by Larry N., NARSOL

Maybe authorities will finally accept that the Fifth Amendment of the United States Constitution really protects individuals from compelled self-incrimination. At least it does in the state of Indiana, according to the United States Court of Appeals for the Seventh Circuit. The court made it clear that the protection against self-incrimination even extends do those convicted of sexual offenses See Lacy v. Butts, No. 17-3256 (U.S. Seventh Cir. 08/25/2019), ___ F.3d ___, 2019 WL 1858276, 2019 U.S. App. LEXIS 12414 (referred to subsequently as Opinion). This is fantastic news, and NARSOL sees this decision as significant in building the body of case law related to forced self-incrimination.

The case arose from the state of Indiana because it requires all inmates convicted of a sex offense to complete the Sex Offender Management and Monitoring program (SOMM) before release.

Even though this case specifically addresses Indiana’s SOMM program, many other states have similar requirements in order to be released from prison or while under supervision. This fact makes this case relevant throughout the country and puts it on par with the Tenth Circuit’s decision in United States v. Von Behren, 822 F.3d 1139 (10th Cir. 2016), which addressed self-incrimination during polygraph testing.

Indiana’s program takes place while the individual is still incarcerated, and treatment continues once the individual is released. The forced self-incrimination begins when the person is preparing for therapy sessions. Participants must fill out workbooks that require them to describe in detail all past acts of sexual violence and abuse, regardless of whether they were ever charged for those offenses. The program informs participants that they are not immune from prosecution for any of the disclosures they make at any stage of the program. The fatal flaw is for the court was that failure to participate satisfactorily in the program is costly to the inmate because it is treated as a Class A or Major Conduct disciplinary violation. The result is a forfeiture of statutory good-time credit, which extends the period of incarceration.

Plaintiff Donald Lacy brought this case on May 16, 2013, under 28 U.S.C. § 2254, on behalf of a class of Indiana inmates who have been punished with a loss of good-time credits and a demotion in credit class for failure to abide by the requirements of the program. On September 20, 2015, the district court certified the class. Lacy argued that the disclosures required by Indiana’s SOMM and the penalties imposed for non-participation, taken together, amount to a violation of his Fifth Amendment right to be free from compelled self-incrimination. The district court agreed and ordered the issuance of the writ of habeas corpus to restore the class’s lost good-time credits. The district court also vacated all disciplinary actions and sanctions for failure to participate in the SOMM program. Consistent with what happens when a court finds a constitutional problem, rather than modifying their unconstitutional behavior, Indiana appealed the district court’s decision. On appeal, Indiana argued both that the program does not carry a sufficiently serious risk of incrimination to trigger the protections of the Fifth Amendment, and that even if it does, the revocation of credit time and the demotion in credit class do not add up to unconstitutional compulsion.

According to the court’s opinion, “Lacy’s first task is to show the risk of self-incrimination that flows from an inmate’s participation in is ‘real and appreciable’ rather than ‘imaginary and insubstantial." See Opinion at 5. Relying on Hoffman v. United States, 341 U.S. 479, 486 (1951), the court correctly pointed out that “He can do so even if the required disclosures would not ‘in themselves support a conviction’ so long as they would ‘furnish a link in the chain of evidence’ that could lead to a criminal prosecution.” Id at 5. The court also noted “Truthful and complete answers to questions such as these—and there are many, many more—are highly pertinent to crimes beyond those of conviction. The odds that some participants would be investigated and successfully prosecuted for past uncharged crimes are high…” Opinion at 7.

Indiana tried to minimize the threat of prosecution but conceded that the necessary level of risk is present. The state also admitted that the possibility of prosecution is anything but fanciful. The state explained if prisoners know they will never be prosecuted for past offenses, they may be led to believe that society does not consider their crimes to be serious.

Indiana tried to save themselves by stressing that that no prosecutions have been initiated as a result of the program. The court rejected that argument and noted that the fact even if true is not determinative. And stated, “It is not the case that ‘a witness’ constitutional privilege against self-incrimination depends upon a judge’s prediction of the likelihood of prosecution.” Opinion at 9.

NARSOL hopes this unambiguous opinion results in convincing correctional authorities that they cannot continue forcing individuals to provide crucial evidence that could result in criminal prosecution.

Larry serves as NARSOL’s treasurer, publisher of the Digest, and co-chair of the conference planning committee. He also hosts the “NARSOL in Action” and “Can They Do That?” webinars and is a regular on the “Registry Matters” podcasts. 

NARSOL is a group that opposes dehumanizing registries and works to eliminate discrimination, banishment, and vigilantism against persons accused or convicted of sexual offenses through the use of impact litigation, public education, legislative advocacy, and media outreach in order to reintegrate and reconcile affected individuals and restore their constitutional rights.

This article was originally published on narsol.org on May 15, 2019; reprinted with permission. Copyright, NARSOL 2019

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