McKune v. Lile - Oral Argument

ORAL ARGUMENT OF STEPHEN R. McALLISTER ON BEHALF OF THE PETITIONERS

Chief Justice Rehnquist: We'll hear argument next in Number 00-1187, David R. McKune v. Robert G. Lile.

Mr. McAllister.

Mr. McAllister: Mr. Chief Justice, and may it please the Court:

Choices have consequences, but they nonetheless remain choices.

The mere withdrawal of prison privileges such as a personal television or how much an inmate may spend at the canteen, privileges which are not part of an inmate's sentence and to which an inmate has no legal entitlement, does not amount to constitutional compulsion in violation of the Fifth Amendment, certainly not when the reason for the withdrawal of those privileges is the inmate's failure to comply with an unquestionably legitimate treatment requirement that he accept responsibility for his offenses.

Unidentified Justice: The problem, though, is he's forced, in effect, to confront the treatment possibility.

It's not an option.

I mean, the tough part of the case for me, I think, is the fact that this is not a scheme, as I understand the Federal scheme, in which the inmate says, I want to take advantage of this treatment program.

This is a scheme in which the State says, you're going to take advantage of it, and if you don't take advantage of it, including the admissions in the reports of other offenses, and so on, you're going to lose substantial privileges.

That, to me, is the tough part of the case.

Mr. McAllister: That's true, Justice Souter, and our program does differ from the Federal program in that respect, but it is still a choice for Mr. Lile.

He does not have to incriminate himself in any way.

His refusal to participate is not at all incriminating, and what we're talking about in terms of what he may lose here are really relatively mild incentives within the prison--

Unidentified Justice: I thought that the participation required the prisoner to describe previous offenses that he may have been--

Mr. McAllister: --If he participates.

Unidentified Justice: --committed.

Mr. McAllister: If he participates.

Unidentified Justice: That he may have committed if he participates.

Mr. McAllister: Right, but what I'm saying is, if he simply refuses to participate, there's no incrimination whatsoever, nothing drawn from that.

He simply--

Unidentified Justice: But what happens if he refuses?

Is he put in a different type of confinement with different terms and conditions?

Mr. McAllister: --He can be, yes, and he will certainly, with our privilege incentive level system, as the inmates work their way through they have more privileges, and they're in the nature of how much they can spend at the canteen--

Unidentified Justice: Well, everybody goes in presumably at the same level.

Mr. McAllister: --They start at intake.

Unidentified Justice: You're screened, and you start at the same level of control.

Mr. McAllister: Yes.

Unidentified Justice: Now, the prisoner says no, I don't want to participate in that program.

Does that mean that he stays in that opening level, or is he then potentially put in something even more severe than that?

Mr. McAllister: The Kansas regulations say, if an inmate is recommended for this treatment program and he refuses, he goes from level 3 to level 1.

Mr. Lile is at level 3 because when we adopted this incentive scheme several years ago we grandfathered in all the inmates at the highest level, so we started them out with the level 3 privileges, which is the highest they can achieve in prison, and it was then theirs to lose by not complying with rules and committing disciplinary infractions, and so forth, so he was at level 3, and when he refused to participate he then comes down to level 1.

Unidentified Justice: Is that where he is today?

Mr. McAllister: Well, he's actually not, because he got an injunction against... in this case against actually carrying out this program.

Unidentified Justice: In the future--

--So is he still incarcerated?

Mr. McAllister: Yes, he is.

Unidentified Justice: And he's at level 3?

Mr. McAllister: Level 3, yes.

Unidentified Justice: In the future, what's at issue is not being deprived a benefit you already have, but of not giving you benefits that you don't have?

Mr. McAllister: Well, I--

Unidentified Justice: I mean, the reason he's being chopped down from 3 to 1 was that he was grandfathered.

Mr. McAllister: --He was grandfathered in.

Unidentified Justice: But in the future, he would simply not make it from 1 to 2 and from 2 to 3, if he didn't go into the program?

Mr. McAllister: Very possibly.

I mean, very possibly.

Unidentified Justice: Because there's been some dispute between you and the other side as to whether this is simply the denial of a benefit or a punishment, and I'm not sure there's a whole lot of difference, but--

Mr. McAllister: And in the context of the prison--

Unidentified Justice: --for the grandfathered people it looks more like a punishment, chopping him down to 1, but in the future, at least, he just doesn't get promoted from 1 to 2 to 3.

Mr. McAllister: --That's certainly a possibility, and one thing about--

Unidentified Justice: You say it's a possibility.

I mean, I suppose it's always a possibility, but does the scheme for those who are not grandfathered provide that they will never yet be on the intake level if they are a sex offender and so on, unless they agree to this?

Mr. McAllister: --No.

They will progress, unless they have other reasons that they're not, because what happens with this program, it's an 18-month program.

Our inmates are not even evaluated, typically, for release until they're 2 years from their scheduled release date, so anybody with a sentence of any length will go several years in the system, working their way up if they're complying with what they're supposed to do.

Unidentified Justice: Well then, the only person that's going to be in the position that Justice Scalia described is the person who's been getting in trouble along the way and never does progress.

The person, I take it, like this petitioner here is going to be in the same position as this petitioner.

Mr. McAllister: Yes, potentially, but in our view it doesn't matter in the prison, should not matter in the prison context whether you view it as taking away a benefit or not bestowing a benefit, because none of these inmates come in with an expectation to any of these privileges.

Unidentified Justice: Could the... Kansas do that... this with respect to a prisoner who's writing letters to the editor, to the newspaper, complaining about prison conditions?

They say, well, this... all this is privileged.

We don't have to give you anything.

