Legal Issues & Court Cases Affecting Sex Offenders & Truthful Recidivism

This page does not include deaths, revenge attacks, suicides,
murders or other harm to sex offenders while in jails or prisons.
For those stories CLICK

SEX OFFENDERS DENIED ACCESS TO COMMUNITY REENTRY PROGRAMS:

10-11-2002 Yazoo County, Mississippi: The Mississippi Department of Corrections on Thursday continued its push toward total accreditation by the American Correctional Association. ACA Auditor Chairperson Phoebe Johnson said quality of life, judged on whether staff and inmates are treated fairly, is a top priority. Plato Bennett, the second auditor, said of Madison center, "This is one of the cleanest, neatest facilities I have been in." Community work centers are community-based, minimum-security facilities designed to provide a systematic re-introduction of an offender back into community life and provide an alternative source of labor for state agencies and local governments. Only inmates within seven years of their earliest release date who are not violent or sex offenders can be assigned to a work center.

Comment: Apparently it is considered fair to deny these offenders access to any community reentry programs, and at the same time recognize that these offenders will be reentering the community. What does "treated fairly" mean??

HOMELESS SEX OFFENDERS,
RETURNED TO PRISON:

10-10-2000 Wilkes Barre Pa: Is homelessness a status crime??? -- Two inmates who finished their prison sentences were sent back to jail because they didn't have a place to live upon release and thus couldn't meet sex offender registry requirements. The practice has drawn criticism from defense lawyers who say it is unconstitutional and unfair to inmates who have little or no resources after being in jail for years. "There's a constitutional right of the freedom to travel," said attorney Karl Baker, deputy chief of appeals for the Defenders Association of Philadelphia.

Upon their release, inmates "have a constitutional right to walk out the door and keep walking," he said. Matthew Dix, convicted of rape 17 years ago in Philadelphia, finished his sentence Oct. 3 at the state Correctional Institution at Dallas, but has been behind bars ever since for lack of $5,000 bail. He is the second Pennsylvania inmate in three months to face such a dilemma, and corrections officials say more than 10 sex offenders in the past year did not comply with the residency registration. "The point of the law is to know where these individuals are," said Sgt. Nancy Shaheen of the Megan's Law Unit in Harrisburg.

William E. Kilcullen, 60, the other inmate, was charged with failing to meet the requirement after being released following 10 years in prison for statutory rape and incest. The charge was later dropped after Kilcullen was able to find a residence. Dix, who declined to be interviewed, is awaiting a preliminary hearing to determine if there is enough evidence for the felony charge that could send him back to state prison. Prosecutors say he was made aware he would be put back in jail because his first address was rejected.

*** Prison Therapy ***
(Mostly this is a 5th Amendment Rights Issue):

» 8-20-03: DOES COERCING A CONFESSION VIOLATE THE FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION? The Supreme Court Considers the Question

A: Custodial Interrogation: The First Doctrinal Path; B: Immunity: The Second Doctrinal Path; C: The Penalty Cases: The Third Doctrinal Path.

The three lines of cases can be read to point to a very specific definition of the Fifth Amendment privilege. It is a right not to be compelled to say anything that could potentially – from the perspective of a suspect at the time she experiences compulsion – expose herself to future prosecution.

Not only does the precedent suggest this definition of the privilege, but the definition is a sensible one. It guards against the evil of placing a person in a position of having to provide statements that put him at risk of prosecution. This position is cruel because of the fear and uncertainty it necessarily imposes upon a suspect. (by Sherry Colb)

» 11-27-2002 Wisconsin: Offender's 5th. Amendment rights ruled violated! Probation revocation reversed for Gary Tate who refused to admit crimes. A convicted sex offender can detail his or her crimes while in treatment and, as long as the case is on appeal, those statements can never be used against the offender, the state Supreme Court ruled Thursday in a Washington County case.(JS Online.com) In a second article by Manitowoc Hearld Times

Probationer can refuse to participate in treatment. The court concluded that its previous holding in State v. Evans, 77 Wis. 2d 225, 234, 252 N.W.2d 664 (1976) - that a probationer cannot be revoked for invoking his privilege against self-incrimination absent a grant of immunity - compels a holding that the revocation of Gary Tate’s probation was unconstitutional.(by David Ziemer, Wisconsin Law Journal) Self-Incrimination Case Analysis by David Ziemer. (Court of Appeals, No. 00-1635, decision 5-2-2001) (Supreme Court decision 11-21-2002) Note: Here is an excellent link to many Wisconsin cases testing Probation conditions.

