STATE of Minnesota, ex rel. Randy MORROW, Respondent, v. Gothriel LaFLEUR, Commissioner of Corrections, petitioner, Appellant.
No. C7-98-323
Supreme Court of Minnesota.
April 15, 1999.
Importantly, there is nothing inherent in the jury‘s verdict to indicate that giving a correct instruction did not cure the errors. When used as a club or a projectile, a glass bottle can be an effective weapon. Here, the record indicates that appellant intentionally and repeatedly threw bottles at another person with great force and at close range, resulting in serious bodily harm to that person. Given such evidence, the mere fact that the jury convicted appellant of second-degree assault after receiving the correct instructions does not, in and of itself, cast any doubt on the jury‘s understanding of the elements of the crime. Accordingly, I would affirm appellant‘s conviction and his sentence of 21 months, which, I also note, was a downward durational departure from the presumptive 30-month sentence provided for by the sentencing guidelines.
LANCASTER, Justice (dissenting).
I join the dissent of Justice Gilbert.
sen, 373 N.W.2d 364, 365-66 (Minn.App.1985) pet. for rev. denied (Minn. Oct. 11, 1985). While the courts upheld the constitutionality of the statutory definition, they were concerned that the statute‘s use of the term “likely” could improperly be interpreted to dilute the state‘s burden of proof. Graham, 366 N.W.2d at 337-38. In response, CRIMJIG 13.06 was amended and its language changed to clarify the state‘s high burden. See CRIMJIG 13.06, cmts. (1990).
Bradford Colbert, Legal Assistance to Minnesota Prisoners, St. Paul, for respondent.
OPINION
LANCASTER, J.
This appeal presents the issues of whether the Commissioner of Corrections violated respondent Randy Morrow‘s due process rights or privilege against self-incrimination by imposing a disciplinary sanction for failing to participate in and complete a sex offender treatment program. The case comes to us on the Commissioner‘s appeal of a decision of the court of appeals which reversed the district court‘s denial of Morrow‘s petition for writ of habeas corpus and concluded that the Commissioner violated Morrow‘s due process rights and his Fifth Amendment privilege against self-incrimination. See State ex rel. Morrow v. LaFleur, 577 N.W.2d 226 (Minn.App.1998). We reverse the court of appeals and hold that the Commissioner‘s decision to impose a disciplinary sanction for failure to participate in and complete a sex offender treatment program violated neither Morrow‘s substantive due process rights nor his Fifth Amendment privilege.
In 1996, Morrow was convicted of fourth-degree criminal sexual conduct pursuant to
Following his conviction, Morrow‘s warrant of commitment to the Commissioner of Corrections was issued on June 11, 1996. On June 24, 1996, a sex offender assessment was conducted at the Minnesota Correctional Facility at Stillwater by sex offender assessor Joseph Lee, a psychologist. Lee‘s report reveals that it was explained to Morrow that the purpose of the interview was to determine the most appropriate sex offender treatment for Morrow, and that the recommendation for treatment would be made by a program review team. It was further explained to Morrow that failure to complete the program review team‘s directive could result in discipline, including possible additional incarceration time.2 Lee reported that
In April of 1997, Morrow was transferred to the sex offender program at the Lino Lakes facility to begin treatment. Morrow met with the treatment team on April 23, 1997, to discuss his appropriateness for sex offender programming at the institution. The minutes of the meeting state that Morrow was being assessed for treatment and say:
[Morrow] fondled the buttocks, kissed the lips, and rubbed the back of a 13-year-old boy; he also slept in the same bed with the boy. Except for fondling the buttocks, subject admits all the above actions. He denies the inappropriateness of this action; nor does he regard it as harmful or illegal. Further, subject said he is currently appealing his conviction. Due to the denial of his offense, team did not see him as an appropriate candidate for SOP-LL program; team unanimously voted for his termination.
The legislature has provided that a person incarcerated on a sex offense may be directed to appropriate treatment and failure to comply with treatment can be grounds for institutional disciplinary action. See
Occasionally staff have accepted inmates into the program who are appealing their current conviction if the inmate had a prior conviction in which he displayed behavior similar to that described in the appealed conviction. Because the behaviors are the same the inmate can discuss them and make progress in therapy without jeopardizing his appeal.