You have no--

Mr. McAllister: I think that's a different case, and that probably takes the Court quickly to Turner, where the Court has addressed the--

Unidentified Justice: --But why is the First Amendment different from the Self-Incrimination Clause?

I mean, if in the one case you can't disadvantage the person for exercising that constitutional right, why in the other case can you?

I mean--

Mr. McAllister: --Two--

Unidentified Justice: --you have the First Amendment--

Mr. McAllister: --Two things, Justice Ginsburg.

One, we don't think we are disadvantaging here in terms of actually compelling him.

Unidentified Justice: --But then you should say the same thing about the First Amendment.

You're not taking away anything you're entitled to.

You've no liberty interest, property interest, all that.

If that follows, then what's wrong with saying--

Mr. McAllister: But in the First Amendment context he has a right, a free speech right or a right of access to the courts that may be at issue.

In this context, all the Fifth Amendment says is, no person shall be compelled, so--

Unidentified Justice: --As I recall it, the First Amendment says... speaks of abridgement--

Mr. McAllister: --Yes.

Unidentified Justice: --right, and Fifth Amendment speaks of compulsion.

Mr. McAllister: Compulsion, that's the language in the amendment.

Unidentified Justice: I'm concerned about the same thing Justice Ginsburg is concerned... I have to say I can't find in our cases a statement that a burden on your... or an unconstitutional condition which involves the Fifth Amendment is barred, but I'm wondering if it oughtn't to be.

Is it your... it seems to me to follow from your position that every prisoner in Kansas could be told, either you confess to the crime for which you've been convicted and all other crimes you've committed or you go to maximum security for the rest of your time here.

Mr. McAllister: Not necessarily, Justice Kennedy.

Unidentified Justice: Because I think the State does have an interest in saying, we want to rehabilitate you, and it's best for you to confront your wrong.

Would you say the statute, or the rule I've proposed is problematic?

Is it different from what you're proposing?

Mr. McAllister: I think it's potentially different, although it is potentially permissible constitutionally, but the question would become, what sort of legitimate valid penological interest do we have?

Do we have such an interest in having every inmate do that from the day they enter prison?

This is very different.

Unidentified Justice: I think you can make a better argument.

Mr. McAllister: We could make that argument.

Unidentified Justice: It's better for people to confront the consequences of what they've done.

Mr. McAllister: We could make that argument, and in this case it's critical, actually--

Unidentified Justice: I'd be very troubled by that.

Mr. McAllister: --Well, it's much more than that in this case, because here the therapists are clear that denial is a big problem with sex offenders, and to overcome that denial we need a meaningful acceptance of responsibility, not an immunity that simply allows the inmate to talk with no consequence whatsoever, potentially.

We need a meaningful acceptance, and that's what we're after here, and Mr. Lile has not questioned that's a legitimate--

Unidentified Justice: Well, you think it can only be meaningful if you compel them to admit to a new crime for which they could be prosecuted?

Mr. McAllister: --Except with all due respect, Justice O'Connor, we would not say we're compelling them.

We're simply giving them a choice that has some real consequences.

We want people in this program who really want to participate.

We have a waiting list to get into this program, so we don't need inmates in this program who are not serious about this.

We have plenty who are willing to take advantage of the program as it's done, right now, and it's full, and there's a waiting list.

Unidentified Justice: Then why isn't your penalogical interest satisfied in confining the program to those who want to be in it, who will not be subject to this compulsion, if that's what it is?

I mean, your argument is that we have a penalogical interest, in effect, that justifies these consequences.

Mr. McAllister: Yes, we do.

Unidentified Justice: But if you could fill your program without even having to raise the issue that involves these consequences, why do you have a penalogical interest in the insistence that gives rise to this case?

Mr. McAllister: Because these fellows have proven that most... or, not most, but many of them will not voluntarily engage in this program, even though they need--

Unidentified Justice: I'm assuming that is so, but if you can fill the program with people who will, why is there an interest in effect in forcing the issue for those who do not want to do it voluntarily?

Mr. McAllister: --Because we still have an interest in rehabilitating all of these sex offenders.

Just because some of them are more willing to be rehabilitated doesn't mean the State does not have an interest--

Unidentified Justice: Well, if the program is full, then is your interest in simply getting statements of guilt or something from people who will never go into the program?

Mr. McAllister: --No, and that's why he has the choice.

He can simply refuse.

He could refuse, and there's no incrimination if he refuses to participate, but what he's doing is taking up a bed in the medium part of the facility, which is overcrowded at this point, in essence double-celled everyone, and the medium unit is a working unit.

The medium unit is for people who are actively involved in prison programs, and so we just don't have the space.

If you're not going to work at your programs, we'll move you.

That's what we're trying to do with Mr. Lile.

Unidentified Justice: But it's not a voluntary program, it's a conscription system.

What you... first, I'd like you to go back to the rehabilitation thing, because that is an aim, an aspiration for every prisoner, and you made very strongly the point that the first step in rehabilitation is acceptance of responsibility.

If that's so, I don't see why you... this... you could not do this with every prisoner who enters.

You could say, take responsibility by confessing that you did what you were accused of doing, no matter what your defense was.

Two, tell us about all your other nefarious deeds.

You apply this to sex offenders, but the reasons that you did seem to me to be across the board.

Is there any distinction, any constitutional distinction that you would make, or are you saying yes, we could do this in the case of every prisoner?

Mr. McAllister: If there's... as long as there's a deter... a legitimate penalogical interest, yes, potentially we could.

We don't.

We're only focused on the sex offenders here, but if there's a legitimate reason to do it, potentially--

Unidentified Justice: Well, let's take out the if, because is there or isn't there?

