OPINION
This is an appeal from an order denying appellant Randy Morrow’s petition for a writ of habeas corpus challenging a disciplinary sanction imposed on him by respondent that extends his supervised release date by 90 days. We reverse.
FACTS
Morrow was convicted in June 1996 and sentenced to 36 months in prison for fourth-degree criminal sexual conduct. Morrow also received 10 years of extended supervised release time to be served after his release from prison. The complaint alleged that Morrow had engaged in sexual contact with a 13-year-old boy by rubbing his buttocks. Morrow had a prior second-degree criminal sexual conduct conviction from 1991.
Prison officials conducted a sex offender assessment of Morrow upon his admission into prison, and he was told he would have to complete a long-term intensive sex offender treatment program while in prison, and that if he did not do so he could receive Disciplinary Confinement Time Added (DCTA), which would extend his term of imprisonment.
Morrow met with MCF-Lino Lakes treatment program staff members on April 23, 1997, in order “to determine whether Morrow was amenable to treatment and should begin the first phase of the program.” According to a memo generated the same day by the ease manager, Morrow admitted most of the behavior alleged in the complaint, including kissing the 13-year-old boy on the lips and sleeping in the same bed with him, but denied fondling the boy’s buttocks, the element of sexual contact. Morrow declined to admit that element, or to further discuss the offense, because he was appealing his conviction. The treatment staff therefore determined he was not amenable to treatment and terminated him from the program. As a result, he was charged with a violation of Disciplinary Rule 51 and sanctioned with 90 days of DCTA. The 90 days of DCTA extended Morrow’s supervised release date from January 22, 1998, to April 22, 1998. Morrow filed a petition for habeas corpus challenging the DCTA sanction. The trial court denied the petition.
ISSUE
Did the disciplinary sanction imposed violate due process or appellant’s Fifth Amendment privilege against self-incrimination?
ANALYSIS
On appeal from the denial of a petition for habeas corpus, the trial court’s findings are entitled to great weight and will be sustained if reasonably supported by the evidence.
State ex rel. Holecek v. Ross,
In the trial court, Morrow relied primarily on a claimed due process violation. He cited a statement made by the treatment program director, who stated after Morrow had appealed his termination that Morrow had been terminated because he was “legally appealing [his] current conviction.” The director later filed an affidavit in response to the habeas petition, explaining that the reason was instead Morrow’s refusal to discuss the offense. Morrow then raised a Fifth Amendment issue at the hearing on the petition. Morrow has not waived his claim that his Fifth Amendment privilege was violated.
The Eighth Circuit Court of Appeals has held that the “better rule” is that the Fifth Amendment privilege against compelled self-incrimination “continues until the time for appeal has expired or until the conviction has been affirmed on appeal.”
United States v. Duchi,
This court held in
Taylor
that a requirement of admission of guilt before an inmate could be admitted into a sex offender treatment program did not violate the inmate’s privilege against self-incrimination.
Taylor,
First, Morrow had not exhausted his appeal from conviction at the time he was terminated from the treatment program. 1 Second, it appears that admission of guilt was an absolute requirement of admission into the treatment program, and that Morrow did not refuse to participate in the program but only limited his admission of guilt.
Morrow’s termination from the treatment program based on his refusal to discuss one aspect of his behavior reflects a rigid approach making treatment in effect a punishment for an exercise of one’s rights rather than an opportunity for rehabilitation. Morrow admitted kissing the lips and rubbing the back of the 13-year-old boy, as well as sleeping on the same bed. These admissions provided ample topics for therapeutic discussion. The requirement that Morrow not only admit inappropriate behavior but also admit all elements of the criminal offense is “artificial, * * * unrealistic * * *, and * * * fatally counter productive,”
In re Welfare of J.A.F.,
No. C3-89-1199,
Disciplinary Rule 51 requires an inmate to “follow and complete” a mandated treatment program, including demonstrating a “willingness to enter and participate” in the program. In this case, unlike Taylor, we have no evidence that Morrow was unwilling to participate in the treatment program. He merely declined to make a legal admission to the elements of fourth-degree criminal sexual conduct. Morrow’s denial of sexual contact did not constitute any “unwillingness to discuss the offense” that would meaningfully hinder treatment. The only logical explanation for the termination is that the treatment staff punished Morrow for either his formal denial of the offense, or his pending appeal, or both.
The supreme court has held that, while a court could not require parents to incriminate themselves in a child protection case in order to avoid termination of parental rights, it could require the parents to undergo treatment for which acceptance of guilt was a precondition of successful completion.
In re Welfare of J.G.W.,
DECISION
The disciplinary sanction violated appellant’s due process and Fifth Amendment rights. Appellant is entitled to a writ of habeas corpus requiring respondent to recalculate his supervised release date and release him accordingly.
Reversed.
Notes
. This court's opinion affirming Morrow’s conviction on direct appeal was not issued until a month-and-a-half after Morrow declined to discuss the offense.
State
v.
Morrow,
No. C4-96-1702,