7th Circuit rules DOC sex offender program violates Constitution

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The Indiana Lawyer on 4/26/2019 by Marilyn Odendahl

Finding the disclosures provide information that any law enforcement agent “would love to have,” the 7th Circuit Court of Appeals has ruled Indiana’s requirement that sex offender inmates give detailed accounts of their past actions violates the Constitution’s protections against self-incrimination.

Donald Lacy, a sex offender inmate in the Indiana Department of Correction, filed a class action on behalf of all inmates who lost good-time credits and a demotion in credit class because they failed to meet the requirements of the Indiana Sex Offender Management and Monitoring program. Lacy argued the disclosures required and the penalties imposed for non-participation constituted a violation of his Fifth Amendment right to be free from compelled self-incrimination.

The U.S. District Court for the Southern District of Indiana agreed. It ordered the inmates’ lost good-time credits to be restored and vacated all disciplinary actions and sanctions for failure to participate in INSOMM.

On appeal, Indiana countered that the INSOMM program does not carry any sufficiently serious risk of incrimination to trigger the protections of the Fifth Amendment. Moreover, even if it did, the state continued, the revocation of credit time and the demotion of credit class do not add up to unconstitutional compulsion.

The 7th Circuit found the INSOMM workbooks asked for detailed and specific information. Offenders are required to reveal the names and ages of their victims, what parts of the body were touched, where and when the abuse occurred, and how the victims were selected and groomed.

Based on their answers, the offenders may then be given a polygraph examination. There, they will be asked such things as how many children they have molested and how many times they made child pornography.

Indiana’s contention that the answers are so general they are not able to be used in an investigation or count as an admission at trial did not convince the circuit panel.

“Saying so does not make it so,” Chief Judge Diane Wood wrote for the court. “This ipse dixitdoes not explain why granular descriptions of the circumstances surrounding specific sex crimes and patterns of criminal sexual behavior would prove useless to investigators or prosecutors. … The questions posed to an INSOMM participant would yield answers that any competent sex-crimes investigator or prosecutor would love to have.”

Citing McKune v. Lile, 536 U.S. 24 (2002), the 7th Circuit ruled Indiana’s denial of good-time credit as a means of inducing offenders to furnish information is an impermissible compulsion to self-incriminate.

“The decision to decline participation in INSOMM is not merely a trigger for a later stage in which the state takes a more holistic view of an inmate’s progress toward rehabilitation,” Wood wrote. “Instead, a prisoner’s choice to invoke his privilege against self-incrimination is the direct cause of his loss of credits – credits that otherwise would be statutorily guaranteed… .”

The case is Donald Lacy v. Keith Butts, 17-3256.