No. 00-1187 

In the Supreme Court of the United States 

DAVID R. MCKUNE, WARDEN, ET AL., 
PETITIONERS 

v. 

ROBERT G. LILE 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE TENTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING PETITIONERS 

THEODORE B. OLSON 

Solicitor General 

Counsel of Record 

STUART E. SCHIFFER 

Acting Assistant Attorney 

General 

PAUL D. CLEMENT 

Deputy Solicitor General 

GREGORY G. GARRE 

Assistant to the Solicitor 

General 

VICKI MARANI 

Attorney 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTION PRESENTED 

Whether the Fifth Amendment privilege against com- 
pelled self-incrimination prevents a State from encouraging 
incarcerated sexual offenders to participate in a clinical 
rehabilitative program, in which participants must accept 
responsibility for their offenses, by conditioning the avail- 
ability of certain institutional privileges on participation in 
the program. 

(I) 

TABLE OF CONTENTS 

Page 

Interest of the United States ...................................................... 
1 

Statement ........................................................................................ 2 

Summary of argument .................................................................. 

8 

Argument: 

The Fifth Amendment does not prevent a State 
from advancing legitimate penological objectives by 

conditioning the availability of institutional privi- 
leges on participation in a rehabilitation program 
that requires convicted sexual offenders to accept 

responsibility for their offenses .......................................... 

10 

A. The determination whether an inmate has been 
“compelled” to incriminate himself should take 

into account the nature of the regime to which 
he has been committed ................................................. 

11 
B. In finding unconstitutional compulsion, the 

court of appeals misconstrued this Court’s 
precedents and overlooked the history and pur- 
pose of the privilege ..................................................... 

16 

C. Even if the Kansas SATP implicates inmates’ 

Fifth Amendment rights, it reasonably ad- 
vances legitimate penological goals and there- 
fore is valid under Turner ........................................... 

20 
D. If the Court concludes that the Kansas SATP 
violates the Fifth Amendment, it should be 

careful to avoid casting doubt on the validity 
of other treatment programs ...................................... 

26 
Conclusion ....................................................................................... 28 

TABLE OF AUTHORITIES 

Cases: 

Baltimore City Dep’t of Soc. Servs. v. Bouknight, 
493 U.S. 549 (1990) ........................................................ 17-18, 22 

(III) 

IV 

Cases—Continued: Page 

Bankes v. Simmons, 963 P.2d 412 (Kan.), cert. 
denied, 525 U.S. 1060 (1998) ................................................ 
15 

Baxter v. Palmigiano, 425 U.S. 308 (1976) ....................... 
12, 17 

Bell v. Wolfish, 441 U.S. 520 (1979) .................................... 
11 

Bordenkircher v. Hayes, 434 U.S. 357 (1978) ................... 
18 

Brady v. United States, 397 U.S. 742 (1970) ..................... 
18 

Corbitt v. New Jersey, 439 U.S. 212 (1978) ....................... 
18 

Couch v. United States, 409 U.S. 322 (1973) ..................... 
19 

Ferguson v. City of Charleston, 121 S. Ct. 1281 
(2001) ........................................................................................ 22 

Garrity v. New Jersey, 385 U.S. 493 (1967) ...................... 

17, 18 

Griffin v. California, 380 U.S. 609 (1965) ......................... 
12 

Hewitt v. Helms, 459 U.S. 460 (1983) ............................. 
13, 15 

Jaffee v. Redmond, 518 U.S. 1 (1996) ................................. 
26 

Jones v. North Carolina Prisoners’ Labor Union, 

Inc., 433 U.S. 119 (1977) ...................................................... 

11 

Kansas v. Lile, 699 P.2d 456 (Kan. 1985) .......................... 
6 

Lewis v. Casey, 518 U.S. 343 (1996) .................................... 
12 

Meachum v. Fano, 427 U.S. 215 (1976) ............................. 
13, 15 

Minnesota v. Murphy, 465 U.S. 420 (1984) ........ 
12, 16, 22, 23 

Murphy v. Waterfront Comm’n, 378 U.S. 52 (1964) ....... 
20 

O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) ............ 
11, 21 

Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 
(1998) ........................................................................................ 
11, 18 

Pell v. Procunier, 417 U.S. 817 (1974) ............................... 
13, 21 

Sandin v. Conner, 515 U.S. 472 (1995) ...................... 
9, 11, 12, 

13, 15, 16, 21 
Shaw v. Murphy, 121 S. Ct. 1475 (2001) ........................ 

12, 20 

Spevack v. Klein, 385 U.S. 511 (1967) ................................ 
19 

Turner v. Safley, 482 U.S. 78 (1987) .................................. 8, 9, 12, 

20, 21, 25, 26 
Ullmann v. United States, 350 U.S. 422 (1956) ............... 

20 

United States v. Mezzanatto, 513 U.S. 196 (1995) ........... 
18 

United States v. Monia, 317 U.S. 424 (1943) .................... 10 

V 

Cases—Continued: Page 

United States v. Washington, 431 U.S. 181 
(1977) ........................................................................................ 11 

Ward v. Rock Against Racism, 491 U.S. 781 
(1989) ........................................................................................ 21 

Constitution, statute and regulations: 

U.S. Const.: 

Amend. I .................................................................................. 
12, 21 

Amend. V ............................................................................. 
passim 

Self Incrimination Clause ......................... 
1, 8, 10, 14, 15, 17 

Due Process Clause .......................................................... 
15 

Amend. XIV ........................................................................... 
1 

18 U.S.C. 3563(b)(9) (1994 & Supp. V 1999) ......................... 
14 

42 C.F.R.: 

Section 2.22(b) ........................................................................ 

26 

Section 2.22(b)(4) ................................................................... 
26 

Kan. Admin. Regs. § 44-5-105(c)(1) ....................................... 
5 

United States Sentencing Guidelines § 3E1.1...................... 
14 

Miscellaneous: 

Henry J. Friendly, The Fifth Amendment Tomor- 
row: The Case for Constitutional Change, 37 
U. Cin. L. Rev. 671 (1968) .................................................... 

19 
4 Kansas Dep’t of Corrections, Offender Programs 

Evaluation (2000) .................................................................. 

3, 21 

Leonard W. Levy: 

Constitutional Opinions: Aspects of the Bill of 

Rights (1986) ...................................................................... 

19 

Origins of the Fifth Amendment (1968) ............................ 
19 

Stefan J. Padfield, Self-Incrimination and Accep- 
tance of Responsibility in Prison Sex Offender 
Treatment Programs, 49 U. Kan. L. Rev. 487 
(2001) ........................................................................................ 22 

The Sexual Predator: Law, Policy, Evaluation and 

Treatment (Anita Schlank & Fred Cohen eds., 
1999) ......................................................................................... 3 

VI 

Miscellaneous—Continued: Page 

U.S. Dep’t of Justice: 

Bureau of Prisons, Sex Offender Treatment Program 
(2001) ................................................................................... 
2, 27 

Bureau of Justice Statistics, Child Victimizers: 

Violent Offenders and Their Victims (1996) ................ 

2 

Recidivism of Prisoners Released in 1983 (1997) ........... 
3 

Sex Offenses and Offenders (1997) ..................................... 
2, 3 

Federal Bureau of Investigation, Uniform Crime 

Reports (1999) .................................................................... 