Is it... in the case of everyone that you incarcerate there is an interest in rehabilitating that person.

Mr. McAllister: --Absolutely.

Unidentified Justice: And you have said that the first step in rehabilitation is acceptance of responsibility for the wrong that you've done.

Mr. McAllister: Yes.

Unidentified Justice: But you also rely, don't you, Mr. McAllister, on the fact that the therapists for this particular type of crime have come down very hard on the idea, and I take it perhaps there may not be the same body of support for that sort of treatment for other offenders.

Mr. McAllister: And there's certainly not, for example, treatment programs necessarily for burglars or robbers or other categories.

The sex offender program is somewhat special in that respect.

Unidentified Justice: But constitutionally, if suddenly somebody got a good idea here and a psychiatrist came forward saying yes, you can reform property criminals too, we'd be in exactly the same boat.

Mr. McAllister: Yes, potentially, and that's not, in our view, a constitutional problem, because this Court has long said none of the things we're talking about here are atypical in prison.

The inmates have no particular expectation of a particular set of living conditions within prison.

Meachum v. Fano is very clear.

They could be transferred from one prison to another for whatever reason or no reason at all, without violating the Constitution.

This is a very mild incentive program to try to get these fellows to meaningfully participate in the program.

Unidentified Justice: The kind of conundrum that puzzles me that I don't have an answer to is illustrated by the trial process itself.

I suppose the Government couldn't possibly say, if you insist on your right to a jury trial, and insist on your right to remain silent, we're going to sentence you to 10 more years in jail.

But the Government can say, if you confess, and don't go to trial, and show true contrition, we'll give you 10 years less.

That's written into the guidelines.

But they seem to come to the same thing.

Well, that seems to be true of this case, and if I could understand how to analyze the first, I might be able to understand how to analyze the second.

Mr. McAllister: Well, Justice Breyer, to say the first is different, or in essence we're different, because all of our... this takes place inside the prison.

The expectations are quite different.

That's why we discuss Sandin in the briefs, not because it is necessarily transportable to the Fifth Amendment, but what Sandin recognizes is prisons are very different, and what the expectations are, what the hardships are is just a very different situation than free citizens, and what they may be confronted within the way of choices.

Unidentified Justice: You are saying you can have two classes of prisoners, those who have confessed to their crimes and those who haven't, and you can treat them differently, no TV, no meat at lunch, no recreation, no softball, and it seems to me the necessary consequence of that for a prisoner facing a long term is that it's going to induce confessions from innocent people.

Mr. McAllister: Except, Justice Kennedy... it may do that, but our program, just like the Federal program, has pretty strict confidentiality limits.

Basically there's a patient-therapist privilege that operates here, and the only reason... they're given a form right up front that says the only reasons the therapist will disclose anything that's disclosed to the therapist, very limited, things that deal with safety within the prison, threats to other inmates--

Unidentified Justice: Mr.--

--I thought you conceded... you conceded that a prosecutor, say, in the sexual history... he says, I committed X, Y, Z rapes... that a prosecutor, as long as there's no statute of limitations problem, in Kansas... unlike, as I understand the Federal program is, a prosecutor could say, okay, now we're going to indict you for that.

Mr. McAllister: --My understanding is they could do that in the Federal program as well, because there's no immunity granted under the Federal program either, so if they actually made a statement, the Federal program could prosecute them just like we could.

We have not, in 13 years of this program.

Unidentified Justice: Yes, but under the Federal program they don't suffer any loss of anything if they don't make the statement and under yours, they do.

Mr. McAllister: That's true, but--

Unidentified Justice: But under yours, in any case, whether the Feds do it or not, under yours the prosecutor could use that information, couldn't he?

Mr. McAllister: --Could.

We never have, but could, yes, theoretically could.

Unidentified Justice: May I ask you, Mr. McAllister, do you know... there's similar programs in a lot of States, as I understand it.

Do any of them give the inmate immunity if he participates in the program?

Mr. McAllister: Justice Stevens, it's my understanding that some may, although I don't know the exact number, and I do know from the State amicus brief the 18 States that signed onto that obviously think immunity is a bad idea and, as I said, the Federal Government does not immunize the inmates who participate in the Federal program.

Unidentified Justice: I understand the Federal Government does not, yes.

Mr. McAllister: Yes.

Unidentified Justice: Of those, how many are like Kansas?

That is, it isn't a voluntary thing?

Mr. McAllister: Justice Ginsburg, I don't know the answer to that.

I don't know exactly what their programs are like.

Ours was the first of its kind in some sense when we implemented this program, so some may have followed our model, but I don't know for sure.

With the Court's permission, I'd like to remain... reserve the remainder of my time.

Unidentified Justice: Very well, Mr. McAllister.

Mr. Garre, we'll hear from you.

Mr. Garre, why does the Federal Government not think it a good idea to grant immunity?

ORAL ARGUMENT OF GREGORY G. GARRE ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONERS

Mr. Garre: Justice Scalia, the Federal Government has a very limited program that applies in only one facility Nation-wide, and it has made a determination to allow for voluntary participation among convicted sexual offenders in that program.

Now, in our view that is a judgment that this Court's decisions clearly enable the Federal Bureau of Prisons to make, and we think that the Kansas prison officials have acted within their judgment to adopt a different kind of program.

As the therapists all acknowledge, denial is one of the biggest obstacles to receiving treatment in these kinds of programs, and I think it's important for the Court to recognize--

Unidentified Justice: Are you going to get around the answering my question?

Why did the Federal Government think it not a good idea to grant immunity in its program?