These dynamics aren‘t true in your case. In past offenses you‘ve been sexually inappropriate with young females. In your current offense your victim was a young male. This is a significant escalation of deviant behavior that staff believe needs to be addressed. Unfortunately, because you are appealing your conviction, you can‘t talk about that behavior in therapy.
In an affidavit dated January 1998, Thomas stated that before responding to Morrow‘s administrative appeal notice, he reviewed Morrow‘s file, spoke with Morrow‘s treatment therapist, and also spoke with Morrow.3 Based on his review of the matter, Thomas determined that Morrow had been properly terminated from the program because he was unamenable to treatment. Thomas’ affidavit stated that “[m]y review indicated that Morrow was in denial about his offense and that he was unwilling to discuss all of the facts of his offense because he was appealing his conviction.” Morrow told Thomas that he thought he should be allowed to remain in the program because he was willing to talk about his prior convictions involving criminal sexual conduct with young females.4 Thom-
Because Morrow was unwilling to discuss or accept responsibility for his current offense, it did not appear that he could benefit from the treatment program or that treatment staff could address successfully the behavioral problems underlying his conviction. Under such circumstances it was appropriate to discharge Morrow from the program. * * *
I referenced Morrow‘s pending appeal in my memorandum [of May 6, 1997] because this seemed to be a significant factor in Morrow‘s refusal to discuss or accept responsibility for his offense. I did not intend to convey the impression that Morrow was terminated from the program simply because he had appealed his conviction. As I indicated at the conclusion of my memorandum, the fact that Morrow was appealing his conviction was relevant to the extent it meant he was unwilling to discuss his current offense in a meaningful way.
Morrow offered an additional justification for his continued denial of the sexual contacts, which was that he had testified at his trial in his own defense and was concerned that cooperation with treatment would result in a perjury prosecution.5
The department originally calculated Morrow‘s supervised release date to be January 22, 1998. The department also advised Morrow that failure to comply with the treatment requirement would result in Disciplinary Confinement Time Added (DCTA), which would delay his supervised release date. Following the program team‘s determination that Morrow was unamenable to treatment, a disciplinary hearing was held on September 30, 1997. The hearing officer found Morrow guilty of the charge and assessed a disciplinary sanction of 90 days DCTA. After the imposition of DCTA, the department calculated Morrow‘s new supervised release date to be April 22, 1998. Morrow appealed the decision to the warden who affirmed the hearing officer.6
On appeal to this court, Morrow challenges the constitutionality of the Commissioner‘s actions.7 The parties do not dispute the facts and thus we are faced with questions of law subject to de novo review. See Metropolitan Property & Cas. Ins. Co. v. Metropolitan Transit Comm‘n, 538 N.W.2d 692, 695 (Minn.1995); see also Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn.1989) (stating that where the only questions before the court are questions of law, “no deference need be given to the decisions below“).
As a preliminary matter, we note that Morrow is not challenging the Commissioner‘s decision—made by the treatment team and affirmed by the warden—that he is una-
I. Fifth Amendment privilege
Morrow claims that the Commissioner retaliated against him for invoking his Fifth Amendment privilege against self-incrimination. The issue before us is whether the Fifth Amendment privilege against self-incrimination prohibits the Department of Corrections from making a finding of unamenability to treatment when that finding is based in whole or in part on the inmate‘s assertion that truthful cooperation with treatment could subject him to criminal liability.8
The Fifth Amendment, applicable to the states through the Fourteenth Amendment, provides that “[n]o person * * * shall be compelled in any criminal case to be a witness against himself.”
