an inmate‘s right to remain silent.
Determining what constitutes unconstitutional compulsion involves a question of judgment: Courts must decide whether the consequences of an inmate‘s choice to remain silent are closer to the physical torture against which the Constitution clearly protects or the de minimis harms against which it does not. The Sandin framework provides a reasonable means of assessing whether the response of prison administrators to correctional and rehabilitative necessities are so out of the ordinary that one could sensibly say they rise to the level of unconstitutional compulsion.
Prison context or not, respondent‘s choice is marked less by compulsion than by choices the Court has held give no rise to a self-incrimination claim. The “criminal process, like the rest of the legal system, is replete with situations requiring the making of difficult judgments as to which course to follow. Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose.” McGautha v. California, 402 U. S. 183, 213 (1971) (citation and internal quotation marks omitted). It is well settled 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
The cost to respondent of exercising his Fifth Amendment privilege—denial of certain perquisites that make his life in prison more tolerable—is much less than that borne by the defendant in McGautha. There, the Court upheld a procedure that allowed statements, which were made by a criminal defendant to mitigate his responsibility and avoid the death penalty, to be used against him as evidence of his guilt. 402 U. S., at 217. The Court likewise has held that plea bargaining does not violate the Fifth Amendment, even though criminal defendants may feel considerable pressure to admit guilt in order to obtain more lenient treatment. See, e. g., Bordenkircher v. Hayes, 434 U. S. 357 (1978); Brady, 397 U. S., at 751.
Nor does reducing an inmate‘s prison wage and taking away personal television and gym access pose the same hard choice faced by the defendants in Baxter v. Palmigiano, 425 U. S. 308 (1976), Ohio Adult Parole Authority v. Woodard, 523 U. S. 272 (1998), and Minnesota v. Murphy, 465 U. S. 420 (1984). In Baxter, a state prisoner objected to the fact that his silence at a prison disciplinary hearing would be held against him. The Court acknowledged that Griffin v. California, 380 U. S. 609 (1965), held that the Fifth Amendment prohibits courts from instructing a criminal jury that it may draw an inference of guilt from a defendant‘s failure to testify. The Court nevertheless refused to extend the Griffin rule to the context of state prison disciplinary hearings because those proceedings “involve the correctional process and important state interests other than conviction for crime.” 425 U. S., at 319. Whereas the inmate in the present case faces the loss of certain privileges, the prisoner in
In Murphy, the defendant feared the possibility of additional jail time as a result of his decision to remain silent. The defendant‘s probation officer knew the defendant had committed a rape and murder unrelated to his probation. One of the terms of the defendant‘s probation required him to be truthful with the probation officer in all matters. Seizing upon this, the officer interviewed the defendant about the rape and murder, and the defendant admitted his guilt. The Court found no Fifth Amendment violation, despite the defendant‘s fear of being returned to prison for 16 months if he remained silent. 465 U. S., at 422, 438.
In Woodard, the plaintiff faced not loss of a personal television and gym access, but loss of life. In a unanimous opinion just four Terms ago, this Court held that a death row inmate could be made to choose between incriminating himself at his clemency interview and having adverse inferences drawn from his silence. The Court reasoned that it “is difficult to see how a voluntary interview could ‘compel’ respondent to speak. He merely faces a choice quite similar to the sorts of choices that a criminal defendant must make in the course of criminal proceedings, none of which has ever been held to violate the Fifth Amendment.” 523 U. S., at 286. As here, the inmate in Woodard claimed to face a Hobson‘s choice: He would damage his case for clemency no matter whether he spoke and incriminatеd himself, or remained silent and the clemency board construed that silence against him. Unlike here, the Court nevertheless concluded that the pressure the inmate felt to speak to improve his chances of clemency did not constitute unconstitutional compulsion. Id., at 287-288.