Mr. Garre: --Oh, the Federal Government reserves the right of the same confidentiality limits that the State does, that is, to deal with offenses that threatens institutional security, to deal with suspected cases of child abuse, to deal with suspected cases of harm to individuals within the prison or outside of the prisons.

Those confidentiality limits are clearly related to legitimate penalogical interests, and we think that the Federal Government--

Unidentified Justice: Only those things can be prosecuted?

I thought that it... that prosecution was available for anything that was disclosed, although there was confidentiality.

Mr. Garre: --That's right.

The confidentiality limits work in conjunction--

Unidentified Justice: Those are confidentiality limits, not immunity limits, right?

Mr. Garre: --That's right.

Unidentified Justice: So the Federal Government has not given use immunity for anybody in the program.

Mr. Garre: And that's absolutely clear from the waiver of the confidentiality statement that inmates sign before they enrol in the program, and we think that particularly where you're dealing with a program that does clearly promote legitimate penalogical interests in rehabilitating a class of offenders that poses a unique risk of recidivism upon their release, that States, the mere fact that the State doesn't grant immunity to inmates who participate does not provide an answer to the constitutional problem.

Unidentified Justice: The Feds--

--Well, does the Federal Government deprive the prisoner of any benefits or programs if he refuses to engage in the program?

Mr. Garre: The Federal Government doesn't apply the same incentive schemes that the State of Kansas does for participation.

Unidentified Justice: Are there any?

What are the incentives in the Federal program?

Mr. Garre: The incentives... the overriding incentive is, of course, the value of the treatment that the inmate receives.

Now, once a--

Unidentified Justice: But not... nothing is threatened or carried out in the Federal program to deprive the nonconsenting prisoner of any privilege, is that right?

Mr. Garre: --Well, that's true up front in terms of the incentive scheme.

Now, once an inmate is in the program, and if he chooses not to comply with the acceptance of responsibility goals, the inmate can be transferred back to his parent facility and that can be something on its record, but certainly up front--

Unidentified Justice: The choice to go into the program is strictly the inmates.

There's no coercion or inducement.

He loses nothing if he chooses not to go in, is that correct?

Mr. Garre: --That's the way the Federal Bureau of Prisons--

Unidentified Justice: Is it a more desirable facility?

Mr. Garre: --It is at a more desirable facility.

Unidentified Justice: So what he loses is, he doesn't... he isn't... he doesn't get out of the rotten place he's in to a better facility, right?

Mr. Garre: I think that's right, and I think it's important--

Unidentified Justice: But he doesn't lose a benefit that he currently has?

Mr. Garre: --Well, we don't... we think that the privileges that we're talking about in the case of Kansas, TV ownership, personal TV in the cell, visitation privileges beyond immediate family, and lawyers, canteen expenditures, these aren't the sorts of things--

Unidentified Justice: The right to work, the right to take other programs in the prison?

Mr. Garre: --The privileges are reduced.

I think that the chart that's on page 27 of the joint appendix explains how they're reduced.

Unidentified Justice: Substantial reduction in how much you can earn in prison, what jobs you can do in prison, isn't that so?

Mr. Garre: There is a definite reduction, and the flip side of that is Kansas reserves the higher privileges, the more modern facilities to those inmates who choose to take the constructive steps towards reentering society.

Unidentified Justice: Okay, but there's no--

--Mr. Garre--

--There's no reduction in the Federal system, is that correct?

Mr. Garre: There's no... the Federal system currently doesn't employ the same earnable privilege scheme that the Kansas prison does.

Unidentified Justice: We're trying to be specific about it.

As I think we think we understand it, the inmate cannot lose privileges that the inmate currently enjoys simply by exercising the option not to enter the program.

Are we correct?

Mr. Garre: That's correct, except that the inmate can be sent back to his parent facility.

Unidentified Justice: Yes, but you have said... you said in your opening statement, and you seem to be backing away from it, you said the Federal program is a voluntary program.

Mr. Garre: As is--

Unidentified Justice: It's not a voluntary program, at least not for the people like--

Mr. Garre: --Well--

Unidentified Justice: --That's sort of the issue here, isn't it?

Mr. Garre: --With respect, we think that that is the issue.

I mean, we're not talking about losing someone's job, or means of livelihood, the consequence faced by free individuals in the penalty cases that respondents relied upon.

We're talking about loss of institutional privileges that inmates have no expectation of enjoying once they enter the prison.

We think that the prison context is key to evaluating the Fifth Amendment claim in this case.

Unidentified Justice: Let me ask you this, Mr. Garre.

Maybe you can give me some help with the larger question that's bothering me and I think underlies Justice Ginsburg's first question.

The rule of unconstitutional conditions doesn't seem to apply in our cases, or hasn't been applied in the Fifth Amendment context.

Why is that?

Mr. Garre: Well, foremost because the Fifth Amendment says, compelled self-incrimination.

The amendment therefore recognizes that there are some sorts of pressures or conditions short of compulsion which would not meet the Fifth Amendment standard, and this Court's cases--

Unidentified Justice: Anything short of compulsion does not meet it?

That is to say, you can have two classes of inmates, those who've confessed and those who haven't, for all of prison life?

Mr. Garre: --Well--

Unidentified Justice: And isn't there a danger, then, of inducing innocent people to confess?

Mr. Garre: --I think that type of hypothetical is much different, much further afield than the program in this case.

Unidentified Justice: Well, the Fifth Amendment doesn't say inducing, does it, it says compelling.

Mr. Garre: It says compelling, that's exactly right, and that's supported by the text and history and purpose of the amendment.

Unidentified Justice: Mr. Garre, don't we in fact have two classes in all prison systems, those who have pleaded guilty and have gotten a relatively short sentence by reason of their guilty plea for a particular crime, and those who have refused to plead guilty and have gotten a longer sentence because of their refusal to do so, for the same crime?

