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Seventh Circuit Holds Indiana’s Sex Offender Treatment Program Unconstitutional

by Dale Chappell

In a class-action habeas petition challenging the Indiana DOC’s Sex Offender Management and Monitoring (INSOMM) program as being unconstitutional, the Court of Appeals for the Seventh Circuit held on April 25, 2019 that INSOMM’s requirement that prisoners admit to crimes they had not been charged with violates their Fifth Amendment right against self-incrimination.

Under INSOMM, which all prisoners in Indiana convicted of sex offenses must complete before their release, if a prisoner refuses to admit or is deceptive about past sex-related crimes for which he was never charged, the state takes previously-earned good conduct time (GCT). Some prisoners have lost all of their GCT for refusing to admit to past offenses.

Yet INSOMM doesn’t allow confidentiality or immunity. Prisoners are made aware that whatever they admit to in the program can be used against them to file new charges. That applies to admissions discovered through testing, such as polygraphs. [See: PLN, July 2018, p.46; Nov. 2016, p.20].

The question before the Seventh Circuit was whether taking a prisoner’s earned GCT constituted “compelled” speech under the Fifth Amendment intended to induce a confession that could incriminate the prisoner. The appellate court held it did.

Pursuant to the Fifth Amendment, no person (including prisoners) shall be compelled to be a “witness against himself.” In McKune v. Lile, 536 U.S. 24 (2002) [PLN, Oct. 2002, p.8], the U.S. Supreme Court held that taking away personal televisions and imposing less desirable living conditions did not amount to “compulsion” under the Fifth Amendment, if a prisoner refused to comply with a sex offender treatment program.

However, effectively imposing a longer prison term by taking GCT was not the same as losing a privilege, the Court of Appeals found. Noting that a majority of the justices in McKune had agreed that a prisoner was not compelled to incriminate himself under the Kansas Sexual Abuse Treatment Program because his refusal to participate “did not extend his term of incarceration,” the loss of GCT in this case implicated the Fifth Amendment.

The Court held that the right against self-incrimination was implicated because, even though the state argued prisoners were advised not to divulge details that could lead to a new charge, INSOMM required intimate details, such as the victim’s name and race, that could possibly result in additional charges. “The questions posed to an INSOMM participant would yield answers that any competent sex-crimes investigator would love to have,” the Seventh Circuit wrote.

 Further, the likelihood of prosecution was not the determining factor. Rather, the right against self-incrimination applies even if the details given “could lead to other evidence” that sets off a chain of events resulting in new charges, the Court of Appeals stated.

“Indeed, in its reply brief the state all but concedes that the necessary level of risk is present,” the Court said. “It admits there that the possibility of prosecution is anything but ‘fanciful.’ It does so in the course of explaining why INSOMM does not provide immunity for its participants.”

The appellate court stressed that it was due to the loss of GCT that the Fifth Amendment was violated, and that a mere loss of prison privileges was an entirely different matter. McKune, while instructive, was not on-point with the facts in this case, the Court of Appeals noted, as it had nothing to do with a penalty affecting a prisoner’s duration of confinement.

Therefore, the Seventh Circuit affirmed the district court’s grant of habeas relief to the class members, and held that INSOMM violated the constitutional protections of the Fifth Amendment. See: Lacy v. Butts, 922 F.3d 371 (7th Cir. 2019). 

Related legal case

Lacy v. Butts