Woodard, Murphy, and Baxter illustrate that the consequences respondent faced here did not amount to unconstitutional compulsion. Respondent and the dissent attempt to distinguish Baxter, Murphy, and Woodard on the dual
It is proper to consider the nexus between remaining silent and the consequences that follow. Plea bargains are not deemed to be compelled in part because a defendant who pleads not guilty still must be convicted. Cf. Brady, supra, at 751-752. States may award good-time credits and early parole for inmates who accept responsibility because silence in these circumstances does not automatically mean the parole board, which considers other factors as well, will deny them parole. See Baxter, supra, at 317-318. While the automatic nature of the consequence may be a necessary condition to finding unconstitutional compulsion, however, that is not a sufficient reason alone to ignore Woodard, Murphy, and Baxter. Even if a consequence follows directly from a person‘s silence, one cannot answer the question whether the person has been compelled to incriminate himself without first considering the severity of the consequences.
Nor can Woodard be distinguished on the alternative ground that respondent‘s choice to participate in the SATP was involuntary, whereas the death row inmate in Woodard chose to participate in clemency proceedings. This distinction assumes the answer to the compulsion inquiry. If respondent was not compelled to participate in the SATP, his participation was voluntary in the only sense necessary for our present inquiry. Kansas asks sex offenders to participate in SATP because, in light of the high rate of recidivism, it wants all, not just the few who volunteer, to receive treatment. Whether the inmates are being asked or ordered to participate depends entirely on the consequences of their decision not to do so. The parties in Woodard, Murphy, and Baxter all were faced with ramifications far worse than respondent faces here, and in each of those cases the Court
The Federal Government has filed an amicus brief describing its sex offender treatment program. Were respondent‘s position to prevail, the constitutionality of the federal program would be cast into serious doubt. The fact that the offender in the federal program can choose to participate without being given a new prisoner classification is not determinative. For, as the Government explains, its program is conducted at a single, 112-bed facility that is more desirable than other federal prisons. Tr. of Oral Arg. 22. Inmates choose at the outset whether to enter the federal program. Once accepted, however, inmates must continue to discuss and accept responsibility for their crimes if they wish to maintain the status quo and remain in their more comfortable accommodations. Otherwise they will be expelled from the program and sent to a less desirable facility. Id., at 27. Thus the federal program is different from Kansas’ SATP only in that it does not require inmates to sacrifice privileges besides housing as a consequence of nonparticipation. The federal program is comparable to the Kansas program because it does not offer participants use immunity and because it conditions a desirable housing assignment on inmates’ willingness to accept responsibility for past behavior. Respondent‘s theory cannot be confined in any meaningful way, and state and federal courts applying that view would have no principled means to determine whether these similarities are sufficient to render the federal program unconstitutional.
Respondent is mistaken as well to concentrate on the so-called reward/penalty distinction and the illusory baseline
This reasoning is unsatisfactory. The Court has noted before that “[w]e doubt that a principled distinction may be drawn between ‘enhancing’ the punishment imposed upon the petitioner and denying him the ‘leniency’ he claims would be appropriate if he had cooperated.” Roberts v. United States, 445 U.S. 552, 557, n. 4 (1980). Respondent‘s reasoning would provide States with perverse incentives to assign all inmates convicted of sex offenses to maximum security prisons until near the time of release, when the rehabilitation program starts. The rule would work to the detriment of the entire class of sex offenders who might not otherwise be placed in maximum-security facilities. And prison adminis
Respondent‘s analysis also would call into question the constitutionality of an accepted feature of federal criminal law: the downward adjustment for acceptance of criminal responsibility provided in
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Acceptance of responsibility is the beginning of rehabilitation. And a recognition that there are rewards for those who attempt to reform is a vital and necessary step toward completion. The Court of Appeals’ ruling would defeat these objectives. If the State sought to comply with the ruling by allowing respondent to enter the program while still insisting on his innocence, there would be little incentive for other SATP participants to confess and accept counseling; indeed, there is support for Kansas’ view that the dynamics of the group therapy would be impaired. If the State had to offer immunity, the practical effect would be that serial offenders who are incarcerated for but one violation would be given a windfall for past bad conduct, a result potentially destructive of any public or state support for the program and quite at odds with the dominant goal of acceptance of responsibility. If the State found it was forced to graduate prisoners from its rehabilitation program without knowing
The Kansas SATP represents a sensible approach to reducing the serious danger that repeat sex offenders pose to many innocent persons, most often children. The State‘s interest in rehabilitation is undeniable. There is, furthermore, no indication that the SATP is merely an elaborate ruse to skirt the protections of the privilege against compelled self-incrimination. Rather, the program allows prison administrators to provide to those who need treatment the incentive to seek it.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.