Mr. Garre: That's--

Unidentified Justice: You have two classes in prison.

Mr. Garre: --That's absolutely--

Unidentified Justice: I mean, not just not being able to spend as much at the PX, but they're there for another 15 years.

Mr. Garre: --That's correct, and I think it's important for the Court to recognize that these sorts of earnable daily privileges like TV ownership, canteen expenditures, and housing in preferred facilities are among the most common tools the prison administrators use to manage order in the prison environment and to encourage inmates to take socially constructive steps.

This Court's cases like Sandin and Meachum and Bell v. Wolfish recognize that once someone is lawfully incarcerated, that brings about a necessary withdrawal of many rights and privileges consistent with the needs of day-to-day management.

Unidentified Justice: So is compulsion anything other than physical, or psychological?

Mr. Garre: Oh, sure.

Sure.

Unidentified Justice: So what would be... I mean, in... outside prison we know, at least this Court's precedent has said losing your membership in the bar, losing your job, that counts as compulsion, even though no one is putting you on the rack and screw.

Mr. Garre: And we think... we agree with Judge Friendly and others who have suggested that those cases lie at the outer reaches of this Court's Fifth Amendment jurisprudence, and we think that the denial of the sorts of common, routine privileges at issue in this case, TV privileges, canteen expenditures, don't even come close.

Unidentified Justice: How about loss of visiting privileges?

That could be crucial to a prisoner.

Mr. Garre: Well, it's not a complete loss of this case.

Again, the chart on page 27 of the joint appendix in the case that--

Unidentified Justice: Suppose it were.

I mean, there are some of these things that must mean all the difference in the world to someone who's incarcerated.

Mr. Garre: --Well, I mean, the further the Court goes out in that direction, then obviously at some point that program would be more difficult to defend under the Turner v.--

Unidentified Justice: That's the Kansas program--

Mr. Garre: --analysis.

Unidentified Justice: --They want to offer no limit on what they can do here.

They can prosecute for a new crime that might be disclosed, and they can deprive the prisoner of all visiting privileges and all kinds of things.

Mr. Garre: Well, with respect, we don't think that that's the Kansas program.

The Kansas program offers incentives by withholding privileges from those inmates who choose not to take socially constructive steps.

It's important to recognize that no one disputes that the rehabilitation program in this case is designed to serve legitimate penalogical interests.

There's widespread agreement the sexual offender treatment programs benefits inmates and society alike by enabling convicted offenders--

Unidentified Justice: But it just sounds like a basic difference.

As I understand your description in the one Federal program, it sounds like if the prisoner says no, I won't participate, the prisoner goes back to the facility of origin and can still, over time, earn various privileges, and Kansas is telling us in their scheme no, they reserve the right to deprive the prisoner of any privilege thereafter during his term in prison, and to put him in a more severe condition of incarceration.

Mr. Garre: --Well, again, I would disagree with the characterization of the Kansas program, but more importantly we think that the judgment made by the Federal Bureau of Prison and the judgment made by the Kansas prison officials are well within the range of decisions that this Court's prison decision--

Unidentified Justice: Even if I'm correct in my description?

Mr. Garre: --Your description presents a different situation.

Unidentified Justice: Thank you, Mr. Garre.

Mr. Wiltanger, we'll hear from... is it Wiltanger, or Wiltanger.

It's Wiltanger, Your Honor--

--Wiltanger.

Mr. Wiltanger, we'll hear from you.

ORAL ARGUMENT OF MATTHEW J. WILTANGER ON BEHALF OF THE RESPONDENT

Mr. Wiltanger: Mr. Chief Justice, and may it please the Court:

If you're a prisoner in Kansas and you commit a rape while in prison, you get the same penalties that Mr. Lile gets.

If you're a prisoner in Kansas and you commit arson in your cell or somewhere in the prison, you get the same penalties that Mr. Lile gets.

If you commit a theft, you get the same penalties.

Unidentified Justice: You mean, someone who commits arson in prison gets only those penalties?

He isn't prosecuted for committing arson?

Mr. Wiltanger: There could be a potential prosection if they turn him over--

Unidentified Justice: That might--

--Like a number more years in jail.

Mr. Wiltanger: --That could be, Your Honor.

Unidentified Justice: That's quite different.

Mr. Wiltanger: But under the State system they get moved down to the same level that Mr. Lile is, and in fact their punishment could be worse, because--

Unidentified Justice: And I expect the arsonist considers that he least of his worries.

When you say punishment, you assume your answer in your favor.

What I'd like to know is, the way they characterize it, basically, is that you come in without anything.

Indeed, your client went... he started off in a maximum security part of the prison with a medium security bed, or at least he could have done, and then what happens is, people who participate in treatment programs get bonuses, privileges, and if you don't participate in the treatment program, well, obviously you don't get the privilege.

Now, that's their characterization of it, basically.

Yours is, well, if you start treatment and you stop, you get punished.

Now, you're both describing the same thing, but it sounds as if it has very different consequences, and how are we supposed to say which is the correct description, the appropriate characterization?

Mr. Wiltanger: --I think the difference, Your Honor, is somewhat illustrated by the Government's attorney in that this is not voluntary, and that once you achieve a level... the State has set up a structure, Your Honor, under which if you're good, you do your job, you get to a certain level, and that's for everybody.

They have rules on this, and Mr. Lile did that.

He got to that level.

He had achieved something.

And what the State does is, it comes along and says, well, if you don't give up your Fifth Amendment rights, and if you don't tell us about all these other uncharged crimes, we're taking that away from you.

You'll no longer have it.

You'll lose your job.