2 

National Institute of Corrections, A Practitioner’s 

Guide to Treating the Incarcerated Male Sex 
Offender (1988) .................................................................. 3, 22 

In the Supreme Court of the United States 

No. 00-1187 

DAVID R. MCKUNE, WARDEN, ET AL., 
PETITIONERS 

v. 

ROBERT G. LILE 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE TENTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING PETITIONERS 

INTEREST OF THE UNITED STATES 

The court of appeals in this case held that the Self Incri- 
mination Clause of the Fifth Amendment, applied to the 
States through the Fourteenth Amendment, prevents a 
State from seeking to advance legitimate penological objec- 
tives by conditioning the availability of certain institutional 
privileges on convicted sexual offenders’ participation in a 
clinical rehabilitative program in which participants must 
accept responsibility for their sexual offenses. The Federal 
Bureau of Prisons (BOP), which operates more than 90 penal 
institutions across the country, has its own sexual offender 
treatment program. Like the state program challenged in 
this case, the overriding objective of the federal program is 
“to help sexual offenders manage their sexual deviance in 

(1) 

2 

order to reduce sexual recidivism.” U.S. Dep’t of Justice, 
Bureau of Prisons, Sex Offender Treatment Program 1 
(2001) (Program Description). As we explain below, 
although the federal program differs in important respects 
from the state program here, it shares the critical treatment 
goal of having inmates demonstrate “[c]omplete acceptance 
of responsibility for [their] sexual crime(s).” Id. at 2. The 
United States has a strong interest in establishing the 
validity of such treatment programs and, more generally, in 
ensuring that prison officials have appropriate discretion in 
seeking to advance legitimate penological goals such as 
reducing sexual recidivism. 

STATEMENT 

1. Sexual offenders inflict a terrible toll each year on this 
Nation and its citizens. In 1995, nearly 355,000 rapes and 
sexual assaults were reported nationwide by victims older 
than 12 years. U.S. Dep’t of Justice, Bureau of Justice 
Statistics, Sex Offenses and Offenders (1997); see also U.S. 
Dep’t of Justice, Federal Bureau of Investigation, Uniform 
Crime Reports 24 (1999).1 Between 1980 and 1994, the aver- 
age number of individuals imprisoned for sexual offenses 
increased at a faster rate than that for any other category of 
violent crime. Sex Offenses and Offenders 18. In 1994, 
nearly 100,000 inmates were serving time in state prisons for 
rape or sexual assault; another 134,000 convicted sexual of- 
fenders were under community supervision, such as 
probation or parole. Id. at 15. More than 42,000 of those 
inmates victimized children. U.S. Dep’t of Justice, Bureau of 
Justice Statistics, Child Victimizers: Violent Offenders and 
Their Victims 2 (1996). 

1 These figures understate the incidence of sexual offenses because 
many sexual offenses go unreported and others involve children under the 
age of 12, who are not covered by this survey. 

3 

When they reenter society at large, convicted sexual of- 
fenders are much more likely to repeat the offense of con- 
viction than any other type of felon. Sex Offenses and 
Offenders 27; U.S. Dep’t of Justice, Bureau of Justice 
Statistics, Recidivism of Prisoners Released in 1983 6 
(1997). At the same time, however, it is widely accepted by 
correctional officials and therapists alike that clinical reha- 
bilitative programs can enable sexual offenders to manage 
their criminal sexual impulses and thereby reduce the risk of 
sexual recidivism. U.S. Dep’t of Justice, Nat’l Institute of 
Corrections, A Practitioner’s Guide to Treating the Incar- 
cerated Male Sex Offender xiii (1988) (Practitioner’s Guide).2 
A vital component of those programs is for participants to 
come to terms with their sexual misconduct. Id. at 73. 

2. a. Like most States and the federal government, 
Kansas has established a sexual abuse treatment program 
(SATP) for convicted sexual offenders as a means of enabling 
such inmates “to control deviant behavior and reduce [the 
risk of] reoffending” behavior. 4 Kansas Dep’t of Cor- 
rections, Offender Programs Evaluation 31 (2000); J.A. 99. 
The Kansas SATP utilizes a number of generally accepted 
treatment techniques, including individual and group coun- 
seling, as well as polygraph and penile plethysmograph 
testing. See Practitioner’s Guide 219-224 (discussing model 
treatment programs from more than 20 States). A critical 
treatment goal of the Kansas program—like that of virtually 
every other successful program—is for participants to accept 

2 “[T]he rate of recidivism of treated sexual offenders is fairly con- 
sistently estimated to be around 15%,” whereas the rate of recidivism 
for untreated offenders has been estimated to be as high as 80%. 
Practitioner’s Guide xiii. “Even if both of these figures are exaggerated, 
there would still be a significant difference between treated and untreated 
individuals.” Ibid.; see also, e.g., The Sexual Predator: Law, Policy, 
Evaluation and Treatment 11-25 (Anita Schlank & Fred Cohen eds., 1999) 
(“[I]t seems generally recognized * * * that given an appropriate 
treatment regimen, many sexual offenders do respond positively.”). 

4 

responsibility for their offenses. J.A. 100, 107. To that end, 
participants must complete an “Admission of Responsibility” 
form (J.A. 31), fill out a sexual history form discussing 
offending behavior (J.A. 32-34), and discuss their past sexual 
behavior in individual and group counseling sessions. 

SATP staff generally keep such information confidential. 
However, inmates are informed before entering the program 
that confidentiality is limited. J.A. 35-36. In particular, 
SATP counselors must report any incidents of child abuse, as 
well as “situations which could be harmful to [the inmate] or 
others, or a threat to the orderly operation of the facility.” 
J.A. 35. SATP staff also provide treatment evaluations of 
participants to the Kansas Parole Board, and SATP records 
may be subpoenaed. Ibid. We understand that no SATP 
participant has ever been charged with (or convicted of) a 
criminal offense based on information disclosed during treat- 
ment, but an inmate’s participation in the program none- 
theless could result in the disclosure of potentially incrimi- 
nating information.3 

b. Correctional officials recommend convicted sexual of- 
fenders who meet certain criteria for participation in the 
SATP. Those inmates are advised that the SATP is 
“voluntary,” and that participants must sign a consent form 
before enrolling. J.A. 31; Pet. App. 20a. Nevertheless, 
prison officials encourage participation in the SATP, just like 
other prison programs, to advance their penological objec- 
tives. Pet. App. 27a; J.A. 100. 

As an overall means of “managing the offender population 
and reinforcing constructive behavioral changes in of- 
fenders,” the State’s Internal Management Policy and Pro- 

3 Information about sexual offenses other than the offense of con- 
viction may come up during counseling, but SATP staff do not view it as 
their role to “investigate” such offenses and, thus, try to use identifiers for 
prior victims other than their full names. J.A. 154; see J.A. 109-112, 154- 
155. 

5 

cedure (IMPP) for prisons establishes “a comprehensive 
system of earnable offender privileges,” including those 
governing TV ownership, inmate organizations and activi- 
ties, canteen expenditures, property, incentive pay, and 
visitation. J.A. 13-14. The IMPP establishes certain 
incentive levels—Intake Level, Level I, Level II, and Level 
III—that reward inmates who meet correctional goals by 
granting them additional privileges. J.A. 14-15, 27, 52. 
Although applicable regulations state that an “inmate shall 
not be penalized for refusal to participate in a formal 
program plan,” Kan. Admin. Regs. § 44-5-105(c)(1), an in- 
mate’s decision not to participate in a recommended pro- 
gram, including the SATP, results in a reduction in 
his incentive level and, thus, in his privileges. J.A. 19, 73-74. 