Morrow argues that the Commissioner attempted to compel the disclosure of incriminating statements by threatening, and later imposing, disciplinary action against him. Compulsion is the “touchstone of the Fifth Amendment.” Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977); see also South Dakota v. Neville, 459 U.S. 553, 562 (1983) (citing Fisher v. United States, 425 U.S. 391, 397 (1976) (stating that “[t]he Court has held repeatedly that the Fifth Amendment is limited to prohibiting the use of ‘physical or moral compulsion’ exerted on the person asserting the privilege“)). However, not every burden on the exercise of a constitutional right and not every encouragement to waive such a right is invalid. Corbitt v. New Jersey, 439 U.S. 212 (1978). Therefore, we first turn our attention to the nature of the alleged penalty for refusing to admit the offense of conviction.9 We focus on the nature of the claimed compulsion and conclude that Morrow had a choice between treatment and confinement for a larger portion of his sentence, and that the “choice does not rise to the level of compulsion necessary in order to constitute a Fifth Amendment violation.” Heddan v. Dirkswager, 336 N.W.2d 54, 65 (Minn.1983).
The nature of the claimed compulsion here is the choice between fully participating in mandated sex offender treatment, which includes in this case admission of the conduct for which appellant was convicted, or facing disciplinary action for failure to complete treatment, which delays the date of the inmate‘s supervised release. Two federal circuits have determined that requiring a convicted sex offender to admit to his crime in order to enter a prison treatment program does not violate the Fifth Amendment privilege against self-incrimination. See McMorrow v. Little, 109 F.3d 432 (8th Cir.1997); Johnson v. Baker, 108 F.3d 10 (2d Cir.1997); Asherman v. Meachum, 957 F.2d 978 (2d Cir.1992) (en banc). We agree, and hold
There is an important distinction to be drawn between being released from prison earlier than the time ordered in one‘s sentence and losing one‘s freedom when one is not serving a sentence. See Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 9 (1979) (stating “[t]here is a crucial distinction between being deprived of a liberty one has, as in parole, and being denied a conditional liberty that one desires“).10 Minnesota‘s statutory scheme expressly provides that a prisoner does not have a right to a “specific, minimum length of a supervised release term.”
[T]he Court has held that loss of a job, loss of state contracts, loss of future contracting privileges with the state, loss of political office, loss of the right to run for public office in the future, and revocation of probation are all “penalties” that cannot be imposed on the exercise of the privilege. These cases “establish[] that a state may not impose substantial penalties because a witness elects to exercise his Fifth Amendment privilege not to give incriminating testimony against himself.”
United States v. Frierson, 945 F.2d 650, 658 (3d Cir.1991) (citing Cunningham, 431 U.S. at 805), cert. denied, 503 U.S. 952 (1992). Thus we conclude that the loss of an opportunity for an earlier supervised release date does not constitute a substantial penalty for purposes of the Fifth Amendment.
Even though disciplinary time added does not constitute a substantial penalty for Fifth Amendment purposes, we caution that, as the district court observed in this case, prison officials cannot impose disciplinary sanctions against an inmate “in retaliation for the [inmate‘s] exercise of his constitutional rights.” Goff v. Burton, 7 F.3d 734, 738 (8th Cir.1993), cert. denied, 512 U.S. 1209 (1994). We agree with Morrow that, as a threshold matter, any discipline for refusing to answer questions must be based on legitimate official inquiry. The purpose cannot be simply to give prison officials a “sense of satisfaction.” See State v. Carrizales, 191 Wis.2d 85, 528 N.W.2d 29, 32 (Ct.App.1995) (an admission is “a first step toward rehabilitation” and is not required simply to give prison officials “a sense of satisfaction.“).
We take particular issue with the court of appeals’ assertion in this case that what Morrow was willing to admit provided ample grist for therapeutic discussion. The issue is not whether Morrow and a counselor could have found something to talk about, or even, given the luxury of time and healing, whether Morrow would ultimately have come to admit that what he did was harmful. Treatment of sex offenders is a legitimate penological interest. Sex offender treatment professionals, charged with the responsibility of determining amenability to treatment, are not required to just “do the best they can” with whatever the inmate chooses to tell them. The court of appeals, in concluding that some treatment is possible, has improperly substituted its judgment for that of the treatment professionals. We are not in the business of sex offender treatment and leave such decisions to those who are, absent a showing that the Department of Corrections’ actions were unreasonable, arbitrary, or capricious. See Carl Bolander & Sons Co. v. City of Minneapolis, 502 N.W.2d 203, 207 (Minn.1993). Morrow has not attempted, much less made, such a showing.
