Ruling on what has been a problematic requirement imposed by Departments of Correction throughout the country, the Minnesota Supreme Court decided Thursday that inmates cannot be threatened with additional jail time if they do not admit to their crimes during treatment. The opinion holds that it is a violation of the Fifth Amendment’s right against self-incrimination.
The court’s 5-2 decision overturned a 1999 ruling in which it found the opposite — that more prison time wasn’t enough to force an inmate to incriminate himself. The current case involved two inmates convicted of sex crimes — Frank Edward Johnson and John William Henderson.
Both refused to participate in sex offender treatment that would have required them to admit to sex offenses and discuss the incidents in detail. Johnson was appealing his conviction, while Henderson argued that he would open himself up to perjury charges if he admitted a crime he had denied during his trial and appeal.
Both men got 45 extra days in prison for not participating in the program.
Chief Justice Russell Anderson, writing for the majority, cited a 2002 opinion from then-U.S. Supreme Court Justice Sandra Day O’Connor saying that the threat of more prison time could be enough to compel a person to reveal information that could lead to incarceration.
“Extension of the inmates’ incarceration time for their refusal to admit sexual offenses in sex offender treatment did rise to the level of compulsion for purposes of their Fifth Amendment privilege against self-incrimination,” his opinion said.
It is a very interesting opinion that engages in a Marks analysis, which was being done in the blogosphere yesterday in the wake of SCOTUS’ school desegregation opinions. On the merits, the court holds:
We agree, and now hold that a convicted individual can claim the privilege against self-incrimination as long as a direct appeal of that conviction is pending, or as long as the time for direct appeal of that conviction has not expired. Because extension of incarceration constitutes compulsion, and because a direct appeal of Johnson’s conviction was pending when he refused to admit the crime of which he was convicted, we affirm the court of appeals’ holding that the Commissioner’s extension of Johnson’s incarceration by 45 days for his refusal to admit his crime in sex offender treatment violated his privilege against self-incrimination.
In order to determine whether the privilege against self-incrimination was available to Henderson, we must determine whether an admission by him could have been incriminating. Because Henderson testified at trial that he had no sexual contact with the victim, an admission to the contrary in the SOTP would have been incriminating, as it might have supported a conviction for perjury. It is well-established in federal courts that the privilege against self-incrimination can properly be invoked based on fear of a perjury prosecution arising out of conflict between statements sought to be compelled and prior sworn testimony. See, e.g., United States v. Lumpkin, 192 F.3d 280, 285-86 (2d Cir. 1999); United States v. Fortin, 685 F.2d 1297, 1298 (11th Cir. 1982). There is no reason the same principle would not be applicable here.
The opinion also contains a very thorough analysis of Fifth Amendment “self-incrimination” jurisprudence. In summary:
The Fifth Amendment does not prohibit all self-incriminating testimony; rather, it prohibits “only self-incrimination obtained by a ‘genuine compulsion of testimony.’” United States v. Washington, 431 U.S. 181, 187 (1977) (quoting Michigan v. Tucker, 417 U.S. 433, 440 (1974)). The compulsion element of the privilege against self-incrimination is present when the state attaches sufficiently adverse consequences to the choice to remain silent that a person is compelled to speak. “[W]hen a State compels testimony by threatening to inflict potent sanctions unless the constitutional privilege is surrendered, that testimony is obtained in violation of the Fifth Amendment * * * .” Lefkowitz v. Cunningham, 431 U.S. 801, 805 (1977). Penalty situations occur when “the assertion of the privilege is penalized so as to ‘foreclos[e] a free choice to remain silent, and * * * compe[l] * * * incriminating testimony.’” Murphy, 465 U.S. at 434 (quoting Garner v. United States, 424 U.S. 648, 661 (1976)). For example, threatening to revoke an individual’s probation for refusing to answer potentially incriminating questions would create a classic penalty situation. Id. at 435.
Just last week, we discussed this very issue (in the context of probation) here.