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Connecticut was fast becoming a scary place to live. As yesterday’s post shows, residents of a small section of Southbury, a suburban town in Connecticut, were becoming increasingly concerned and paranoid with the news that one of their own was about to take in her brother - a convicted sexual offender - upon his release from prison. Mr. David Pollitt is scheduled to be released tomorrow after serving the full length of his sentence and will embark on a torturous journey of five years’ probation.

Residents of that nook of Southbury, rightly concerned and wrongly outraged, embarked on a full-press lobbying of the Governor to keep this from happening. Scarily, she bit. This morning, she wrote a letter to Attorney General Blumenthal asking him if Mr. Pollitt could be confined beyond his legal discharge date.

While recognizing that Mr. Pollitt has served his sentence and that his release and probation are statutorily governed, we also have a duty to ensure that we have left no stone unturned in safeguarding the safety and welfare of the Southbury residents. Numerous children and elderly residents reside in the Fox Run Drive neighborhood. I am asking that you explore immediately the possibility of filing a motion in Superior Court seeking the delay of Mr. Pollitt’s release. This additional time will allow all interested parties to carefully review all possible safety measures that may be implemented to protect the Southbury residents.

There are several, several problems with this request that I intended to outline in full detail, but in light of recent happenings, will only mention briefly:

First, this exhibits a blatant disregard for law in the State of Connecticut and flouts the Constitutions of both the Constitution State and the United States of America. I cannot imagine that Gov. Rell is not adequately advised as to the illegality of her request.

Second, assuming that she is advised as to the illegality of her request, this can be nothing but blatant political pandering. Which is abhorrable abhorrent. You do not play with people’s liberty to further your political goal.

Third, she makes this request of Attorney General Blumenthal, who has zero standing to request changes in the conditions of probation. An appropriate request would have been one made to Chief State’s Attorney Kevin Kane, who I suspect might not have indulged her to the extent the AG did by filing this motion.

Fourth, her request indicates that the State agencies have not had time to evaluate the impact of his release into the community and make adequate preparations to safeguard the community. What, 24 years wasn’t enough to get their act together? [By all accounts, let it be noted, probation has done an excellent job of going out to the community and spending a significant amount of time attempting to assuage the fears of the residents. Paranoia, however, cannot be easily reassured.]

Finally, a half-way house or an in-patient facility is not an alternative form of probation, but an alternative form of incarceration. Mr. Pollitt has fully satisfied his period of incarceration and any such admission to a half-way house or in-patient facility would be the equivalent of keeping him in a correctional facility.

So, as you might know by now, AG Blumenthal did file a motion in New London Superior Court this afternoon, which was, by all accounts, summarily dismissed by Judge Susan Handy. She may not realize it (she probably does), but she has single-handedly saved the rule of law in the “Constitution” state.

Judge Susan Handy told Attorney General Richard Blumenthal that he has no standing to intervene in the case. Blumenthal said he was acting on behalf of Gov. M. Jodi Rell.

[She] said 54-year-old David Pollitt has served his sentence and is entitled to his freedom.

If this motion were granted (or if it is granted on appeal - if they appeal), it will mark the end of the rule of law in Connecticut. What it will signal is that the State has the power to confine individuals beyond their legal sentences for specious reasons.

Gov. Rell has just issued a statement in light of Judge Handy’s ruling:

“I am very disappointed that this reasonable and prudent request was rejected,” she said. “Public safety is our top priority — I empathize completely with the residents of the Fox Run Drive community [in Southbury], and despite this decision I want them to know that everything possible is being done to safeguard their homes and families.

Forgive me if I scoff. I’m sure every community in the State has received such assurances when sex offenders are released to them on a weekly basis.

Update: aTypical Joe nicely ties this story in with William Saletan’s piece in Slate last week about “the age of consent” and emotional development of teenagers in which he offered some concrete proposals to revamp sex laws. Read ‘em both. Saletan concludes with:

I’d draw the object line at 12, the cognitive line at 16, and the self-regulatory line at 25. I’d lock up anyone who went after a 5-year-old. I’d come down hard on a 38-year-old who married a 15-year-old. And if I ran a college, I’d discipline professors for sleeping with freshmen. When you’re 35, “she’s legal” isn’t good enough.