4-26-2003 Oklahoma: DOC Sex Offender Program is Being Overhauled:

As the result of a court decision, Oklahoma Court of Criminal Appeals Gary Dean Childers -vs- Booher (Warden), decision issued 5-9-2002, sex offenders will not have to worry about admissions made during, or before, sex offender therapy. The oklahoma court ruled that requiring sex offenders to admit facts of all crimes, before being permitted to enter therapy, was an unconstitutional violation, and ordered that the program be changed. See Childers -vs- Booher. This is an excellent, in depth, case review of 5th amendment rights.

AUTHOR NOTE: However, why do many lower courts ignore the Allen decision below:
Sex offenders have long tried to claim that their 5th Amendment privilege applies to questions asked of them during sex offender therapy, or as a prerequisite to admission to therapy. It is very possible that, whatever an offender says, could be used in a future civil or criminal proceeding. Several courts have held that the 5th Amendment privilege is not applicable under those circumstances. Yet, in ALLEN v. ILLINOIS, 478 U.S. 364 (1986) the US Supreme Court said:

"The Self-Incrimination Clause of the Fifth Amendment, which applies to the States through the Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1 (1964), provides that no person "shall be compelled in any criminal case to be a witness against himself." This Court has long held that the privilege against self-incrimination "not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, BUT ALSO `privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.'" Minnesota v. Murphy, 465 U.S. 420, 426 (1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)); McCarthy v. Arndstein, 266 U.S. 34, 40 (1924). In this case the Illinois Supreme Court ruled that a person whom the State attempts to commit under the Act is protected from use of his compelled answers in any subsequent criminal case in which he is the defendant. What we have here, then, is not a claim that petitioner's statements to the psychiatrists might be used to incriminate him in some future criminal proceeding, but instead his claim that because the sexually-dangerous-person proceeding is itself 'criminal,' he was entitled to refuse to answer any questions at all."

AUTHOR NOTES:
Other recent cases have held that, "the state's interest in, treating sex offenders so that the offender is not a danger to society upon release, outweighs the offender's 5th Amendment rights". This logic is absurd, assuming arguendo it could then follow that, in a trial, the state's interest in finding the truth would prevent the defendant from asserting any 5th. Amendment rights!

Further, when/if the offender is released into society, a switch is automatically thrown; the offender becomes a dangerous person simply by being forced to register as a prior sex offender. Clearly the state abuses its position in the courts to circumvent constitutional protections.

In addition, if the offender is not released, his prior statements (made during therapy) can be used in a civil commitment proceeding, because courts have held these civil commitment proceedings are not punishment. A further abuse of the court system.

This may explain the feelings of the Boston lawyer (See 7-28-2002 below). If treatment is ever to work, the treatment environment and everything said therein must be held sacrosanct from future use in any form of proceeding. As there must be finality in court judgments, there must be finality in the past. If the state truly has an interest in treating sex offenders, for the betterment of society, then the state must accept finality in the past. Immunity fosters a better society (Restorative Justice), its absence is to further insidious punishment!

Here is a wonderful article on this very topic: Court-Mandated Treatment and Required Admission of Guilt in Cases of Alleged Sexual Abuse: Professional, Ethical and Legal Issues by Judith K. Adams

1-8-2003 Delaware: 3rd. Circuit decision of an appeal of a federal District of Delaware decision. This case, USA -vs- Albert M. Lee, is rather unique in that Lee is appealing one specific "Condition of Supervised Release." That condition requires Lee to submit to random polygraph (lie detector) exams at the whim of his probation officer. Lee was convicted of a sex offense (child pornography) and claims that, the polygraph examiner could ask incriminating questions about uncharged offenses or other conduct and that would violate his 5th. amendment rights. Lee relies on Minnesota -v- Murphy (cited above in Allen) to support his position.

The court held, that given there is no violation yet, and as long as the examiner or his probation officer does not prevent Lee from asserting his 5th. amendment right to remain silent, imposing the condition of probation -at this point- does not violate Lee's 5th. amendment rights. The court added, that if Lee's probation is later revoked based upon his assertion of his 5th. amendment rights, the court can revisit the case at that time. The court also noted, that the examiner may not interpret -Lee's response (i.e., asserting his 5th. amendment right)- adversely, because that would be preventing him from asserting his 5th. amendment right to remain silent to a question posed. The court recognized that, during a polygraph exam it is highly likely that physiological changes would take place when a person asserts the 5th. amendment. This is an excellent, in depth, case review of a polygraph situation.