It is so ordered.
JUSTICE O‘CONNOR, concurring in the judgment.
The Court today is divided on the question of what standard to apply when evaluating compulsion for the purposes of the
The text of the
For instance, in Miranda v. Arizona, 384 U.S. 436, 455 (1966), we found that an environment of police custodial interrogation was coercive enough to require prophylactic warnings only after observing that such an environment exerts a “heavy toll on individual liberty.” But we have not required Miranda warnings during noncustodial police questioning. See, e. g., Beckwith v. United States, 425 U.S. 341 (1976). In restricting Miranda‘s applicability, we have not denied that noncustodial questioning imposes some sort of pressure on suspects to confess to their crimes. See Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam) (“Any interview of one suspected of a crime by a police officer will have coercive aspects to it . . .“); Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (describing the “comparatively nonthreatening character of [noncustodial] detentions” (emphasis added)). Rather, as suggested by the text of the
The same analysis applies to penalties imposed upon a person as a result of the failure to incriminate himself—some penalties are so great as to “compe[l]” such testimony, while othеrs do not rise to that level. Our precedents establish that certain types of penalties are capable of coercing incriminating testimony: termination of employment, Uniformed Sanitation Men Assn., Inc. v. Commissioner of Sanitation of City of New York, 392 U.S. 280 (1968), the loss of a profes
The first three of these so-called “penalty cases” involved the potential loss of one‘s livelihood, either through the loss of employment, loss of a professional license essential to employment, or loss of business through government contracts. In Lefkowitz, we held that the loss of government contracts was constitutionally equivalent to the loss of a profession because “[a government contractor] lives off his contracting fees just as surely as a state employee lives off his salary.” 414 U.S., at 83; contra, post, at 68, n. 11. To support oneself in one‘s chosen profession is one of the most important abilities a person can have. A choice between incriminating oneself and being deprived of one‘s livelihood is the very sort of choice that is likely to compel someone to be a witness against himself. The choice presented in the last case, Cunningham, implicated not only political influence and prestige, but also the
I do not believe the consequences facing respоndent in this case are serious enough to compel him to be a witness against himself. These consequences involve a reduction in incentive level, and a corresponding transfer from a medium-security to a maximum-security part of the prison. In practical terms, these changes involve restrictions on the personal property respondent can keep in his cell, a reduction in his visitation privileges, a reduction in the amount of money he can spend in the canteen, and a reduction in the
JUSTICE STEVENS also suggests that the move to the maximum-security area of the prison would itself be coercive. See post, at 63-64. Although the District Court found that moving respondent to a maximum-security section of the prison would put him “in a more dangerous environment occupied by more serious offenders,” 24 F. Supp. 2d 1152, 1155 (Kan. 1998), there was no finding about how great a danger such a placement posed. Because it is respondent‘s burden to prove compulsion, we may assume that the prison is capable of controlling its inmates so that respondent‘s personal safety is not jeopardized by being placed in the maximum-security area of the prison, at least in the absence of proof to the contrary.