Declining to participate in the SATP may also affect 
where an inmate is housed. Kansas operates minimum, 
medium, and maximum security facilities. An inmate may 
not be housed in a facility with a security designation below 
his custody level, but may be housed in a facility with a 
security designation above that level. J.A. 60, 62; see J.A. 
103-104 (“There are probably hundreds of medium security 
inmates today, and probably a good number of minimum 
security—or custody inmates, that are living in maximum 
security settings today.”). Prison officials do not base 
housing decisions on the IMPP’s incentive system, but in- 
stead rely, inter alia, on an inmate’s custody level, the 
availability of space in a particular facility, and whether an 
inmate is enrolled in a program or has a job in a facility. J.A. 
62-63, 68, 70-71, 99. 

The SATP is conducted at only a few facilities in Kansas, 
including at the medium-security facility in Lansing. An 
inmate’s refusal to participate in the SATP may result in his 
transfer from a facility that hosts the program to another 
facility, consistent with his custody level. J.A. 83. As the 
Secretary of Corrections has explained, “it makes no sense 
to have someone who’s not participating in a program taking 

6 

up a bed in a setting where someone else who may be willing 
to participate in a program could occupy that bed and 
participate in a program.” J.A. 99. 

3. In 1982, respondent flagged down a high school girl 
and forced her at gunpoint to commit oral sodomy on him, 
then drove her to a field and raped her. He was convicted of 
rape, aggravated sodomy, and aggravated kidnaping, and 
sentenced to life imprisonment with the possibility of parole 
after 15 years. Kansas v. Lile, 699 P.2d 456, 457 (Kan. 1985). 
Respondent was assigned a medium-custody level and impri- 
soned in the maximum-security facility in Lansing, along 
with other medium-custody inmates. In 1989, he was trans- 
ferred to the medium-security facility in Lansing. In 1994, 
prison officials recommended that respondent participate in 
the SATP at that facility, but he declined to do so. Pet. 
App. 4a. 

Under the IMPP, respondent’s decision not to enroll in the 
SATP reduced his incentive level from Level III to Level I 
and, thus, diminished his privileges. Pet. App. 10a. At Level 
III, respondent could, inter alia, purchase his own personal 
TV; participate in approved organizations or activities; 
receive any approved visitor; and spend $140 per payroll 
period in the canteen. At Level I, he remains eligible for 
general TV viewing; may participate in certain self-help 
programs and enjoy library and religious services and gym 
and yard activities; may receive visits from immediate family 
members, attorneys, and clergy; and may spend up to $20 
per payroll period. See J.A. 27 (chart). 

Although he retained his medium-custody level, respon- 
dent received notice that he would be transferred from 
Lansing’s medium-security facility—where the SATP is 
conducted—to its maximum-security facility, where he 
would be housed in the C-2 unit with other medium-custody 
inmates. Pet. App. 17a; J.A. 73. The conditions in C-2 are 
less favorable than those at the medium-security facility. 
For example, more inmates share a cell in C-2; it has inferior 

7 

athletic facilities; and C-2 inmates enjoy less flexibility than 
inmates in the medium-security facility, who, for example, 
have keys to their dormitory-style cells. J.A. 64-68; C.A. 
App. 47-48. In addition, respondent asserts that the 
potential for violence is greater in the C-2 unit, though 
prison officials dispute that contention. See J.A. 78-79. 

4. In 1995, respondent filed this action, claiming that 
prison officials violated his Fifth Amendment privilege 
against compelled self-incrimination by reducing his pri- 
vileges and noticing his transfer for not participating in the 
SATP.4 The district court found that the SATP is a genuine 
“clinical rehabilitative program,” supported by a “legitimate 
penological objective”—rehabilitation. Pet. App. 52a. In 
addition, the court acknowledged that respondent’s refusal 
to participate in the program may not result in any “atypical 
[prison] hardship.” Id. at 43a. Nonetheless, the court held 
that “the hardship attendant to [respondent’s] refusal to 
participate in the SATP Program is sufficient compulsion for 
purposes of the Fifth Amendment,” and granted summary 
judgment for respondent. Id. at 44a. 

The court of appeals affirmed. Pet. App. 1a-32a. The 
court held that the consequences flowing from respondent’s 
refusal to participate in the SATP “are sufficiently potent 
and substantial to constitute impermissible compulsion” 
under the Fifth Amendment. Id. at 26a. In so holding, the 
court reasoned that in the prison context unconstitutional 
“[c]ompulsion can be established by hardships that may not 
be atypical and that do not constitute enforceable liberty 
interests.” Id. at 15a. Because it found impermissible com- 

4 Respondent also claimed that the SATP violated his constitutional 
“right to privacy and bodily integrity” by requiring him to submit to a 
plethysmograph examination. Pet. App. 46a. The court of appeals did not 
consider the merits of that claim, and that issue is not before this Court. 
Id. at 32a. 

8 

pulsion, the court rejected the proposition that the SATP 
was “truly voluntary.” Id. at 20a. 

The court also considered respondent’s claim under the 
inquiry established by Turner v. Safley, 482 U.S. 78 (1987). 
The court agreed with Kansas that the SATP served 
legitimate penological interests—“promoting rehabilitation 
and increasing public safety”—and recognized that requiring 
inmates to accept responsibility for their offenses advanced 
those interests, as “most mental health experts agree that ‘a 
sex offender must admit his guilt for treatment and 
rehabilitation to be successful.’ ” Pet. App. 27a-28a. Never- 
theless, the court concluded that “the Turner balancing 
weighs in favor of the inmate,” reasoning that the State 
could achieve its objectives “by implementing a system of 
confidentiality or granting immunity.” Id. at 32a. 

SUMMARY OF ARGUMENT 

Kansas encourages incarcerated sexual offenders to 
participate in a sexual abuse treatment program by con- 
ditioning the availability of certain privileges upon an in- 
mate’s agreement to participate. The program recognizes 
that successful treatment requires participants to come to 
terms with their past history of sexual misconduct. 
Although counselors seek that information to facilitate treat- 
ment, in some instances, counseling sessions may elicit 
information about past sexual history that indicates a 
current risk to the safety of children or other inmates. 
Kansas warns program participants that such information 
will not necessarily remain confidential. Nothing in the Self 
Incrimination Clause precludes Kansas from adopting, or 
encouraging inmates to participate in, this common-sense re- 
habilitative program. 

The privilege against self-incrimination does not termi- 
nate with incarceration. Nonetheless, the fact of incar- 
ceration and the resulting restrictions on an inmate’s liberty 
clearly inform the Fifth Amendment analysis. In the due 

9 

process context, this Court recognizes that the elimination of 
privileges and minor changes in incarceration status do not 
implicate constitutional liberty interests. E.g., Sandin v. 
Conner, 515 U.S. 472 (1995). Those same principles support 
the proposition that, absent arbitrary state action, the minor 
changes in detention status at issue here do not result in 
unconstitutional compulsion. The court below reached a 
different conclusion by relying on cases that prohibit the 
government from penalizing the assertion of a Fifth Amend- 
ment privilege by loss of public employment or contracts. 
But this Court has never applied those so-called “penalty” 
cases in the prison context, and with good reason. The 
granting and withdrawing of privileges to which inmates 
have no entitlement does not create the same kind of com- 
pulsion as the penalties discussed in this Court’s precedents. 
Moreover, the court of appeals lost sight of the basic point 
that what constitutes impermissible “compulsion” must take 
account of the significant restrictions already inherent in any 
sound penal regime. 