Here, the Commissioner required Morrow to respond to relevant official inquiries. See
Morrow also argues that there is no distinction between punishment for invocation of a constitutional right and punishment for refusing to answer relevant official inquiries. This is the position taken by the dissenting judge in Asherman, who argued that the majority‘s distinction “mischaracterizes Fifth Amendment jurisprudence” because the prisoner was punished for invoking the privilege. Asherman, 957 F.2d at 986-88 (Cardamone, J., dissenting). The court of appeals agreed that Morrow was “being punished immediately and directly for his failure to (fully) admit guilt,” and that “this [punishment] violates due process and Morrow‘s Fifth Amendment privilege.”12 Morrow, 577 N.W.2d at 228. However, such a distinction is well established, and is recognized by the Supreme Court.13
The same reasoning applies here. We agree that the state may not directly compel Morrow to admit his crime, but the state may require Morrow to undergo treatment. Morrow may have to admit some inappropriate sexual contact with a young boy or boys in order to participate in treatment and could face discipline for failure to complete the program. Morrow requests that the Commissioner be ordered to provide him with treatment even if he refuses to admit to his offense and refuses to acknowledge doing anything that was inappropriate, illegal, or harmful.14 The legitimacy of prison sex offender treatment derives from soci-
We therefore conclude that Morrow was not compelled to surrender his Fifth Amendment privilege, and we reverse the court of appeals.
II. Substantive due process claim
We now turn to Morrow‘s claim that the Commissioner violated his right to substantive due process by forcing him to admit his offense. If a fundamental right is at stake, the state action is subject to strict scrutiny and the state must show “a legitimate and compelling interest” for abridging that right. See In re Blodgett, 510 N.W.2d 910, 914 (Minn.), cert. denied, 513 U.S. 849 (1994). For any other interest, “judicial scrutiny of the substance of state legislation under the due process clause is not exacting.” State v. Behl, 564 N.W.2d 560, 567 (Minn.1997) (citing Bowers v. Hardwick, 478 U.S. 186, 191-96 (1986)). Under this less exacting standard, “substantive due process requires only that the legislative enactments not be arbitrary or capricious or, stated another way, that they be a reasonable means to a permissive object.” Id. (explaining the rational basis standard of review).
Morrow asserts that the fundamental interest at stake in this case is “the ability to control one‘s own thoughts” because the Commissioner, in essence, required him to admit guilt in order to enter the treatment program. The court of appeals, without stating the fundamental right at stake, held that disciplining a prisoner by terminating him from a treatment program that is based solely on the prisoner‘s refusal to admit the legal elements of his offense while his conviction is on appeal violates his due process rights. See Morrow, 577 N.W.2d at 228.
We disagree with the court of appeals. We first note that Morrow does not have a fundamental right to refuse treatment. See Sundby v. Fiedler, 827 F.Supp. 580, 583 (W.D.Wis.1993) (citing Turner v. Safley, 482 U.S. 78 (1987)). Second, Morrow does not have a fundamental right to receive treatment. See Stewart v. Davies, 954 F.2d 515, 516 (8th Cir.1992) (inmate has no constitutional right to rehabilitative programming). And third, Morrow does not have a fundamental right to be released from prison before the expiration of his lawfully imposed sentence. See Greenholtz, 442 U.S. at 9.
Morrow has not shown that the Commissioner violated a fundamental interest by imposing disciplinary time for his failure to complete a sex offender treatment program. A disciplinary sanction is rationally related to the societal interest in ensuring that sex offenders do not commit new offenses when released from prison. See Grenemyer v. Gunter, 770 F.Supp. 1432, 1438 (D.Colo.1991), aff‘d, 968 F.2d 20 (10th Cir.1992); Nicolaison v. Erickson, 425 N.W.2d 597, 599 (Minn.App.1988) (rehabilitation of sex offenders serves a legitimate penological interest). We conclude the Commissioner did not violate Morrow‘s substantive due process rights; therefore, we reverse the court of appeals.
Reversed.
PAGE, Justice (dissenting).