JUSTICE STEVENS argues that the fact that the penalties facing respondent for refusal to incriminate himself are the same as those imposed for prison disciplinary violations also indicates that they are coercive. See post, at 62-63. I do not agree. Insofar as JUSTICE STEVENS’ claim is that these sanctions carry a stigma that might compel respondent to incriminate himself, it is incorrect. Because the same sanctions are also imposed on all prisoners who refuse to participate in any recommended program, App. 19-20, any stigma attached to the reduction would be minimal. Insofar as
Although I do not think the penalties respondent faced were sufficiently serious to compel his testimony, I do not agree with the suggestion in the plurality opinion that these penalties could permissibly rise to the level of those in cases like McGautha v. California, 402 U. S. 183 (1971) (holding that statements made in the mitigation phase of a capital sentencing hearing may be used as evidence of guilt), Bordenkircher v. Hayes, 434 U. S. 357 (1978) (holding that plea bargaining does not violate the
JUSTICE STEVENS attempts to distinguish these cases because, in each, the negative outcome did not follow directly from the decision to remain silent, and because none of these cases involved a direct order to testify. See post, at 60. As the plurality‘s opinion makes clear, however, these two factors do not adequately explain the difference between these cases and the penalty cases, where we have found compulsion based on the imposition of penalties far less onerous. See ante, at 43-45.
Complicating matters even further is the question of whether the denial of benefits and the imposition of burdens ought to be analyzed differently in this area. Compare ante, at 45-47, with post, at 64-65. This question is particularly important given the existence of
I find the plurality‘s failure to set forth a comprehensive theory of the
Although I do not agree that the standard for compulsion is the same as the due process standard we identified in Sandin v. Conner, 515 U.S. 472 (1995), I join in the judgment reached by the plurality‘s opinion.
JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting.
No one could possibly disagree with the plurality‘s statement that “offering inmates minimal incentives to participate [in a rehabilitation program] does not amount to cоmpelled self-incrimination prohibited by the
Based on an ad hoc appraisal of the benefits of obtaining confessions from sex offenders, balanced against the cost of honoring a bedrock constitutional right, the plurality holds that it is permissible to punish the assertion of the privilege with what it views as modest sanctions, provided that those sanctions are not given a “punitive” label. As I shall explain, the sanctions are in fact severe, but even if that were not so, the plurality‘s policy judgment does not justify the evisceration of a constitutional right. Despite the plurality‘s
I
The text of the
It is undisputed that respondent‘s statements on the admission of responsibility and sexual history forms could incriminate him in a future prosecution for perjury or any other offense to which he is forced to confess.1 It is also
clear that he invoked his
Putting to one side the plurality‘s evaluation of the policy judgments made by Kansas, its central submission is that the threatened withdrawal of respondent‘s Level III and medium-security status is not sufficiently harmful to qualify as unconstitutional compulsion. In support of this position, neither the plurality nor JUSTICE O‘CONNOR cites a single
The privilege against self-incrimination may have been born of the rack and the Star Chamber, see L. Levy, Origins of the
Our holding in Malloy v. Hogan, 378 U.S. 1 (1964), that the privilege applies to the States through the
The plurality‘s suggestion that our decision in Meachum v. Fano, 427 U.S. 215 (1976), supports a novel interpretation of the
Not a word in our discussion of the privilege in Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998), ante, at 43, requires a heightened showing of compulsion in the prison context to establish a
Respondent was directly ordered by prison authorities to participate in a program that requires incriminating disclosures, whereas no one ordered Woodard to do anything. Like a direct judicial order to answer questions in the courtroom, an order from the State to participate in the SATP is inherently coercive. Cf. Turley, 414 U.S., at 82 (“The waiver sought by the State, under threat of loss of contracts, would have been no less compelled than a direct request for the testimony without resort to the waiver“). Moreover, the penalty for refusing to participate in the SATP is automatic. Instead of conjecture and speculation about the indirect consequences that may flow from a decision to remain silent, we can be sure that defiance of a direct order carries with it the stigma of being a lawbreaker or a problem inmate, as well as other specified penalties. The penalty involved in this case is a mandated official response to the assertion of the privilege.
