In noting the state did not provide any evidence to support its arguments, the Southern Indiana District Court restored an inmate’s earned credit time which he had lost for refusing to participate in a sex offender program.
Mark Cade, a prisoner in the Indiana Department of Correction, filed a petition for a writ of habeas corpus for loss of credit time in the 15 disciplinary cases he incurred for not participating in the Indiana Sex Offender Management and Monitoring Program.
The SOMM program was the subject of a class action brought by DOC inmates in 2013. Like Cade, the men had been disciplined for not taking part in the program but they argued the requirement they participate violated their Fifth Amendment rights against self-incrimination. The men claimed the program required them to admit they were guilty of conduct for which they were convicted and sentenced as well as other potentially criminal actions for which they had not been charged.
In an April 2019 ruling, the 7th Circuit Court of Appeals agreed. The appellate court affirmed the Southern Indiana District Court’s order that the lost good-time credit be restored and all disciplinary sanctions for failure to participate in the program be vacated.
Upon receiving Cade’s habeas petition, the district court severed the claims into 15 separate habeas proceedings. The current action, Mark A. Cade v. Mark Sevier, 1:19-cv-02923, concerns Cade’s conviction and sanctions that began with a conduct report written in August 2015.
Cade had been disciplined and deprived of 180 days earned credit time for not participating in the SOMM program. According to the hearing officer at the disciplinary hearing, Cade stated he was not refusing to take part in the program but rather refusing to participate with a certain counselor.
However, Cade countered the hearing officer’s account of his statement at the disciplinary hearing was incomplete. He asserted he had said he refused to participate in the program with a particular counselor because she demanded that he make incriminating statements.
Southern Indiana District Court noted the state did not present any evidence that contradicted this conclusion. Instead, the state based it assertion that Cade did not want to participate in the program with a certain counselor entirely on the conduct report and the hearing officer’s report.
“Mr. Cade did not write those statements,” wrote Jane Magnus-Stinson, chief judge of the U.S. District Court for the Southern District of Indiana. “Moreover, they do not conflict with Mr. Cade’s testimony that he refused to participate with Ms. (Lonel) Stites because she demanded that he admit conduct in violation of the Fifth Amendment rights.
“… The respondent could have rebutted Mr. Cade’s testimony with affidavits from Ms. Stites or Dr. Hofman stating that Mr. Cade never raised the requirement that he admit to criminal conduct as a reason for refusing to participate in the SOMM program. He did not do so.”