McKune, Warden, et al. v. Lile, Robert (06/10/2002)

Questions presented: Does the revocation of a correctional institution privileges violate the 5th Amendment's privilege against self-incrimination when the prisoner has no liberty interest in the lost privileges and such revocation is based upon the prisoner's failure to accept responsibility for his crimes as part of a sex offender treatment program?

BY JOHN HALLORAN, MEDILL NEWS SERVICE

Robert Lile was convicted of rape, aggravated sodomy and kidnapping in 1983. Though maintaining his innocence, he was sentenced to 29-and-a-half years to life in prison.

Eleven years into his term at the Lansing Correctional Facility, the Kansas Department of Corrections added the Sex Offender Treatment Program to Lile's Inmate Program Agreement. Lile was required to disclose his sexual history to be admitted to the program, including the crime for which he still maintained his innocence and any other uncharged sexual offenses. He refused to make these admissions and in October 1994, he refused to sign his amended agreement.

Lile tried to remedy the situation through prison administrative channels, but officials were unwilling to amend his IPA.

Because of his refusal to sign the agreement, Lile claimed, he could have been subject to transfer to maximum security, he would have lost privileges such as his personal television and full access to prison activities and facilities. He would also receive a reduction in pay and be allowed to spend $120 less per month at the prison canteen. His visitation privileges also would be reduced. Lile and his lawyers were granted an injunction which prevented any loss of privileges.

Lile filed suit in U.S. District Court in Kansas, naming the warden of the Lansing Correctional Facility as the defendant. The suit charged that the required disclosure violated his 5th Amendment protection against self-incrimination and his 4th Amendment right to privacy and bodily integrity, because of psychiatric examinations required in the treatment program.

Lile, still a prisoner at Lansing, has maintained his status over the years, retaining a job, expanded visitation and access to prison activities and facilities. He is not currently participating in the Sex Offender Treatment Program, but his lawyer said that he is involved in other treatment programs.

The 5th Amendment says no individual "shall be compelled in any criminal case to be witness against himself." But the U.S. Supreme Court has interpreted this broadly in Lefkowitz v. Turley and in Minnesota v. Murphy to mean that an individual is protected from answering any official questioning that might incriminate him in future proceedings.

The state said there was no violation of the 5th Amendment because the withholding of discretionary privileges was not considered compulsion within the bounds of the 5th Amendment.

The District Court found that the disclosure of sexual history was "sufficiently incriminating for Fifth Amendment purposes," and that the information required was a violation of 5th Amendment rights.

The 4th Amendment question arises from a test that is done with prisoners in the treatment program, during which a pressure sensitive ring is placed around the subject's penis to measure the response to various sexual scenarios, including some graphic and nonconsensual situations.

The District Court found that while this testing is invasive, it is part of a voluntary treatment program and that the state's interest in rehabilitation outweighs the prisoner's right to privacy.

The 10th Circuit Court of Appeals upheld the decision of the District Court with regard to the 5th Amendment issue, but the Court remanded the 4th Amendment claim back to the District Court with instructions to dismiss the claim.

"Supreme Court jurisprudence concerning the Fifth Amendment right against self-incrimination instructs that, unless an individual is given immunity at the time of his potentially incriminating testimony, he may not be confronted with the dilemma of either answering questions that may incriminate him or being substantially penalized solely for the assertion of his constitutional privilege," Judge Monroe McKay wrote in the 10th Circuit opinion. "In other words, a State may not impose substantial penalties because a [declarant] elects to exercise his Fifth Amendment right not to give incriminating testimony against himself."

The court vacated the 4th Amendment claim because Lile would not have to participate in examinations if he did not participate in the treatment program.

The state concedes that the information required as part of the treatment program is sufficiently incriminating, and that they would prosecute for any new crimes to which he admitted. On their appeal to the U.S. Supreme Court, the state said that there is not sufficient compulsion for a 5th Amendment claim because Lile is not punished for not participating in the treatment program. His privileges. are simply reduced.

On May 14, 2001, the U.S. Supreme Court granted certiorari in the case.

On October 1, the Court allowed the U.S. Solicitor General to participate in the case and split the time for oral argument.