Unidentified Justice: Is that true, or is it true that their system is, you will be awarded privileges as long as you participate in treatment, but our privileges are open only to people who participate in treatment?

Mr. Wiltanger: I would disagree with that, Your Honor.

Unidentified Justice: All right, because?

Mr. Wiltanger: Because people in the prison system who do not participate in treatment get the same privileges.

They get to get to that level, not just--

Unidentified Justice: Why did he lose his?

Mr. Wiltanger: --Why did he lose his privileges?

Well, he hasn't, technically, Your Honor, lost his privileges--

Unidentified Justice: No, no--

--What about non sex offenders--

Mr. Wiltanger: --Non sex offenders--

Unidentified Justice: --who have no ability to go into the program?

Mr. Wiltanger: --Have no ability, but other--

Unidentified Justice: That's a different category of prisoner.

Mr. Wiltanger: --But there could be other sex offenders in the prison who are not required to take SATP, for example, if there was a... if for some reason there was a statutory rape penalty they may not be required to take SATP, but yes, all prisoners in the system, sex offenders, murderers, arsonists, get a chance to get--

Unidentified Justice: What case from our Court, or what cases do you think most strongly support your position?

Mr. Wiltanger: --Your Honor, I think the cases of Garrity, Gardner, Cunningham support--

Unidentified Justice: We're talking about loss of job in a civilian society.

Do you think the denials here are of that consequence?

Mr. Wiltanger: --I do, Your Honor.

Unidentified Justice: Why?

Mr. Wiltanger: Specifically as to the job, Mr. Lile, if... any inmate in the prison system in Kansas, if they were, for example, in minimum security can work an outside job.

They obviously can't leave, but they could go pick up trash along the road and they could make whatever the employer is going to pay them.

Say... assume it's $7 an hour.

Maybe it's not that much.

They can keep that money.

If they don't keep all of it, they pay some to the prison, they pay some to victims' restitution, but if they lose their job, under the Kansas structure they will never get to work a job that is even equivalent to that.

Unidentified Justice: You're talking about a situation where in civilian life the person who loses his job loses his livelihood, basically.

Certainly that's not true in a prison.

This man is going to eat whether he does it or not.

Mr. Wiltanger: He will eat, Your Honor, but at the same time a policeman on guard or a policeman on duty could go out and get another job and earn something, an equivalent wage, or possibly even a better wage.

Mr. Lile can't.

Unidentified Justice: Mr. McAllister, I am very, very--

--Mr. Wiltanger.

Oh, I'm sorry, Mr. Wiltanger... I am very reluctant to extend our expansive notion of what constitutes compulsion to the area of criminal law and penology for this simple reason.

Why does the situation of your client differ from the situation of the person who's been arrested for first degree order, and the case is put to him by the prosecutor, you know, I'll go ahead with this prosecution for first degree murder.

You will be in prison for life.

On the other hand, if you confess that you are guilty of voluntary manslaughter, you'll get a 15-year term.

Now, has that person been compelled to plead guilty to voluntary manslaughter?

Mr. Wiltanger: No, they haven't, Your Honor.

Unidentified Justice: But that's... you know, either you do it, or you're going to get life.

Mr. Wiltanger: I don't... Your Honor, our view is not... is that that is not compulsion, because what is being extended to the murder suspect is a benefit, some way to improve your lot.

In this situation, for example, if the State wanted to... what they're doing... it's not Mr. Lile's case, because he was convicted before 1995, but if you're convicted after 1995 you can be stripped of your good-time credit.

They take it away from you.

If, on the other hand, the State decided that what we're going to do for those inmates who are participating in the program is extend their good-time credit or make their situation better, or give them a benefit, I don't think that's... I don't think that would be--

Unidentified Justice: It's almost a play on words, then.

Well, yes, just start them off in the worst situation and just say, you know--

--That certainly doesn't benefit prisoners as a class.

The Constitution surely can't turn on that, whether you characterize it as giving them a benefit or depriving them of a benefit they--

Mr. Wiltanger: --Well, the Constitution obviously prohibits any kind of sanction for the invocation of your Fifth Amendment rights.

Unidentified Justice: --Mr. Wiltanger, you said it in your brief, and I wanted to make sure that it really is your position.

You said, here is a man with a certain set of privileges.

They take that away, and that's compulsion, but if you started everyone... you didn't say everyone, you said every sex offender goes in at level 1, the lowest level, and never gets out of that unless he signs up for this program with all its terms and conditions.

That person you say is not being compelled because for him it's not achieving privileges rather than having privileges taken away.

Is that... do you adhere to that distinction, that the State of Kansas could do exactly what it's doing now if it said, Mr. Wiltanger and all sexual offenders, you go in at level 1 and you never get out of it unless you take this program?

Mr. Wiltanger: Your Honor, I do think that's certainly closer to the... that would be closer to a constitutional law.

That wouldn't be unconstitutional.

Unidentified Justice: Would be, or wouldn't?

Mr. Wiltanger: It would not be, Your Honor.

Unidentified Justice: It would not be.

Mr. Wiltanger: It would not be unconstitutional.

Unidentified Justice: That's what you said in your brief.

Mr. Wiltanger: It would not be unconstitutional.

That is our position.

Unidentified Justice: So the whole thing, then, it comes down to, subtraction is no good.

That doesn't work, but addition is okay.

I mean, you could give the person nothing in the beginning, and then the carrot is okay.

But you can't once... so this really says to Kansas, what you're doing, the whole program is fine.

The only thing is, you take this category of offender and you don't give them anything until they take this program.

Mr. Wiltanger: If they could set up a system or a structure or fashion some rules... obviously, they don't have that now... I don't think that would be unconstitutional.