I respectfully dissent. The DOC‘s policy of imposing DCTA for an inmate‘s failure to complete a sex offender treatment program because of the inmate‘s refusal to answer official inquiries about his offense during a pending appeal of his conviction violates that
The Fifth Amendment provides that “[n]o person * * * shall be compelled in any criminal case to be a witness against himself.”1 The privilege allows an individual to refuse to answer official questions put to him in any civil or criminal proceeding if the answers might incriminate him in future criminal proceedings.2 When an individual asserts the privilege, “he ‘may not be required to answer a question if there is some rational basis for believing that it will incriminate him, at least without at that time being assured that neither it nor its fruits may be used against him’ in a subsequent criminal proceeding.”3 The fact that the individual is considered to be a bad person should not compel a different result.
Upon entry into the sex offender treatment program at MCF-Lino Lakes, the DOC required Morrow to admit that the conduct resulting in his conviction was “inappropriate, illegal, or harmful” in order to continue with the program. While the DOC required Morrow to admit his conduct, it did not assure him that any admissions he made would not be used against him in any subsequent criminal proceeding. Rather than make any admissions, Morrow asserted his Fifth Amendment privilege against compelled self-incrimination because his conviction was on appeal. From the record it is clear that Morrow‘s invocation of his Fifth Amendment privilege was the sole basis for his termination from the program. It is also clear that the only reason he was unwilling to discuss or accept responsibility for his offense was because his appeal was pending. Consequently, it cannot seriously be argued that the imposition of 90 days DCTA resulted from something other than the invocation of his constitutional right.
By its decision in this case, the court now holds that an inmate‘s Fifth Amendment privilege is not implicated by being required to answer official inquiries when the state does not seek an order to compel answers to an inquiry, require a waiver of immunity, or threaten the inmate with use of the statements in a future criminal proceeding.4 The distinction the court makes between these last three forms of compulsion and “merely” requiring a response to an official inquiry is lost on me. Making such a distinction is an exercise in semantics and exalts form over substance. Here, the state conceded that, if Morrow had made incriminating statements during the treatment program and subsequently obtained a new trial, it might attempt to use those incriminating statements against him at the new trial. Whether compelled by a court order, a requirement to waive immunity, a threat to use Morrow‘s statements against him, or the addition of DCTA, the compulsion to speak is no different.
Moreover, the court contends that the mere compulsion to speak does not violate the Fifth Amendment because the state has a legitimate penological interest in treatment of sex offenders. The determination that the state has a legitimate interest should not end the inquiry because the state always has an interest in procuring a statement from the accused.5 The fact that the state may have a
Any contention that the imposition of DCTA is not a sanction capable of forcing self-incrimination is absurd. Although the 90 days DCTA did not alter Morrow‘s sentence, it did serve to lengthen the amount of time he actually had to spend in prison. Therefore, without an assurance that his statements would not be used against him, compelling Morrow to answer official inquiries violates his Fifth Amendment privilege.7 The simple solution to this problem, as noted in Welfare of J.W. and A.W.,8 is for the state to grant Morrow immunity for any incriminating statements made relating to the specific crime for which he was convicted and which was the subject of his appeal to the court of appeals.
The fundamental problem with the court‘s analysis is its use of substantive due process jurisprudence to prop up its conclusion that the imposition of DCTA does not violate Morrow‘s Fifth Amendment rights. The court focuses on whether Morrow has a right to early release and correctly concludes that he does not have a right to a specific supervised release date. However, the court‘s reliance on cases such as Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex9 in the context of Fifth Amendment analysis is misplaced. The absence of a substantive due process violation does not necessarily mean that the sanction imposed is not a compulsion in violation of the Fifth Amendment. The inquiry should focus on whether the imposition of DCTA is a sanction “capable of forcing the self-incrimination which the Amendment forbids.” Assuming Morrow‘s sentence “belonged presumptively to the state,” the additional 90 days DCTA is still a sanction capable of forcing self-incrimination. Thus, although Morrow is not entitled to a specific supervised release date, on the facts presented here I conclude that he was compelled to waive his privilege against self-incrimination in violation of the Fifth Amendment.
PAUL H. ANDERSON, Justice (dissenting).
I join the dissent of Justice Page.