Even if Kansas’ treatment program implicates the Fifth 
Amendment rights of inmates, it does not violate the Consti- 
tution because any burdens on those rights are reasonably 
related to legitimate penological interests. See Turner v. 
Safley, 482 U.S. 78 (1987). Kansas’ interest in reducing 
recidivism among convicted sexual offenders is unassailably 
legitimate. The treatment program advances that interest 
directly because it is almost universally acknowledged that 
accepting responsibility for past sexual misconduct is neces- 
sary for successful treatment. By providing incentives for 
inmates to participate, prison officials further the interests 
of other inmates, the facility, and society as a whole. Al- 
though not questioning those interests, the court of appeals 
held that the Kansas program was unconstitutional by rea- 
soning that the State could achieve those objectives, without 
implicating inmates’ constitutional rights, by the simple 
expedient of immunization. But decisions concerning the 

10 

scope of confidentiality in the prison rehabilitative setting 
are no less deserving of deference than other difficult 
judgments that correctional officials must make. Moreover, 
the limits that Kansas has placed on confidentiality, includ- 
ing those requiring counselors to report information 
concerning child abuse or the safety of inmates, clearly pro- 
mote legitimate penological objectives. 

Finally, if this Court concludes that the Kansas program is 
unconstitutional, it should do so on grounds that do not cast 
doubt on the validity of other treatment programs, including 
the federal program. Although there is almost universal 
agreement that acceptance of responsibility is key to suc- 
cessful treatment of sexual offenders, there are a variety of 
ways to contour such a treatment program. BOP has chosen 
not to condition the availability of privileges on inmates’ 
agreement to participate in its treatment program. Even if 
the Court concludes that the Kansas program is invalid, it 
should leave room for the operation of a treatment program 
like the federal one. 

ARGUMENT 

THE FIFTH AMENDMENT DOES NOT PREVENT A 
STATE FROM ADVANCING LEGITIMATE PE- 
NOLOGICAL OBJECTIVES BY CONDITIONING THE 
AVAILABILITY OF INSTITUTIONAL PRIVILEGES 
ON PARTICIPATION IN A REHABILITATION PRO- 
GRAM THAT REQUIRES CONVICTED SEXUAL 
OFFENDERS TO ACCEPT RESPONSIBILITY FOR 
THEIR OFFENSES 

The Self Incrimination Clause of the Fifth Amendment 
states that no person “shall be compelled in any criminal case 
to be a witness against himself.” Because “[t]he Amendment 
speaks of compulsion,” United States v. Monia, 317 U.S. 424, 
427 (1943), this Court has emphasized that “[t]he consti- 
tutional guarantee is only that the witness be not compelled 

11 

to give self-incriminating testimony.” United States v. 
Washington, 431 U.S. 181, 188 (1977); see Ohio Adult Parole 
Auth. v. Woodard, 523 U.S. 272, 286 (1998). The overriding 
issue in this case is whether Kansas’ decision to condition 
certain privileges on whether convicted sexual offenders 
avail themselves of the State’s SATP creates impermissible 
compulsion within the meaning of the Fifth Amendment 
privilege. As we explain below, that question should be 
resolved in light of the settled principles governing the 
constitutional rights of those who have been lawfully 
committed to a correctional system. 

A. The Determination Whether An Inmate Has Been 

“Compelled” To Incriminate Himself Should Take 

Into Account The Nature Of The Regime To Which He 

Has Been Committed 

1. “[P]risoners do not shed all constitutional rights at the 
prison gate, but ‘[l]awful incarceration brings about the 
necessary withdrawal or limitation of many privileges and 
rights, a retraction justified by the considerations under- 
lying our penal system.’ ” 
Sandin v. Conner, 515 U.S. 472, 

485 (1995) (citation omitted); see Shaw v. Murphy, 121 S. Ct. 
1475, 1479 (2001); O’Lone v. Estate of Shabazz, 482 U.S. 342, 
348 (1987); Jones v. North Carolina Prisoners’ Labor Union, 
Inc., 433 U.S. 119, 129 (1977). A broad range of conditions 
and choices that would infringe constitutional rights in free 
society fall within the “expected conditions of confinement” 
of those who have been lawfully convicted and incarcerated. 
Sandin, 515 U.S. at 487 n.11. 

“The limitations on the exercise of constitutional rights 
[by inmates] arise both from the fact of incarceration and 
from valid penological objectives—including * * * 
rehabilitation of prisoners.” O’Lone, 482 U.S. at 348; see Bell 

v. Wolfish, 441 U.S. 520, 546 (1979). Courts owe broad defer- 
ence to the judgment of those who administer our Nation’s 
penal institutions in determining how to promote such legiti- 

12 

mate penological objectives. See Shaw v. Murphy, 121 S. Ct. 
at 1480; Lewis v. Casey, 518 U.S. 343, 349-350 (1996). 
Moreover, when, as here, “a state penal system is involved, 
federal courts have * * * additional reason to accord 
deference to the appropriate prison authorities.” Turner v. 
Safley, 482 U.S. 78, 85 (1987). 

Those principles apply to the Fifth Amendment just as 
forcefully as they do with respect to the First Amendment 
and other cherished rights. To be sure, “[a] defendant does 
not lose [Fifth Amendment] protection by reason of his 
conviction of a crime.” Minnesota v. Murphy, 465 U.S. 420, 
426 (1984). But, as this Court has recognized, lawful con- 
viction and incarceration necessarily place limitations on the 
exercise of a defendant’s Fifth Amendment privilege. See, 

e.g., Baxter v. Palmigiano, 425 U.S. 308 (1976). In Baxter, 
the Court declined to extend to prison disciplinary proceed- 
ings the rule of Griffin v. California, 380 U.S. 609 (1965), 
that the prosecution may not comment on a defendant’s 
silence at trial. 425 U.S. at 319; see id. at 320. As the Court 
explained, “[d]isciplinary proceedings in state prisons * * * 
involve the correctional process and important state 
interests other than conviction for crime.” Id. at 319. 

2. a. The uniqueness of the prison environment informs 
the determination whether an individual has been “com- 
pelled” to act in a manner proscribed by the Fifth Amend- 
ment. As the Court explained most recently in Sandin, the 
“expected perimeters of the sentence imposed by a court of 
law” include a wide range of actions that may adversely 
affect an inmate’s life within the penal system, without 
implicating any protected liberty interest. 515 U.S. at 485. 
For example, “[c]onfinement in any of the State’s institutions 
is within the normal limits or range of custody which the 
conviction has authorized the State to impose.” Meachum v. 
Fano, 427 U.S. 215, 225 (1976). Accordingly, the fact “[t]hat 
life in one prison is much more disagreeable than in another” 
does not in itself give rise to any constitutional objection 

13 

“when a prisoner is transferred to the institution with the 
more severe rules.” Ibid. 