What I wouldn’t do is slap a mandatory sentence on a 17-year-old, even if his nominal girlfriend were 12. I know the idea of sex at that age is hard to stomach. I wish our sexual, cognitive, and emotional maturation converged in a magic moment we could call the age of consent. But they don’t.

Original: It’s because of stories like this. There are several things about this that really piss me off. First, the accused is the 18-year old boyfriend of a 15-year old girl. However, the story refers to him as a “man” and the “victim” as a girl. Second, the sex was consensual. Third, the people with whom the 18-year old boy was living make it seem like he stabbed them in the back.

Police Chief James Strillacci says he’s upset that a young man he and his wife tried to help allegedly took advantage of their generosity.

The Strillaccis had taken Keith Armstrong into their home this past summer to give him temporary shelter from a broken home, according to the chief.

Taken advantage of their generosity? By having sex with his girlfriend? Huh? He’s an 18-year old boy with a girlfriend. What did you expect?

To those of you who might remember that Connecticut recently changed its “Romeo and Juliet” law to exempt from prosecution those teens who were within three years of each other, the story is quick to point out that the boy is 3 years and fifteen days older than the girl. Clearly those fifteen days make the difference between a predator and just kids having sex.

Perhaps the prosecutor will be sensible enough to nolle the charges; otherwise this kid is looking at jail time and lifetime registration as a sex offender.

How did the cops find out? The girl’s step-father. Parenting by prosecution.

These laws are just plain stupid. I’m pretty sure this is exactly what the legislature intend to preclude from prosecution and yet here we are.

Another important criminal justice bill [text of bill - Ctrl+F and search for "DNA"] signed into law by Governor Rell is this one that eliminates the statute of limitations for certain sexual assault crimes. There are two provisions however:

1. The crime must have been reported within 5 years of its occurrence
2. DNA must identify the perpetrator.

These are two very important restrictions. It is imperative when, years later, an individual is accused of a crime that the State be certain to a high degree that the individual is indeed the one who committed the crime. Imagine the severe hurdles if the SOL for all sex crimes was eliminated. It would be impossible to defend against.

A Pennsylvania man has made an unusual request: He wants to be given the maximum sentence after pleading guilty to giving a false name to police. This is after the prosecutor dropped the failure to register charge because he didn’t have a “domicile” as he was homeless. This is what it has come to.

Lareau J. Laube, 55, told Judge Stephen G. Baratta today he wanted the maximum sentence of a year in prison for giving police a false name. Baratta said Laube was one of the most unusual defendants with whom he’d ever dealt. He asked Baratta to impose the maximum penalty because he didn’t want to be released.

The judge sentenced Laube to six to 12 months and ordered that Laube be furloughed. However, he said county probation officials are to prepare a plan to assure Laube has a place to go. He asked Laube why he had been sleeping at the library.

“I didn’t have a place,” Laube said. “I’m homeless.”

Baratta said of state prison officials: “They dumped him out. There’s no social net anywhere to catch him.”

Yep. Score one for safety.

 (click on image for full size)

In my post last night about Danbury’s desire to expel all sex offenders from its shelter, a helpful readers points to this NYT article about a homeless sex offender in Georgia who could be facing life in prison for failing to register.

The offender, Larry W. Moore Jr. of Augusta, was convicted in North Carolina in 1994 of indecent liberty with a child, a felony. This week he was convicted for the second time of violating a requirement that he register. Under the new law, a second violation carries an automatic life sentence.

“We have suggested that it is cruel and unusual punishment as it relates to the facts of this case,” said Sam B. Sibley Jr., the state public defender in Augusta, whose office represents Mr. Moore and is planning an appeal on his behalf.

This increased penalty is in conjunction with some tough residency restrictions: 1,000 feet of not only schools and day care centers but also churches, swimming pools and school bus stops.