9-27-2002 MOULTONBORO NH: ON REMAND FROM THE US SUPREME COURT: A Bay State man convicted of sexual assault has been denied parole, but ordered freed by a judge. During a Sept. 12 parole board hearing, Graf was denied his freedom because he has not completed the prison’s Sexual Offender Program. "I think that it is tragic that I was denied parole, especially given my record, for exercising my Fifth Amendment rights and appealing my conviction," Graf said, prior to learning Judge Nadeau had ruled to set him free.

In the state's response to the inmate lawsuit (Ainsworth, Wayne, et al. -v- Stanley, Comm'r NH DOC 01-648 US Supreme Court), the state says it does not dispute that completion of the SOP functions as a de facto requirement of parole for most New Hampshire sex offenders. During a prior hearing, the executive director of the Adult Parole Board testified that sex offenders who do not complete the SOP have virtually no chance of being paroled. Ninety-seven to ninety-eight percent of the sex offenders who have been released from prison have completed the SOP, he said. The handful that haven’t, have presently truly extraordinary circumstances. He testified that one inmate was released without taking the SOP because he was the sole caregiver for his blind and elderly mother. "The parole board confirmed to Mr. Graf exactly what the plaintiffs allege in this lawsuit, that sex offenders simply will not be paroled until completion of the SOP, which of course requires the Fifth Amendment problem litigated here," Sheehan wrote.

4-3-2001 New Hampshire: A group of convicted sex offenders (Plaintiffs) claim, pursuant to 42 U.S.C. § 1983, that the New Hampshire Department of Corrections (Defendants) violated their Fifth Amendment right against self-incrimination by requiring them to disclose their histories of sexual misconduct to participate in a sex offender treatment program. The plaintiffs argue that the required disclosures are incriminating because they could lead to future prosecutions or perjury charges, or could affect ongoing appeals. They argue that the disclosures are compelled because completion of the treatment program is a de facto requirement for parole and for maintaining residence in desired prison housing. The district court granted the defendant's motion to dismiss, finding that the plaintiffs failed to state a cognizable Fifth Amendment claim. The 1st. Cir. Court of Appeals affirmed. This case was then appealed to the US Supreme Court: Ainsworth, Wayne, et al. -v- Stanley, Comm'r NH DOC 01-648

This case was appealed to the US Supreme Court (Ainsworth, Wayne, et al. -v- Stanley, Comm'r NH DOC 01-648). On 6-28-2002 the court VACATED the 1 Cir decision, granted certiorari and remanded the case back to the 1 Cir Court of Appeals in light of its other case: McKune -v- Lile. The result of that remand is shown above in the 9-27-2002 MOULTONBORO NH: where the judge released one of the inmates from prison.

10-5-2000 Kansas: in 1994, a prison counselor decided that Robert Lile (serving a sentence for a sex offense) should participate in the prison's Sexual Abuse Treatment Program. Lile started talking to other inmates who had gone through the program, and they told him horror stories. Lile found out that participants had to fill out sexual-history forms that asked them to list all the victims they had assaulted or molested, including the name, age, number of sex acts, and description of sex acts, as well as the manner of getting the victims to cooperate and keep silent. The forms had limited confidentiality requirements, and the information could be used to prosecute the inmates for other crimes and was subject to subpoena. Inmates who took part in the program also had to attend videotaped group therapy sessions, discuss their sexual pasts while hooked up to a polygraph, and, worst of all, undergo a test called a "penile plethysmograph." For the plethysmograph, prison officials hooked inmates' genitals to a machine that recorded their arousal levels in response to graphic sex scenes depicted on an audiotape.

"I'm not against treatment of dangerous sex offenders," Lile says. "But I think they go about it the wrong way -- videotaping you, having you talk about your sexual history in detail in a group so that everybody and their brother is coming out and telling what went on in there, making you say that your father molested you and if you say it's not true you're lying, forcing you to sign confessions that can be used against you, and making you go through this humiliation of being hooked up and forced to listen to these disgusting things about children. It's just not right." The court agreed. In 1998, a federal judge found that the State of Kansas had violated Lile's Fifth Amendment rights by forcing him to take part in the program.

However, the court ruled that forcing him to take the plethysmograph did not violate his righ s to privacy and bodily integrity. Both parties appealed, and last month a 10th-circuit court of appeals three-judge panel upheld the district court's decision on the Fifth-Amendment violation and ordered the state to make the program voluntary or provide immunity for the participants.