The same follows for any number of additional privileges 
or conditions affecting the “ordinary incidents of prison life,” 
including the entitlement to particular types of food, rec- 
reational facilities, or jobs. See Sandin, 515 U.S. at 483. 
Indeed, in Hewitt v. Helms, 459 U.S. 460, 467 n.4 (1983), this 
Court concluded that an inmate’s transfer to another facility 
did not in itself implicate a liberty interest, even though that 
transfer resulted in the loss of “access to vocational, educa- 
tional, recreational, and rehabilitative programs.” Short of 
the type of “atypical, significant deprivation in which a State 
might conceivably create a liberty interest,” or “arbitrary 
state action,” an inmate may be required to endure many de- 
privations without being denied any liberty interest. 
Sandin, 515 U.S. at 486-487 & n.11. 

When, as an incidental consequence of a valid rehabilita- 
tive program, an inmate experiences nothing more than the 
type of deprivations or hardships that are within the 
expected conditions of his confinement, he has not been sub- 
jected to compulsion proscribed by the Fifth Amendment. 
One of the basic realities of incarceration is that prison 
officials may establish incentives for inmates to behave in a 
manner that advances legitimate penological goals, including 
rehabilitation. See Pell v. Procunier, 417 U.S. 817, 823 
(1974) (“[S]ince most offenders will eventually return to 
society, [a] paramount objective of the corrections system is 
the rehabilitation of those committed to its custody.”). 

Prison officials may promote such behavior in numerous 
ways, including by linking the availability of institutional 
privileges in which inmates enjoy no liberty interest to 
whether inmates act in a manner that advances legitimate 
penological goals. Asking inmates to choose between for- 
going such privileges, on the one hand, and enrolling in a 
clinical rehabilitative program that requires them to accept 
responsibility for their sexual offenses, on the other, does not 

14 

subject them to any pressure that is not already inherent in 
the regime to which they have been committed. 

To be sure, forgoing institutional privileges may make pri- 
son life more difficult for inmates. But when that is the 
result of a choice that involves legitimate penological inter- 
ests, it does not exert the compulsion necessary for a Fifth 
Amendment violation. Where a correctional program— 
rehabilitative or otherwise—does not advance a legitimate 
objective, but instead is simply a pretext for gathering in- 
criminating evidence on inmates, a State could not deny in- 
mates privileges for refusing to participate. But nothing in 
the Self Incrimination Clause prevents a State from estab- 
lishing a valid rehabilitative program and encouraging in- 
mates to participate in it by conditioning privileges in which 
they do not enjoy a liberty interest on their decision to enter 
the program.5 

b. The loss of privileges experienced by respondent 
clearly did not implicate any protected liberty interest.6 As 
discussed above, under the IMPP, the reduction in respon- 

5 The breadth of the reasoning that led the Tenth Circuit to a con- 
trary conclusion invites Fifth Amendment challenges by inmates to 
virtually any effort by prison officials to allocate privileges or conditions, 
even incidentally, based on whether a prisoner has accepted responsibility 
for his offenses. For example, if the decision below is affirmed, prisoners 
can be expected to challenge the use of offense severity scores to assign 
prisoners to more restrictive facilities if (as in the federal system) offense 
levels take account of whether the prisoner accepted responsibility for the 
offense of conviction. Cf. Sentencing Guidelines § 3E1.1. Likewise, the 
Tenth Circuit’s expansive rationale could lead to challenges to the routine 
imposition of rehabilitative treatment (whether for sexual offenders or 
substance abusers) as a condition of probation, parole, or supervised re- 
lease. Cf., e.g., 18 U.S.C. 3563(b)(9) (1994 & Supp. V 1999). 

6 Respondent has not argued, nor could he, that his decision not to 
participate in the SATP increased the sentence that he received for his 
crimes of rape, aggravated sodomy, and kidnaping. Moreover, respon- 
dent’s decision not to participate in the SATP did not affect his eligibility 
for good-time credits or his eligibility for parole. See Pet. App. 10a-12a. 

15 

dent’s incentive level diminished (but did not eliminate) his 
privilege to enjoy, inter alia, TV ownership, inmate activi- 
ties, canteen expenditures, visitation, incentive pay, and 
intake property. See J.A. 27. Those are precisely the sort of 
“ordinary incidents of prison life” that, as this Court re- 
affirmed in Sandin, are not protected by the Due Process 
Clause. 515 U.S. at 483; see Bankes v. Simmons, 963 P.2d 
412, 420 (Kan.) (reduction in privileges stemming from 
refusal to participate in the SATP or other program is “not 
atypical and do[es] not pose a significant hardship within a 
prison” and, thus, does “not involve a liberty interest”), cert. 
denied, 525 U.S. 1060 (1998). Accordingly, the loss of those 
privileges here does not create the degree of compulsion re- 
quired to trigger the Self Incrimination Clause. 

The same goes for the proposed change in respondent’s 
housing. Indeed, that change is analogous to—and, if 
anything, less consequential than—the transfer challenged in 
Meachum, where this Court held that the Due Process 
Clause does not in itself protect an inmate from being trans- 
ferred from a medium-security facility to a maximum- 
security facility with less favorable living conditions. 427 
U.S. at 228-229.7 As the Court explained, “[w]hatever ex- 
pectation the prisoner may have in remaining at a particular 
prison so long as he behaves himself, it is too ephemeral and 
insubstantial to trigger procedural due process protections 
as long as prison officials have discretion to transfer him for 
whatever reason or for no reason at all.” Id. at 228. See 
Sandin, 515 U.S. at 486; Hewitt, 459 U.S. at 468. 

7 Respondent has asserted that the conditions in the C-2 unit would 
expose him to a “greater threat of personal harm.” Opp. 2 (citing Pet. 
App. 18a). But prison officials have contradicted that contention. J.A. 78- 

79. Although the change in conditions does not appear any less favorable 
than the one involved in Meachum, if the Court concludes that that fact is 
material to the Fifth Amendment analysis in this case, it is genuinely 
disputed and should preclude summary judgment for respondent. 

16 

In sum, any pressure that was placed on respondent by 
the State’s rules for encouraging inmates to participate in 
prison programs was entirely consistent with the nature of 
the regime to which he was lawfully committed, and did not 
rise to the level of compulsion proscribed by the Fifth 
Amendment. 

3. The foregoing analysis establishes a clear and pre- 
dictable regime for prison administrators seeking to encour- 
age inmate participation in rehabilitative programs with 
acceptance-of-responsibility treatment goals, and builds on 
the framework that this Court has established for reviewing 
the constitutional claims of prisoners. Moreover, the Court’s 
existing due process precedents not only provide a helpful 
baseline for evaluating claims of unconstitutional compulsion 
in the prison context, but also minimize the line-drawing 
problems that the Court sought to foreclose in Sandin. See 
515 U.S. at 483-484.8 

B. In Finding Unconstitutional Compulsion, The Court 

Of Appeals Misconstrued This Court’s Precedents 

And Overlooked The History And Purpose Of The 

Privilege 

1. In finding impermissible compulsion, the court of 
appeals relied upon “the so-called ‘penalty’ cases.” Min- 
nesota v. Murphy, 465 U.S. at 434; see Pet. App. 15a-16a. In 

8 If the loss of privileges in which inmates enjoy no liberty interest 
may amount to impermissible compulsion, then courts will certainly be 
called upon to decide which privileges are of constitutional magnitude. 
For example, it could not plausibly be argued that conditioning an in- 
mate’s privilege to receive “a tray lunch rather than a sack lunch” 
(Sandin, 515 U.S. at 483) on whether he agreed to participate in a sexual 
offender treatment program requiring acceptance of responsibility estab- 
lished unconstitutional compulsion. Presumably, the same could be said of 
the privilege to be housed in a cell with “electrical outlets for televisions.” 
Ibid. But at some point, this Court would have to discover a limiting 
principle for deciding when impermissible compulsion arises due to the 
loss of such privileges. 