Again, I do think there is... if the Court doesn't want to draw a hypertechnical distinction, that's fine, but the Court... the Fifth Amendment doesn't prohibit benefiting somebody or making their life better.

Unidentified Justice: So you think the Sentencing Guidelines would be invalid if, instead of the current provision, which gives you good points for acceptance of responsibility, it rather gave you bad points for refusing to accept responsibility.

Mr. Wiltanger: I do, Your Honor.

I do.

Unidentified Justice: If that's so--

--It's a constitutional distinction.

Mr. Wiltanger: I do believe so, Your Honor.

Unidentified Justice: If that's so, does this case... my understanding of it is that the prison created a new policy, and that policy was that everybody was at level 1 unless you participate in a recommended program, that that was their new policy, but that your client was grandfathered in at level 3 because he was in prison at the time, and so this case in your opinion turns on the fact that we're dealing with one of the few prisoners who was grandfathered in, and therefore it's a taking away rather than being a new prisoner who would have started at level 1, in which case it would have been added on.

Mr. Wiltanger: Not exactly, Your Honor.

Unidentified Justice: Because?

Mr. Wiltanger: Because all inmates... there were not just inmates at level 3 who were grandfathered in.

Every single inmate who enters the prison system can get to level 3, and as opposing counsel--

Unidentified Justice: Even without participating in a recommended program?

Mr. Wiltanger: --Absolutely.

Absolutely.

Unidentified Justice: But then they changed the rule and said, if you don't participate in the recommended program, you can't get to level 3.

Is that right?

Mr. Wiltanger: If... they have not changed the rule.

That is not the current rule.

The current rule is... and the way that SATP, or the sex offender treatment is structured is, you don't really become eligible to take it or forced to take it until about 2 years before your first parole date, so by that time... especially in Mr. Lile's case.

He's been in prison for 15 years... most inmates are going to be at that level 3, so while he was grandfathered in, most inmates, when they get eligible or are forced to take it are going to be at level 3.

There has been no change in policy.

The State is now not saying that you don't get from level 1 to level 2 unless you participate in SATP.

The law still is, if you're at level 3, you're going to level 1, and you're going to go to maximum security, and you're going to stay there forever.

Again, the reference I was making at the first is, the arsonist--

Unidentified Justice: That's... this is a product of the... they don't have the facility to give this course to everyone, so they say, when you're getting closer to release time, you get it, so most people who were in as sexual offenders don't have the opportunity.

Mr. Wiltanger: --Well, the State wants all... wants their sex offenders to take it.

There is a little bit of a concern response, but what they do is, they move people around to make sure that those people who are coming out--

Unidentified Justice: But not their first year, from what I understand.

Mr. Wiltanger: --No, Your Honor.

I apologize if I misspoke.

You would not be entering into sex offender treatment your first year, typically.

Unidentified Justice: But your brief described a system where, suppose we had all sex offenders, they go in at level 1 unless they take the program.

That's something that doesn't exist in the current world only because of a lack of resources, that Kansas can't give this program to all the people who would qualify, so it concentrates on the people who have served a substantial part of their sentence already.

Mr. Wiltanger: That is correct, and please understand, Your Honor, that that is only one possible solution that would allow the State to continue to run its SATP.

Obviously, another solution, as set forth by the Tenth Circuit, would be immunity.

Another thing, to follow the program that the Federal Government runs, make it voluntary.

Extract no penalties, and punish no one if they don't want to participate in the program, or take away the admission of responsibility, or take away the need--

Unidentified Justice: The second one is no solution.

The State wants people to take it.

They think it's important for the rehabilitation of the people and for the safety of society.

They do want to exert some pressure for people to go into it.

The question is whether this pressure is somehow unconstitutional when you deprive the person of nothing to which he's entitled, nothing to which he had any expectation of receiving when he goes into prison.

He could have been kept at level 1 for his whole period there.

Mr. Wiltanger: --Your Honor, I agree with that.

The one distinction I would make is, the State has set up a system by which prisoners understand that if they do certain things they get to levels.

While there may not be a constitutional liberty interest in it, they do know that if they follow the rules they're going to get to this level.

But as far as addressing your first point, immunity would be the result then.

If you had to have everybody in the program, if there was no other option, then you would extend them immunity, or the other solution could be, if you wanted everyone in the program, don't make them admit guilt to their crime.

Don't make them catalogue every offense that they've never been charged with.

Don't then use a polygraph test to sit down and ferret out and make sure that you've got every single past crime.

That would be one solution beyond simple immunity.

Unidentified Justice: But that's a solution that isn't consistent with the therapist's idea that this is how it should be done.

Mr. Wiltanger: Potentially, Your Honor.

I mean, the State has not always required a written admission of responsibility.

It's only been within the past 10 years that they've required that.

But you're correct, the therapists apparently believe that you have to have an admission of responsibility.

I'm not sure why it has to be a written statement where you fess everything up.

Unidentified Justice: But certainly the Constitution can't turn on whether or not a written statement is required.

Mr. Wiltanger: I... Your Honor, I agree, that is correct.

Unidentified Justice: Do you know... I asked your opponent this question... the extent to which other States have granted immunity to solve this problem?

Mr. Wiltanger: There are a couple of States that I know off-hand, Your Honor.

California and Kentucky have confidentiality provisions, privileges that keep all of this stuff kept within.

I don't believe it's a majority of the States that do that.

I wish I had a better answer.

I do believe Kansas is the only State that requires all this additional ferreting out of additional information.

Unidentified Justice: Well, if the... the programs are important, I take it, really important, and they're thinking that this is a very important way to run them, I give them that, all right.

