DOC sex offender program faces Fifth Amendment test

The question of whether Indiana’s treatment program for convicted sex offenders is constitutional is not only providing a case of first impression for the 7th Circuit Court of Appeals but could also give the U.S. Supreme Court the opportunity to clear the confusion over when a prison violates an inmate’s Fifth Amendment rights against self-incrimination.

At issue in Donald Lacy et al. v. State of Indiana, 1:13-cv-811, is the Indiana Sex Offender Management and Monitoring Program for inmates convicted of a sex offense. Prisoners must enroll and detail the crimes of which they have been convicted or lose their good-time credits and possibly their chance of early release.

Judge Richard Young of the U.S. District Court for the Southern District of Indiana found the punishment takes away the offenders’ right to liberty and constitutes compulsion in violation of the Fifth Amendment. In September, he granted the prisoners’ class petition for a writ of habeas corpus and ordered the state to quit imposing penalties on those who do not participate in the sex offender therapy program.

Immediately, Indiana Attorney General Curtis Hill’s office filed an emergency motion to stay Young’s order pending an appeal to the 7th Circuit. Young denied the motion for an emergency stay Oct. 30.

Regardless of what happens at the appellate court, Sara Varner, assistant federal defender with Indiana Federal Community Defenders, believes the case could be taken to the Supreme Court because it appears to cover the issue left open in McKune v. Lile, 536 U.S. 24 (2002).

There, the plurality of justices concluded a sexual abuse treatment program in Kansas state prison was not unconstitutional because the loss of certain privileges for declining to participate did not create “atypical or significant hardships.” Yet both the plurality and the concurring opinion by Justice Sandra Day O’Connor noted programs that extend the length of imprisonment for inmates who do not self-incriminate could run afoul of the Constitution.

The Lacy petitioners successfully argued they have a statutory right to good-time credits under Indiana Code 35-50-6-3. Indiana essentially guarantees credit for time served, unlike other states, and when it takes those credits away from sex offenders who do not enroll in treatment, then the sanctions interfere with the prisoners’ liberty interest, failing the test in McKune.

“They are entitled, statutorily, to be able to earn credit toward this sentence like any other convicted prisoner,” Young wrote of the inmates convicted of sex offenses. “The denial of their ability to do so for their failure to incriminate themselves in the course of the SOMM Program implicates their liberty rights and results in compulsion in violation for the Fifth Amendment.”

Varner called the Indiana Sex Offender Management and Monitoring Program “very troubling” and difficult even for those who want to participate. “It is outside the realm of what is normal and appropriate,” she said.

The Indiana Department of Correction program intended to rehabilitate sex offenders mandates participation or the inmates will face disciplinary actions and sanctions, such as the loss of the good-time credits.

Once in the program, the prisoners must admit their guilt and detail their sexual crimes including those for which they have not been charged or convicted. They are required to fully disclose the intimate and personal details of their life to a SOMM counselor and they may have to submit to a polygraph.

In addition, they only have limited confidentiality protection. Information about their past behaviors and their case might be shared with others including treatment providers, DOC personnel, community providers of other treatment programs, family members, employers, landlords and job training programs.

Varner linked the program’s harsh standards to the ongoing myths about sex offenders. Contrary to commonly held belief, these individuals do not recidivate at a higher rate than other offenders.

In its motion for a stay, Indiana appeared to be alluding to that fear. It argued the “unquestionable and irrevocable harm” to the citizenry if the order is allowed to stand.

“Here, no member of the petitioner class have benefitted from rehabilitative care or treatment,” the state asserted. “The release of these offenders may pose a serious danger to the public while the (state) appeals the Court’s Judgment.”

The petitioners filed a motion in opposition. They pointed out two of the named petitioners have already been released and two others are close to the end of their sentences. Also, they pose no danger to the public because they are all 50 or older and, statistically, have aged out of criminality. Finally, as sex offenders they are not likelier to commit a new crime than any other felon, petitioners argued.

Lacy was convicted in 2008 of Class C felony child molesting but always maintained his innocence. He initially filed his compliant, individually and on behalf of others similarly situated, pro se in federal court in 2013. The Southern Indiana District Court subsequently dismissed the case, but the 7th Circuit remanded, and Varner was appointed to represent the petitioners.

In his original complaint, Lacy wrote that he and the plaintiff class were subjected to “reports of conducts, segregation, loss of good time credit, loss of credit class time and loss of life, liberties and freedoms for … refusing to admit to acts that they denied at trial.”

The district court seemed to agree.

“Here, by taking away earned credit time that an inmate is otherwise guaranteed, disciplinary action for failure to participate in the SOMM program imposes penalties that go well beyond the criminal process through which the inmate was convicted,” Young wrote.•