17 

those cases, the Court ruled that “the State could not consti- 
tutionally seek to compel testimony that had not been im- 
munized by threats of serious economic reprisal,” such as the 
termination of public “employment or eligibility to contract 
with the State.” Baxter, 425 U.S. at 317. As the Court put it 
in Garrity v. New Jersey, 385 U.S. 493, 497 (1967), “[t]he 
option to lose [one’s] means of livelihood or to pay the 
penalty of self-incrimination is the antithesis of free choice to 
speak out or remain silent.” 

Whatever the precise effect the fact of incarceration has 
on the scope of the Self Incrimination Clause, the court of 
appeals below erred in relying on the Court’s penalty cases. 
This Court has never applied those cases to find a Fifth 
Amendment violation in the prison context, and with good 
reason. The penalty cases represent a significant extension 
of the protection against self-incrimination to preclude not 
only incrimination in a criminal case, but also being put to a 
choice between invoking the right and pursuing a livelihood 
or other important economic interests. Those principles are 
not easily extended to the prison context, where inmates 
already have surrendered their rights to pursue a livelihood 
and to contract freely with the State, as well as their liberty 
interests in many other basic freedoms. 

In addition, there is no indication in this Court’s decisions 
that the state provisions invalidated in the penalty cases 
were supported by a government interest other than ob- 
taining potentially incriminating information from public em- 
ployees or contractors. Here, by contrast, the correctional 
program is directly related to legitimate government objec- 
tives, including the rehabilitation of those who have been 
lawfully committed to its custody. “The Court has on several 
occasions recognized that the Fifth Amendment privilege 
may not be invoked to resist compliance with a regulatory 
regime constructed to effect the State’s public purposes 
unrelated to the enforcement of its criminal laws.” Balti- 
more City Dep’t of Soc. Servs. v. Bouknight, 493 U.S. 549, 

18 

556 (1990) (citing cases). That the regulatory program chal- 
lenged in this case is amply supported by such purposes 
provides an additional reason to uphold it. 

The penalty cases likewise must be considered in light of 
this Court’s precedents recognizing that criminal defendants 
confront numerous difficult choices from investigation to 
conviction and release that do not create unconstitutional 
pressures. See, e.g., Woodard, 523 U.S. at 287; United States 

v. Mezzanatto, 513 U.S. 196 (1995); Corbitt v. New Jersey, 
439 U.S. 212 (1978); Bordenkircher v. Hayes, 434 U.S. 357 
(1978); Brady v. United States, 397 U.S. 742 (1970). Those 
cases establish that the Constitution allows the State to ask 
defendants and inmates to choose between exercising a con- 
stitutional right and forgoing that right in exchange for a 
hope or promise of some benefit. To the extent that the 
penalty cases invalidate such choices when imposed as 
generic conditions in particular civil contexts, different con- 
siderations apply in the criminal justice system.9 
Moreover, the penalty cases involved choices that were 
different in both kind and degree from the choice presented 
to respondent here—a reduction in privileges governing 
matters such as TV ownership or recreational activities and 
transfer to less favorable though still more than adequate 
housing. Cf., e.g., Garrity, 385 U.S. at 497 (“The choice given 
petitioners was either to forfeit their jobs or to incriminate 

9 In the prison context, correctional officials may present inmates 
with choices that require them to weigh the continued enjoyment of cer- 
tain privileges against the perceived disadvantages of submitting to a 
valid treatment program, even when that program incidentally may 
require the inmate to disclose potentially incriminating information. That 
a program requires an inmate to weigh the benefit of retaining existing 
privileges as opposed to the benefit of obtaining new privileges is not a 
difference of constitutional dimension. The constitutionality of Kansas’ 
program should not turn on whether it moves inmates who agree to 
participate from Level I to Level III, or moves those who decline to 
participate from Level III to Level I. 

19 

themselves.”); Spevack v. Klein, 385 U.S. 511, 516 (1967) 
(“[T]hreat of disbarment and the loss of professional stand- 
ing, professional reputation, and of livelihood are powerful 
forms of compulsion.”). Thus, even if the prison context did 
not make any difference in this case, the penalty cases would 
still be inapposite. 

2. Likewise, nothing in the history of the Fifth Amend- 
ment indicates that the privilege against compulsory self- 
incrimination was intended to proscribe the type of choice 
presented to respondent. “Historically, the [Fifth Amend- 
ment] privilege sprang from an abhorrence of governmental 
assault against the single individual accused of crime and the 
temptation on the part of the State to resort to the expedient 
of compelling incriminating evidence from one’s mouth. The 
Court has thought the privilege necessary to prevent any 
‘recurrence of the Inquisition and the Star Chamber, even if 
not in their stark brutality.’ ” Couch v. United States, 409 
U.S. 322, 327 (1973) (citation omitted); see Leonard W. Levy, 
Origins of the Fifth Amendment 328 (1968) (“The element of 
compulsion or involuntariness was always an essential ingre- 
dient of the right [against self-incrimination].”). 

10 

Justice Frankfurter observed for the Court that “[t]he 
privilege against self-incrimination is a specific provision of 
which it is peculiarly true that ‘a page of history is worth a 
volume of logic.’ ” Ullmann v. United States, 350 U.S. 422, 

10 The penalty decisions have been criticized for stretching the Fifth 
Amendment privilege beyond its historical moors. As Judge Friendly ob- 
served, “[n]othing in the historical development of the [Fifth Amendment] 
privilege suggests that threatened loss of employment was the kind of 
compulsion against which the amendment aimed to protect.” Henry J. 
Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional 
Change, 37 U. Cin. L. Rev. 671, 707 (1968); see id. at 708 & n.158; see also, 

e.g., Leonard W. Levy, Constitutional Opinions: Aspects of the Bill of 
Rights 208 (1986). As noted above, finding unconstitutional compulsion in 
this case would require extending the Fifth Amendment privilege even 
further beyond its original design. 

20 

438 (1956). Asking inmates to choose between certain insti- 
tutional privileges and participation in a rehabilitative pro- 
gram requiring acceptance of responsibility does not subject 
inmates to an “inquisition,” or even the “cruel trilemma of 
self-accusation, perjury or contempt.” Murphy v. Water- 
front Comm’n, 378 U.S. 52, 55 (1964). To the extent that an 
inmate fears that participation may result in self-incrimina- 
tion, he may simply decline to participate. While it may 
make the conditions of his confinement less comfortable, that 
decision has no incriminating effect whatever. 

C. Even If The Kansas SATP Implicates Inmates’ Fifth 

Amendment Rights, It Reasonably Advances Legiti- 
mate Penological Goals And Therefore Is Valid Under 

Turner 

Even if Kansas’ treatment program implicates respon- 
dent’s Fifth Amendment rights, the SATP is nonetheless 
constitutional under Turner. As the court of appeals recog- 
nized, a finding of constitutionally impermissible compulsion 
begins rather than ends the constitutional analysis. “[W]hen 
a prison regulation impinges on inmates’ constitutional 
rights, the regulation is valid if it is reasonably related to 
legitimate penological interests.” Turner, 482 U.S. at 89. As 
the Court underscored just last Term, “under Turner and its 
predecessors, prison officials are to remain the primary 
arbiters of the problems that arise in prison management.” 
Shaw v. Murphy, 121 S. Ct. at 1480. 

