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Monday, January 31, 2005

New Case: Sex Offender Programs and the Self-Incrimination Clause

The Ninth Circuit held last week in U.S. v. Antelope (and here) that the federal sex offender program for convicts on supervised release, which requires participants to disclose past acts of criminal sexual misconduct, violates the self-incrimination clause when it sends a releasee back to prison for refusing to participate and incriminate himself through such disclosures.  The court distinguished McKune v. Lile, in which the Supreme Court upheld the taking away of an inmate's prison privileges when he refused to participate in a similar sex offender program prior to release.  The 2002 case of McKune was a plurality decision from which it is hard to find a clear holding.  Justice Kennedy, writing for 3 other Justices, believed that the prison sex offender program in McKune was permissible in part because it took place in prison, did not impose penalties on "free citizens," and implicated important penalogical goals of the state.  Kennedy also argued that the program in McKune simply offered incentives to participate rather than imposed penalties on silence.  O'Connor concurred on different grounds, arguing that the case presented a question similar to the "choices inherent in the criminal process" cases like Jenkins, McGautha and Bordenkircher, and that the pressure inherent in McKune's choice to participate in the program--possible loss of prison privileges--was not adequately severe to constitute compulsion in that context. Given that the Ninth Circuit relied solely on O'Connor's concurring opinion in McKune (and argued that the penalty in Antelope--imprisonment--was sufficiently more severe than that in McKune) plus speculation as to the likely positions of McKune's 4 dissenters to reach its result, this case might see action at a higher level.  If so, it will be interesting to see if Justice Kennedy and the 3 Justices that joined his McKune opinion believe that a person on supervised release is more like a prisoner or a "free citizen."  [Mark Godsey]

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