There is only one shelter in Georgia that accepts male sex offenders. One. Sex offenders that cannot find housing have to resort to all sorts of living accommodations.

In Florida, the state authorized five offenders to live under a bridge in Miami after they were unable to find suitable housing that they could afford. In Iowa, a victims’ group found that offenders tried to comply with the registry law by offering addresses like “rest area mile marker 149” or “RV in old Kmart parking lot.”

I had a client once who was charged with failure to register. He was living under a bridge. I half-joked at the time that he should send in the registration form with “Under Charter Oak Bridge” as his address. Guess some people are actually doing it.

Then you get quotes like this:

Homelessness is not an acceptable excuse. “One of the requirements when you become a sex offender is you have to have an address,” said Sgt. Ray Hardin of the Richmond County Sheriff’s Office in Augusta.

Sergeant Hardin said enforcement of the law required a dedicated investigator, a global positioning system and, each time an offender moves, hours of paperwork. At least 15 sex offenders have been arrested because of homelessness since the law took effect in July 2006, according to documents gathered through pretrial proceedings in a lawsuit brought by the Southern Center for Human Rights and the American Civil Liberties Union.

Perhaps the police department can set up tents in their parking lots, where sex offenders can stay. This way, there’s zero cost of monitoring and these folks (some of them are human, too) have a roof over their heads.

Image license here

Anyone who has been following sex offender issues across the country knows that it is an extremely difficult task balancing the safety of the community and the human rights of sex offenders. But this is just plain ridiculous.

Danbury apparently has one of only three or four shelters throughout the state that do not have a prohibition on sex offenders living there. Danbury Mark Boughton is not happy (Boughton was most famously in the news for soliciting the help of Federal agents to crack down on illegal immigrants in Danbury)*.

“These people had nothing to do with Danbury before they were sent here,” Danbury Mayor Mark Boughton said. “Danbury is one of only five or six shelters in the state without a prohibition against sex offenders. This is outrageous.”

What’s outrageous is the fear-mongering. Sex offenders need somewhere to live, too. Or would you rather that they disappear into the wild and no one can keep tabs on them?

In a letter dated Wednesday to Chief Court Administrator William J. Lavery, Boughton wrote: “We have grave concerns of a concentration of sex offenders in our shelter, therefore, we are promulgating new rules that will only allow one or possibly two Danbury resident sex offenders present at any time.”

Concentration? There are only three sex offenders, Mayor, three. Apparently he’s okay with one or two sex offenders with prior ties to Danbury living in the Danbury shelter. I don’t see how it makes a damn difference where they come from. Does Danbury have special rules for living that these “outsiders” won’t know?

The homeless shelter on New Street has 15 beds in the summer and 20 in the winter, director Claudette Fogarty said. She said she isn’t there to judge who gets a bed at night and that people who were convicted of sex offenses stay at the shelter like other people, usually without a problem.

Fogarty said the shelter is open to people who are 18 years old or older. Families with young children do not stay there. She said sometimes the state’s probation office phones to ask if a particular person is staying there. She will answer, then alert the client about the call.

“They’re just people. This is my job,” Fogarty said. “It’s not my job to judge them.”

Fogarty said people on the state’s sex offender list have a tough time finding apartments, and the federal Department of Housing and Urban Development won’t let them have public housing.

“We’re bashing our heads against the wall on this,” Fogarty said. “These people need housing.”

Fogarty said to the best of her knowledge – and she has been working at the shelter for 20 years – there has not been a problem caused by a person on the sex offender registry. The list includes anyone convicted of a sexual crime, not just those guilty of offenses against children.

Nothing more than plain old fear-mongering. SEX OFFENDER! BOO! Are you scared yet? Go crawl into your bed and lock your doors, the big bad anonymous, not yet violent SEX OFFENDER is out to get you!

Disgusting.

While we’re on this topic, the Saucy Vixen is asking for your help, criminal defense lawyers.

All sex offender related posts can be found here and residency restriction posts can be found here.