"By requiring complete and written disclosure of a prisoner's sexual history, (the program) clearly (sought) information that could incriminate the prisoner and subject him to further criminal charges," the judge wrote. "This is especially true in this case because no confidentiality is afforded such disclosures; an admission of any information concerning uncharged sexual offenses against minors must be turned over by the (program) staff to the proper authorities under Kansas law." The appeals court did not rule on the issue of the plethysmograph, however, saying that it was a moot point. Lower case: Lile -vs- McCune 10th Cir. This case was appealed to the US Supreme Court: 6-10-2002 in Lile -vs_ McCune

7-28-2002 Boston Mass (Boston Globe Newspaper by Michele Kurtz): Since 1999, when legislators passed a new law designed to keep the state's most dangerous sexual predators behind bars, some defense lawyers have been warning sex offenders not to take part in therapy while in prison because treatment records can be used by prosecutors when they ask that a convicted sex offender be deemed "sexually dangerous." If a judge or jury agrees, the offender can be kept indefinitely in a medium-security treatment center, long after he has completed his original criminal sentence. "I actually give the advice, 'Shut up,' to my clients," said Boston lawyer John Swomley, who represents sex offenders whom prosecutors want "civilly committed" to a treatment center. "By and large, they use what you say in therapy against you. And if you don't talk in therapy, they say that because you don't talk in therapy you're still sexually dangerous. So you're damned if you do, and you're damned if you don't.".

6-10-2002 10th Cir Court of Appeals: Respondent was convicted of rape and related crimes. A few years before his scheduled release, prison officials ordered respondent to participate in a Sexual Abuse Treatment Program (SATP). As part of the program, participating inmates are required to complete and sign an "Admission of Responsibility" form, in which they accept responsibility for the crimes for which they have been sentenced, and complete a sexual history form detailing all prior sexual activities, regardless of whether the activities constitute uncharged criminal offenses. The information obtained from SATP participants is not privileged, and might be used against them in future criminal proceedings. There is no evidence, however, that incriminating information has ever been disclosed under the SATP. Officials informed respondent that if he refused to participate in the SATP, his prison privileges would be reduced, resulting in the automatic curtailment of his visitation rights, earnings, work opportunities, ability to send money to family, canteen expenditures, access to a personal television, and other privileges. He also would be transferred to a potentially more dangerous maximum-security unit. Respondent refused to participate in the SATP on the ground that the required disclosures of his criminal history would violate his Fifth Amendment privilege against compelled self-incrimination. He brought this action for injunctive relief under 42 U. S. C. §1983. The District Court granted him summary judgment.

Affirming, the Tenth Circuit held that the compelled self-incrimination prohibited by the Fifth Amendment can be established by penalties that do not constitute deprivations of protected liberty interests under the Due Process Clause; ruled that the automatic reduction in respondent's prison privileges and housing accommodations was such a penalty because of its substantial impact on him; declared that respondent's information would be sufficiently incriminating because an admission of culpability regarding his crime of conviction would create a risk of a perjury prosecution; and concluded that, although the SATP served Kansas' important interests in rehabilitating sex offenders and promoting public safety, those interests could be served without violating the Constitution by treating inmate admissions as privileged or by granting inmates use immunity. Held: The judgment is reversed, and the case is remanded.

6-9-1999 Jackson Mi.: An inmate with a disability, required to attend sex offender therapy, was denied the interpreter necessary to permit him to attend therapy.

*** Prison Therapy: Delayed Until Just Before Release ***

Delayed admittance to therapy is one of inmates' biggest complaints. In addition, the length of therapy overlaps parole consideration, and then inmates are denied parole because therapy is not completed; this represents an abuse of process because the state knows the time frames beforehand and still fails to act timely.

Each state has its own waiting period before allowing an inmate into therapy, if that state even has a therapy program. A recent study done by the state of Colorado found that only 39 states have therapy programs... State Sex Offender Treatment Programs: a 50 State Survey (PDF File, very large 495 pages)...

Given the number of states that do have a therapy program, it follows that it is widely believed that "THERAPY" has a beneficial affect to society! i.e. offenders are put into therapy just before reentering society.

9-4-2002 Virginia: Obviously the state believes that therapy is beneficial because the inmate is moved to the facility that provides the therapy. Yet, therapy is delayed, how beneficial will therapy be 29 years after-the-fact? The crime and incarceration occurred in 1973, however, sex offender therapy is delayed until the end of the inmate's sentence 2002-2003.

No Sex Offense Conviction, But,
Prison Classifies as Sex Offender Requiring Therapy

Legal Issues & Court Cases Affectine Sex Offenders ©
News & Noteworthy: Articles Concerning Sex offender Issues ©
Beyond the Abuse: A Personal Recovery Program ©
Copyright ©2003-2005 L. Arthur M.Parrish. All rights reserved.Privacy policy
"There are a thousand hacking at the branches of evil to one striking at the root." - Henry David Thoreau -