Turner identifies several potentially relevant factors in 
determining whether a prison regulation implicating pri- 
soners’ constitutional rights furthers legitimate penological 
goals, including the extent to which the regulation has a 
rational connection to the State’s legitimate interests, and 
the existence of ready and reasonable alternatives. 482 U.S. 
at 89-90. To the extent that those factors are relevant to a 
self-incrimination claim, they point decidedly to the consti- 

21 

11 The Tenth Circuit’s contrary 
conclusion is based on a fundamental misapplication of 
Turner. 

1. Kansas’ program furthers the indisputably legitimate 
goal of reducing recidivism among convicted sexual of- 
fenders. Rehabilitation is a “paramount objective” of any 
penal system. Pell, 417 U.S. at 823; see Sandin, 515 U.S. at 
485; O’Lone, 482 U.S. at 348; Pet. App. 28a. Respondent does 
not deny that the SATP is a genuine “clinical rehabilitative 
program.” Id. at 52a. As discussed above, that program 
utilizes generally accepted treatment techniques for sexual 
offenders, and has as its primary objective reducing sexual 
recidivism among such offenders. See p. 3, supra; J.A. 99- 
100. What is more, the available statistics indicate that the 
Kansas program actually has succeeded in promoting that 
objective. 4 Offender Programs Evaluation 34 (discussing 
reduction in sexual recidivism among inmates receiving 
treatment compared with those who eschewed it). 

11 In Turner, this Court also identified as relevant considerations the 
availability of alternative means to exercise the constitutional right, and 
the impact of the regulation on guards, other inmates, and the allocation of 
prison resources generally. See 482 U.S. at 90. Although the former 
factor may be instructive in a First Amendment case like Turner, we do 
not believe that it affects the analysis of respondent’s Fifth Amendment 
claim. While the First Amendment makes the existence of alternative 
channels of communications constitutionally relevant, see, e.g., Ward v. 
Rock Against Racism, 491 U.S. 781, 797 (1989), there is no analogous Fifth 
Amendment doctrine. With respect to the latter factor, everyone in the 
prison environment—including inmates, guards, and other prison 
officials—benefits from encouraging sexual offenders to receive treatment 
that may enable them to control their sexual impulses. Sexual offenses 
within prison remain a serious problem in the Nation’s penal institutions. 
In addition, to the extent that information disclosed during the program 
may be used to prevent inmates from abusing one another or guards, that 
consideration only bolsters the constitutionality of the Kansas program 
under Turner. See p. 26, infra. 

tutionality of Kansas’ SATP. 

22 

At the same time, no one disputes that acceptance of re- 
sponsibility is a critical component of sexual offender treat- 
ment programs. See Pet. App. 28a-29a; Practitioner’s Guide 
73; J.A. 100, 107. As one commentator has explained: “With- 
out acceptance of responsibility, the key goals of treatment 
are stymied. Denial precludes addressing cognitive dis- 
tortions, developing empathy for victims, identifying risk 
factors that may serve as warning signals, developing much 
needed social skills, and examining deviant sexual arousal.” 
Stefan J. Padfield, Self-Incrimination and Acceptance of 
Responsibility in Prison Sex Offender Treatment Programs, 
49 U. Kan. L. Rev. 487, 498 (2001). 

Respondent has not argued that the Kansas SATP and, in 
particular, its acceptance-of-responsibility goal are merely 
subterfuges for gathering incriminating evidence with re- 
spect to either the offense of conviction or prior sexual 
offenses. Cf. Ferguson v. City of Charleston, 121 S. Ct. 1281, 
1291 (2001); Minnesota v. Murphy, 465 U.S. at 423 n.2. That 
argument would not be plausible in any event. No inmate 
has been charged with any offense based on information dis- 
closed during treatment and, although information about 
other offenses may be disclosed, SATP staff do not 
“investigate” such offenses during treatment sessions. See 

p. 4, supra. To be sure, treatment presents the potential for 
eliciting information that may implicate criminal activity, but 
that potential incidental effect does not in itself render the 
entire program illegitimate. 

12 

In addition, the deprivations about which respondent 
complains directly promote the State’s legitimate penological 
objective of reducing sexual recidivism. Not every convicted 
sexual offender welcomes treatment. Because denial is a 

12 To the extent that the program were in fact abused by the State as 
a subterfuge for investigating criminal offenses, an inmate could challenge 
the use of any incriminating information obtained as a result of that abuse. 
Cf. Bouknight, 493 U.S. at 561-562. 

23 

common obstacle to seeking rehabilitative treatment, prison 
officials must be free to create incentives for convicted 
sexual offenders to participate in such treatment programs. 
Indeed, if it were not for the incidental effects of partici- 
pation on asserted Fifth Amendment interests, nothing in 
the Constitution would even arguably prevent a State from 
directing inmates to participate in a valid rehabilitative 
program. Extending or withholding the type of privileges at 
issue in this case to provide an incentive for participation in 
the SATP strikes an appropriate balance between the 
inmate’s interest in avoiding self-incrimination and society’s 
interest in fostering rehabilitation. 

13 

Providing more favorable housing to inmates who agree to 
participate in such programs is also an appropriate incentive. 
That is especially true when, as here, the differences in hous- 
ing reflect incidental differences between the treatment 
facility and other facilities, and when housing changes allow 
additional inmates to receive rehabilitative treatment de- 
clined by others. See J.A. 99. 

14 

13 Indeed, in our view, programs that involved substantially greater 
incentives would nonetheless strike a constitutional balance. For example, 
the Fifth Amendment privilege should not pose an obstacle to a program 
that conditions early release or parole on participation in a sexual treat- 
ment program similar to Kansas’ SATP. A fortiori, encouraging partici- 
pation in a treatment program within the prison walls is constitutional. 

14 The court of appeals objected to the “automaticity” of the change in 
institutional privileges resulting from respondent’s decision not to partici- 
pate in the SATP. Pet. App. 25a. Although this Court has relied upon the 
fact that a consequence did not automatically follow from a decision to 
invoke the Fifth Amendment privilege as a reason for finding no 
compulsion, e.g., Minnesota v. Murphy, 465 U.S. at 438, it has never held 
that the “automaticity” of a consequence is in itself a basis for finding 
compulsion, and this case would be a singularly inappropriate vehicle for 
doing so. In the prison context in particular, prison officials and inmates 
alike benefit from clear guidelines establishing the consequences flowing 
from an inmate’s decision to behave in a particular fashion. 

24 

2. The absence of ready and reasonable alternatives for 
reducing recidivism among convicted sexual offenders 
bolsters the constitutionality of the SATP under the Turner 
analysis. Instead of considering the availability of alter- 
native treatments, the Tenth Circuit seized upon the alter- 
native of simply immunizing any statements made during 
treatment. Id. at 30a. That analysis is flawed on three 
levels: it takes all self-incrimination claims outside of Turner; 
it denies deference to prison officials in advancing legitimate 
penological goals; and it ignores that the program’s con- 
fidentiality limits themselves are reasonably tailored to 
legitimate penological goals. 