*See previous coverage of the immigration mess here, here, here, here, here, here and here . [Please be aware, all of these links are to posts that were written when I was on typepad. They were imported but the formatting in the blockquotes is all messed up. Sorry.]

This [pdf] is a map of Tippecanoe County, IN, where “John Doe” is asking to be found not to be a sex offender anymore and also challenging the legality of residency restrictions [previous coverage here].

I know next to nothing about the geography of Indiana and even less about Tippecanoe County, but doesn’t it look like most of the inhabitable urban area of the county is covered by the restrictions?

A judge in Kentucky has ruled that residency restrictions cannot be applied to sex offenders that were convicted before the law went into effect.

Jefferson District Judge Donald Armstrong Jr. dismissed the cases of three Louisville men charged with living too close to schools and a youth treatment center, ruling that the law is unconstitutional because it adds punishment to their initial convictions.But Michael Goodwin, an attorney for one of the men, said Armstrong “has recognized that when an individual is punished by a judge and jury, the legislators can’t, many years later, adopt a second punishment for the same person.”

This was a Superior Court decision (Supreme Court for you New Yorkers), so this isn’t the end. In fact, a different Superior Court judge ruled that the restrictions were constitutional. KY’s Supreme Court will have to decide this sooner or later.

Under the old law, offenders had to live at least 1,000 feet — a fifth of a mile — from locations including a school building or licensed day-care center. The new law measures the 1,000-foot distance from the property line.The new law applies to all offenders, even if they are no longer on probation or parole, or under any type of judicial supervision.

By now I’m sure all of you have heard about the Judge that dismissed charges of sexual assault filed against Mahamu Kanneh, a Liberian immigrant who was granted asylum in the US, because the State took three years to prosecute. The sticking point was the inability to find a suitable interpreter - one who spoke the dialect “Vai”.

After three years, the judge said enough is enough and dismissed the charges. As details emerged, it became clear that interpreters had been found and used, but one couldn’t handle the facts, another had to leave for a family emergency and one was located on the day the dismissal was issued.

Not surprisingly, the blogosphere (and other places) is full of criticism for the judge. Naturally, I don’t see it that way. However severe the charges may be against him, the bottom line remains that someone was unable to locate an interpreter for three whole years.

If you do not think that the judge was right in dismissing the charges, then you are in favor of indefinite detentions while the State lethargically crawls ahead with its prosecutions.

There is a reason why all states have enacted Speedy Trial statutes (in fact, some have made it part of their Constitutions) and that is to protect against the awesome power of the state to charge and detain individuals for indefinite periods of time while they go about collecting their evidence.

Anyway, back to the story. What made me chuckle was this quote from the prosecutor:

In arguing to save the case, Assistant State’s Attorney Maura Lynch said that dismissing the indictment “after all the efforts the state has made to accommodate the defendant would be fundamentally unfair.”

It really is quite amusing that the State views fundamental Constitutional rights as “accommodating the defendant”. If I had even the slightest inkling that my client was unable to fully comprehend the scope of the legal proceedings against him, I would fight tooth and nail until I was sure that he was able to understanding what was going on.

Thoughts?

Last week, the Appellate Court overturned the trial court’s order modifying the conditions of probation in State v. Boyle [pdf]. Mr. Boyle was convicted of DUI and sentenced to 6 months, executions suspended after 30 days and 18 months probation. While on probation, his probation officer moved the trial court to modify the conditions of his probation. Via the modification, the officer wanted to add sex offender treatment and evaluation as a condition of probation.

Specifically, the probation officer assigned to the case requested that the defendant be required to review, sign and abide by all sexual offender conditions of probation to include sexual offender evaluation and any recommended treatment, polygraph examinations and Abel screens, which are specialized tests to determine a person’s sexual interest in children, as deemed necessary by the office of adult probation.

The request was based on the probation officer’s discovery that the defendant had a 1997 conviction of sexual assault in the fourth degree stemming from an incident that occurred in 1995, that the defendant was listed on the state’s sex offender registry and that a parole board evaluation conducted in 2001 rated the defendant’s recidivism-sexual offense relapse risk as high and his dangerousness-severity of risk as severe.