In Baxter v. Palmigiano, 425 U.S. 308 (1976), ante, at 42-43, we held that a prison disciplinary proceeding did not violate the privilege, in part, because the State had not “insisted [nor] asked that Palmigiano waive his
Similarly, in Minnesota v. Murphy, 465 U.S., at 438, 439, while “the State could not constitutionally carry out a threat to revoke probation for the legitimate exercise of the
II
The plurality and JUSTICE O‘CONNOR hold that the consequences stemming from respondent‘s invocation of the privilege are not serious enough to constitute compulsion. The threat of transfer to Level I and a maximum-security unit is not sufficiently coercive in their view—either because the consequence is not really a penalty, just the loss of a benefit, or because it is a penalty, but an insignificant one. I strongly disagree.
It took respondent several years to acquire the status that he occupied in 1994 when he was ordered to participate in the SATP. Because of the nature of his convictions, in 1983 the Department initially placed him in a maximum-security classification. Not until 1989 did the Department change his “security classification to ‘medium by exception’ because of his good behavior.” Lile v. Simmons, 23 Kan. App. 2d 1, 2, 929 P. 2d 171, 172 (1996). Thus, the sanction at issue threatens to deprive respondent of a status in the prison community that it took him six years to earn and which he had successfully maintained for five more years when he was ordered to incriminate himself. Moreover, abruptly “busting” his custody back to Level I, App. 94, would impose the same stigma on him as would a disciplinary conviction for any of the most serious offenses described in petitioners’ formal
The punitive consequences of the discipline include not only the dignitary and reputational harms flowing from the transfer, but a serious loss of tangible privileges as well. Because he refused to participate in the SATP, respondent‘s visitation rights will be restricted. He will be able to earn only $0.60 per day, as compared to Level III inmates, who can potentially earn minimum wage. His access to prison organizations and activities will be limited. He will no longer be able to send his family more than $30 per pay period. He will be prohibited from spending more than $20 per payroll period at the canteen, rather than the $140 he could spend at Level III, and he will be restricted in what property he can keep in his cell. App. 27-28. In addition, because he will be transferred to a maximum-security unit, respondent will be forced to share a cell with three other
The plurality‘s glib attempt to characterize these consequences as a loss of potential benefits rather than a penalty is wholly unpersuasive. The threatened transfer to Level I and to a maximum-security unit represents a significant, adverse change from the status quo. Respondent achieved his medium-security status after six years of good behavior and maintained that status during five more years. During that time, an inmate unquestionably develops settled expectations regarding the conditions of his confinement. These conditions then form the baseline against which any change must be measured, and rescinding them now surely constitutes punishment.
Paying attention to the baseline is not just “superficially appealing,” ante, at 46. We have recognized that the gov-
self-incrimination, and we reiterated that the privilege is not self-executing, 445 U.S., at 559. Furthermore, the passage quoted by the plurality, id., at 557, n. 4, was in reference to Roberts’ claim that the sentencing judge could not consider his refusal to incriminate a co-conspirator in deciding whether to impose his sentences consecutively. In that context, the privilege is not implicated and compulsion is not constitutionally significant. While it is true that in some cases the line between enhancing punishment and refusing leniency may be difficult to draw, that does not mean the distinction is irrelevant for
It is curious that the plurality asserts the impracticality of drawing such a distinction, given that in this case a majority of the Court agrees that it is perfectly clear the consequences facing respondent represent a burden, rather than the denial of a benefit. Ante, at 53-54 (O‘CONNOR, J., concurring in judgment). Our cases reveal that it is not only possible, but necessary to draw the distinction. For even Bordenkircher v. Hayes, 434 U.S. 357 (1978), conditioned its entire analysis of plea bargaining on the assumption that the defendant had been charged with the greater offense prior to plea bargaining аnd, therefore, faced the denial of leniency rather than an enhanced penalty. Id., at 360-361 (“While the prosecutor did not actually obtain the recidivist indictment until after the plea conferences had ended, his intention to do so was clearly expressed at the outset of plea negotiations. . . . This is not a situation, therefore, where the prosecutor without notice brought an additional and more serious charge after plea negotiations relating only to the original indictment had ended with the defendant‘s insistence on pleading not guilty. As a practical matter, in short, this case would be no different if the grand jury had indicted [the defendant] as a recidivist from the outset, and the prosecutor had offered to drop that charge as part of the plea bargain“).