The most fundamental problem with the Tenth Circuit’s 
analysis is that it would ensure that the government could 
never satisfy the reasonable-alternatives prong of the 
Turner analysis in a case that implicated a prisoner’s 
interests in avoiding self-incrimination. Immunization is 
always an alternative, at least in theory, to giving an inmate 
the choice between forgoing a potential benefit and partici- 
pating in a rehabilitative program that incidentally may 
elicit potentially incriminating statements. The Tenth 
Circuit described immunization as the “obvious, easy alter- 
native” and “one that has been contemplated by the 
Supreme Court since the very inception of the Fifth 
Amendment right against self-incrimination.” Pet. App. 30a. 
In light of this supposedly “obvious, easy alternative,” the 
Tenth Circuit discounted Kansas’ penological interests and 
concluded that this “factor weighs heavily in favor of 
[respondent].” Id. at 31a. But that proves too much. It 
effectively holds that whenever a prison regulation 
implicates a prisoner’s self-incrimination right, the govern- 
ment must offer complete immunity to avoid a constitutional 
violation. Turner stands for the opposite proposition—that 
prison regulations do not violate the Constitution simply 
because they implicate constitutional rights. 

25 

The Tenth Circuit’s singular focus on the possibility of im- 
munization deprived prison officials of the deference that 
they are due under Turner. The Tenth Circuit was so con- 
vinced of the sensibility of granting immunity that it nakedly 
substituted its judgment for that of the relevant state 
officials, stating: “We are inclined to believe that prisons 
may better accomplish their goal of rehabilitation if they 
encourage inmates to admit their sex offenses by granting 
immunity or making statements privileged.” Pet. App. 30a. 
But decisions concerning whether to immunize prisoner 
statements and the scope of confidentiality or immunity are 
precisely the kind of decisions that state officials, rather than 
federal courts, should be making. Although immunization is 
always an option in theory, it is not always a realistic or 
desirable option in practice. If officials must choose between 
immunizing incriminating statements concerning child abuse 
and offering effective treatment, treatment goals may suffer. 
That is not to say courts should ignore the possibility of 
offering immunity in the Turner analysis. But government 
decisions as to the scope of confidentiality and immunization, 
no less than other decisions that implicate constitutional 
interests, should be accorded deference. 

The Tenth Circuit’s analysis ignored the substantial con- 
fidentiality provided inmates under the SATP, and that the 
limitations on that confidentiality are “reasonably related to 
legitimate penological interests.” Turner, 482 U.S. at 88. 
The SATP broadly grants participants confidentiality for 
statements made during treatment. That broad grant of 
confidentiality has three principal limits. Participants are 
warned at the outset that statements will not remain 
confidential to the extent they involve child abuse, “situa- 
tions which could be harmful to [the inmate] or others, or a 
threat to the orderly operation of the facility.” J.A. 35. 
BOP’s own treatment program has three parallel exceptions 
to confidentiality. See p. 27, infra. 

26 

Those exceptions clearly further legitimate penological 
and public safety interests. To begin with, the State mani- 
festly has an overwhelming interest in preventing and re- 
dressing the sexual abuse of children and, accordingly, 
numerous States and the federal government make an 
exception to patient-therapist privileges for information 
relating to child abuse. See Jaffee v. Redmond, 518 U.S. 1, 
34 (1996) (Scalia, J., dissenting) (listing state laws); see also 
42 C.F.R. 2.22(b)(4) (establishing similar exception for 
federally assisted drug and alcohol counseling programs). 

Prison officials have an equally obvious interest in re- 
dressing threats to individuals within the prison system, 
such as ongoing sexual abuse of other inmates. Indeed, 
protecting “institutional security and safety” is within the 
heartland of legitimate penological concerns. Turner, 482 
U.S. at 93. BOP’s treatment program recognizes that and 
places similar limits on confidentiality, see p. 27, infra, as do 
other federal counseling programs. See 42 C.F.R. 2.22(b) 
(information about commission of crimes on premises or 
against individuals involved in program must be reported). 
When “[o]ther well-run prison systems, including [BOP], 
have concluded that substantially similar restrictions on 
[confidentiality] were necessary to protect institutional 
order and security,” it is clear that blanket immunization is 
not a ready or reasonable alternative. Turner, 482 U.S. at 93. 

D. If The Court Concludes That The Kansas SATP 

Violates The Fifth Amendment, It Should Be Careful 

To Avoid Casting Doubt On The Validity Of Other 

Treatment Programs 

If this Court concludes that the Kansas SATP violates 
respondent’s Fifth Amendment rights, we urge it to avoid 
casting doubt on the validity of other sexual offender treat- 
ment programs, including the federal program, which may 
differ in material respects from the program at issue here. 

27 

BOP’s program is conducted at a single facility in Butner, 
North Carolina and has only 112 spaces. The program 
“adheres to the notion that * * * criminal sexual behavior 
can be effectively managed in most cases through competent 
treatment and intensive supervision.” Program Descrip- 
tion 1. “[E]ach program participant is expected to * * * 
[demonstrate] [c]omplete acceptance of responsibility for 
[his] sexual crime(s).” Id. at 2. The “confidentiality [of 
disclosures] is protected at all times, except in cases where 
there is potential harm to self or others, when the security of 
the correctional institution is threatened, or when there is 
suspected child abuse.” Id. at 3. Inmates are advised of 
those limits at the outset, and inmates who choose to partici- 
pate in the program must agree to them in writing. 

BOP does not condition the availability of institutional 
privileges on participation in its treatment program, in 
which there are only a limited number of spaces. Inmates 
must “volunteer for participation in the treatment program 
and demonstrate a commitment to behavioral change.” Pro- 
gram Description 3. In addition, BOP seeks only “the most 
motivated and psychologically suitable offenders” for treat- 
ment. Id. at 1. “[F]ailure to achieve treatment goals may 
result in programmatic probation or immediate expulsion,” 
which may in turn result in the inmate’s transfer to his 
“parent facility.” Id. at 3, 4. 

Even under the expansive reasoning of the court of 
appeals, there is no basis for concluding that the possibility 
of such a transfer exerts impermissible compulsion within 
the meaning of the Fifth Amendment. No loss of insti- 
tutional privileges flows from an inmate’s decision not to 
participate in the program. Moreover, the federal goal of 
reducing sexual recidivism is undeniably legitimate and 
directly promoted by offering this type of treatment to 
convicted sexual offenders. In short, the federal program is 
clearly constitutional under the Fifth Amendment and 
Turner. 

28 

* * * * * 

Studies increasingly indicate that rehabilitative programs 
that promote acceptance of responsibility may enable sexual 
offenders to manage their criminal sexual impulses and 
thereby reduce sexual recidivism. The Court should leave 
correctional officials with the leeway that the Constitution 
and our laws afford them to develop and encourage inmate 
participation in such commendable treatment efforts. 

CONCLUSION 

The judgment of the court of appeals should be reversed. 

Respectfully submitted. 

THEODORE B. OLSON 

Solicitor General 

STUART E. SCHIFFER 

Acting Assistant Attorney 

General 

PAUL D. CLEMENT 

Deputy Solicitor General 

GREGORY G. GARRE 

Assistant to the Solicitor 

General 

VICKI MARANI 

Attorney 

JULY 2001