During the hearing on the Motion, there was no reference to any act of the defendant leading to the DUI or any subsequent act.

The probation officer testified, however, that because the use of alcohol was a factor in the defendant’s past crimes, he believed it was necessary to make the recommendation in case the defendant started drinking again.

In response to the court’s inquiry as to how the condition of sexual offender evaluation was reasonably related to the defendant’s current rehabilitation, the probation officer stated that he did not believe that it was ‘‘so much related to his rehabilitation as much as it [was] to his supervision and the safety to the community as a probation department.”

The Court granted the Motion and the defendant appealed. On appeal, the Appellate Court held that

‘‘[I]n determining whether a condition of probation [is proper] a reviewing court should evaluate the condition imposed under our Adult Probation Act in the following context:

The conditions must be reasonably related to the purposes of the [Probation] Act. Consideration of three factors is required to determine whether a reasonable relationship exists: (1) the purposes sought to be served by probation; (2) the extent to which constitutional rights enjoyed by law-abiding citizens should be accorded to probationers; and (3) the legitimate needs of law enforcement.”

The Court concluded:

Because the defendant’s sexual conduct was not a common thread in the defendant’s criminal history and was wholly unrelated to the defendant’s present conviction, however, there is no logical nexus between the added condition of probation and the underlying offense of which he was convicted.

Obviously, since this was a criminal case which was decided in favor of the defendant, there was a dissent [pdf].

After residency restrictions went into effect in Tippecanoe County, 28 sex offenders have been asked to move their homes. One of them, John Doe, is saying no. John Doe was convicted in 1988 and released from jail in 1992. Since then, he has no arrests. He has lived at his current address for 7 years. However, new legislation is forcing him to relocate.

Legislation took effect July 1, 2006, that prohibits those offenders from living within 1,000 feet of a school, public park or youth program center.

Wording of the law does not make it clear whether it applies to offenders convicted before that date.

But the Tippecanoe County prosecutor’s office is enforcing it as applying to any such offender in the Indiana Sheriff’s Sex and Violent Offender Registry.

John Doe is taking advantage of an IN law that permits sex offenders who are 10 years removed from their release to petition a court to be no longer considered a sex offender.

Here [pdf]are the motions and petitions he filed in court, which include the petition to no longer be considered a sex offender, a Motion for Preliminary Injunction and a Motion for Permanent Injunction.

The legislation is challenged on ex-post facto, takings clause and double jeopardy grounds.

photo courtesy: http://www.flickr.com/photos/mysticchildz/540087127/ , license info: http://creativecommons.org/licenses/by/3.0/

I asked this question a while ago and still don’t have a firm answer. Now, pd blogger Saucy Vixen has the same question:

I’m attempting to craft an argument that failure to register as a sex offender is an ongoing offense. The case law isn’t particularly helpful, but I figure I’ll give it a shot anyway. The only stuff I found that is even vaguely on point are cases holding that failure to register for the draft is NOT a continuing offense. This is not helpful.

My original post broke it down as follows:

When does a sex offender commit the offense of “failing to register” and is it a continuing crime for as long as the offender fails to register?

There are but two options here:

1. Either the crime is committed on the first day that the offender has to register but doesn’t;
2. He continues to commit the offense for each day that he doesn’t register until he does or is arrested.

The reason for arguing that it is a continuing offense is to prevent the client from being charged with multiple counts of failure to register.

I think the best argument to make is to liken it to other situations in criminal law where ones argues that there should not be multiple counts, such as a sequence of events constituting the same criminal transaction or enterprise. Statutory construction would also come in handy. The statute makes no mention of “each subsequent day”; rather it says that the probationer must register within x number of days and failure to comply with the statute is a felony.

Think about it this way: If the client were to register three days late, would the state charge him with 2 counts of failure to register or just one? If the answer is the latter, then what difference does it make whether he registers 3 days late of 30 days late?

I haven’t had the opportunity to search case law in other states, but I’m sure there are plenty of examples where offenders have either completely failed to register or have registered very late and yet have been charged with one count only.