JUSTICE O‘CONNOR recognizes that the transfer is a penalty, but finds insuffiсient coercion because the “changes in [respondent‘s] living conditions seem to [her] minor.” Ante, at 51 (opinion concurring in judgment). The coerciveness of the penalty in this case must be measured not by comparing the quality of life in a prison environment with that in a free society, but rather by the contrast between the favored and disfavored classes of prisoners. It is obviously impossible to measure precisely the significance of the difference between being housed in a four-person, maximum-security cell in the most dangerous area of the prison, on the one hand, and having a key to one‘s own room, the right to take a shower, and the ability to move freely within adjacent areas during certain hours, on the other—or to fully appreciate the importance of visitation privileges, being able to send more than $30 per pay period to family, having access to the yard for exercise, and the opportunity to participate in group activities. What is perfectly clear, however, is that it is the aggregate effect of those penalties that creates compulsion. Nor is it coincidental that petitioners have selected this same
III
The SATP clearly serves legitimate therapeutic purposes. The goal of the program is to rehabilitate sex offenders, and the requirement that participants complete admission of responsibility and sexual history forms may well be an important component of that process. Mental health professionals seem to agree that accepting responsibility for past sexual misconduct is often essential to successful treatment, and that treatment programs can reduce the risk of recidivism by sex offenders. See Winn, Strategic and Systematic Management of Denial in Cognitive/Behavioral Treatment of Sexual Offenders, 8 Sexual Abuse: J. Research and Treatment 25, 26-27 (1996).
The program‘s laudable goals, however, do not justify reduced constitutional protection for those ordered to participate. “We have already rejected the notion that citizens may be forced to incriminate themselves because it serves a governmental need.” Cunningham, 431 U.S., at 808.
The plurality‘s willingness to sacrifice prisoners’
The plurality contends that requiring immunity will undermine the therapeutic goals of the program because once “inmates know society will not punish them for their past offenses, they may be left with the false impression that society does not consider those crimes to be serious ones.” Ante, at 34. See also Brief for 18 States as Amici Curiae 11 (“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“). The idea that an inmate who is confined to prison for almost 20 years for an offense could be left with the impression that his crimes are not serious or that wrongdoing does not carry consequences is absurd. Moreover, the argument starts from a false premise. Granting use immunity does not preclude prosecution; it merely prevents the Stаte from using an inmate‘s own words, and the fruits thereof, against him in a subsequent prosecution. New Jersey v. Portash, 440 U.S. 450, 457-458 (1979). The plurality‘s concern might be justified if the State were required to grant transactional immunity, but we have made clear since Kastigar that use immunity is sufficient to alleviate a potential
Alternatively, the State could continue to pursue its rehabilitative goals without violating participants’
Through its treatment program, Kansas seeks to achieve the admirable goal of reducing recidivism among sex offenders. In the process, however, the State demands an impermissible and unwarranted sacrifice from the participants. No matter what the goal, inmates should not be compelled to forfeit the privilege against self-incrimination simply because the ends are legitimate or because they have been convicted of sex offenses. Particularly in a case like this one, in which respondent has protested his innocence all along and is being compelled to confess to a crime that he still insists he did not commit, we ought to ask ourselves—what if this is one of those rare cases in which the jury made a
I respectfully dissent.