Thoughts?

Following on the heels of two recent posts [here and here] dealing with sex offenders and probation terms comes this story from the Stamford Advocate about an elementary school teacher who pled guilty in 2005 to an offense that did not require admission of sexual contact with a minor.

The charge is not a sex offense. Prosecutors dropped charges of fourth-degree sex assault, or fondling, as part of the plea deal, though they insisted they could have proven the charges at trial.

The state Department of Children and Families concluded the sex abuse allegations were not credible, court records show.

Lang, who now lives in Trumbull, was sentenced to five years probation with a possible prison sentence of up to two years if he violated probation.

All well and good. However, eighteen months later, DCF changed its mind and concluded that there had been sexual contact. As a result, it contacted Lang’s probation officer, who then imposed a new condition of probation: that he had to complete sex offender treatment and take a lie detector test.

Lang refused to take the test, according to the affidavit. As a result, he was charged late last month with violating his probation and now faces at least two years in prison.

I’m not the only one who thinks this is problematic:

Leading defense lawyers said the probation officer might have overstepped in ordering Lang to be treated as a sex offender.”The probation officer here exceeded his authority under the law,” said Michael Fitzpatrick, a Bridgeport attorney and former president of the Connecticut Criminal Defense Lawyers Association. “If you start having situations where there is uncertainty about the conditions of a plea agreement, it could cause chaos in the criminal justice system.”

As my readers know, I do not like this requirement to begin with (even when it is made a part of a plea agreement). This subsequent addition is even more problematic. Basically, in order to complete probation, an offender has to admit to an offense which is not what he pled to. This is obviously not the first time and won’t be the last:

The case is the latest to raise questions about the practice of dropping sex offense charges during plea deals in such cases. Last year, a Madison man refused to admit being a sex offender during therapy sessions because he pleaded guilty only to non-sex charges.The man, Robert Pentland III, was kicked out of probation for failing to comply with treatment.

Some district attorneys in the United States ban such plea deals or use them rarely because they can create chaos during treatment.

Pentland’s attorney, Norman Pattis, said last year he would fight any move to charge Pentland with violating probation or to force him to register as a sex offender.

I eagerly await the outcome of Mr. Lang’s violation of probation case.

My apologies for copying the title of the news story. Try as I could, I was unable to come up with something better.

Glenarlow Wilson [previous coverage here and here] has rejected a plea offer from the State.

The Douglas County man imprisoned for having oral sex with a 15-year-old girl when he was 17, has turned down a plea deal a prosecutor offered in writing this week, his attorney said Friday.

B.J. Bernstein said Genarlow Wilson won’t accept the deal offered by Douglas County District Attorney David McDade because it would require him to plead guilty to a felony with a 15-year sentence and serve five years in prison.

Bernstein pointed out that a Monroe County judge granted her appeal this month, changed Wilson’s conviction to a misdemeanor and ordered him freed from prison. Attorney General Thurbert Baker, however, is appealing that judge’s ruling to the Georgia Supreme Court.

Bernstein is also concerned that Wilson would be forced to register as a sex offender under the deal, despite McDade’s contention that he could plead to an offense that does not normally require registration.

The plea deal itself is a little ambiguous or mysterious, if you prefer:

McDade spelled out his plea deal in a letter to Bernstein’s co-counsel, Rodney Zell, Monday. In the letter, McDade offers to let Wilson plead to a felony “that reflects his criminal actions with the victim in this case.”

McDade, however, does not identify possible charges. But he says Wilson could plead guilty to an offense that does not normally require sex offender registration, which has been one of the main sticking points in the case.

A series of court decisions and legislative actions, however, make it unclear whether Wilson can avoid registering as a sex offender regardless of the plea deal, said Mark Jackson, director of legal services for the Georgia Bureau of Investigation.

McDade said his offer would also let Wilson get credit for the time he has already served in prison and that he would not oppose parole for him.

HT: Audacity

Technorati Tags: glenarlow wilson

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.

HT: SOI