Now, if I take your approach... and I find this very difficult.

I take your approach, and I try to distinguish between what's the add-on as a privilege and the subtraction as a penalty, now my concern would be, I'm now facing a nightmare of varying situations in prisons across the country, and varying efforts to say what's the status quo in respect to a particular prisoner, what is an add-on as opposed to a subtraction, and the arguments are infinite.

Now, what could you say that would relieve me of that concern?

Mr. Wiltanger: Well, first, Your Honor, if this Court doesn't want to get drawn into a benefit versus a punishment distinction, you don't have to follow that for this rule.

That is the position that we mentioned in the brief, that there is... that we feel there is a difference between a benefit and a punishment.

But I also don't think that there will be a rash of litigation.

The Supreme Court law, obviously, as you know, speaks to sanctions, speak to penalty, anything that makes your indication of your Fifth Amendment rights costly, and we've have that rule for quite sometime, and certainly there have been cases that have come down since then where you look at it and decide, well, is he being penalized, so again I'm... I apologize if I'm sticking to a hypertechnical distinction, but I do believe that the law would not really complicate matters, and that there is not going to be a rash of litigation where--

Unidentified Justice: Well, you didn't answer the question, though, and I have the same problem Justice Breyer does.

I don't know that we can distinguish between a benefit and a sanction.

I don't know that that's a line that at the end of the day is going to be a good line, so what other line do you offer?

Mr. Wiltanger: --Well, I do believe that sanction... or what you can look at is, you could look at this Court's ruling as to what is a voluntary statement in the Colman case, whether or not he's being able to make an unconstrained choice.

Now--

Unidentified Justice: Why not look to what Sandin looked to in... true, not in the context of the Fifth Amendment, but in another context, and that is whether you have been deprived of in prison is beyond what is the normal expectation of prison life.

Mr. Wiltanger: --Your Honor, I think that does a couple of things, and why we disagree with Sandin.

One is, I think you're creating a new rule, whereas I think we already have a fine rule that works in the Fifth Amendment arena, and if we're concerned about applying a Fifth Amendment rule in the prison system--

Unidentified Justice: No, no, we don't have a rule that applies in the Fifth Amendment arena with regard to depriving people of things to which they are not entitled as free citizens.

When you deprive someone of a job, he isn't entitled to that job.

You are depriving him of some liberty that he, in fact, possessed.

Your client has been deprived of no liberty to which he was entitled, not a single liberty to which he was entitled.

He could have been kept in level 1 for his entire period in prison.

He would have had no complaint at all, so I don't think it's parallel to the out-of-prison cases, so it seems to me we need a new rule for in-prison cases.

We could have a rule that so long as you haven't been deprived of a liberty to which you're entitled, there has been no compulsion.

That goes pretty far.

We don't have to go that far.

We could use a line that Sandin uses, so long as what's been done to you doesn't go below the normal expectation of prison life.

I mean, if they said, you either enter this program or you're going to be in solitary for the rest of your 15 years, you know, that's beyond the normal expectation of prison life.

But what your client has suffered is not that, it seems to me.

Mr. Wiltanger: --Your Honor, I would agree with you that Mr. Lile has no liberty interest at play here, but I would also suggest that there is no liberty interest in an at-will employment.

This Court has previously found that if you're an at-will employee, you have no protected property or liberty interest, and yet in those cases like the Gardner case and the Garrity case there has been found a Fifth Amendment violation.

There certainly is no liberty interest in being a political party officer in the Cunningham case, and yet we still have a Fifth Amendment violation.

Unidentified Justice: Don't call it liberty, call it a right.

Call it a right.

Mr. Wiltanger: That's--

Unidentified Justice: He's entitled as a free citizen to have that.

Your client is not entitled to be in level 3.

Mr. Wiltanger: --But the way that the State has set up its structure, they have made rules that they want everybody working.

He's entitled to have a job.

They want him to have a job.

The other reason I think Sandin doesn't work, Your Honor, is I do share some of the concern that was previously expressed by some of the other justices, is that there would seem to be no reason why the State couldn't walk up and down the hall, or up and down the cells with a note pad and suggest, well, what's your crime, did you do it?

I'm not really concerned at whether you have an appeal ongoing or not, I just want to know whether you did it, and oh, by the way, please let me know everything else you've done.

Unidentified Justice: Okay, so we'll add to it, there has to be... and the State of Kansas is perfectly willing to add to it, it has to be for a legitimate penalogical purpose.

Mr. Wiltanger: And certainly I would agree with what's previously said, that there could be a legitimate penalogical purpose in confessing, in coming clean, and that you will not be a model prisoner unless you take responsibility for your crime, whether it be a sex offense or whether it be a murder.

The other reason I think Sandin is not applicable to this case, and should not be extended to this case, is that this Court actually said in Sandin, while you don't have a due process right in a particular level of confinement, you do retain other protections such as the First and the Eighth Amendment, that if we move you, you get moved from one place to another, you still may be able to bring a constitutional claim, and that's what Mr. Lile's done.

He's been moved in response to a proper indication of his Fifth Amendment rights, and he has brought a lawsuit against the State.

He his actually following some of the dicta in Sandin.

I don't think Sandin should be extended.

I do think there is a potential for abuse.

Why would Sandin, if you extend it, why would it necessarily be limited to the Fifth Amendment?

Is it possible that a State, if it wanted, to go around and abridge First Amendment rights and suggest that that's--

Unidentified Justice: That's... you see, I was thinking about that, and the trouble with analogies, if you get one that's very close, you become uncertain again.

I mean, suppose that the actual analogy was, there is a treatment program, and the treatment program requires the prisoner to be isolated and not get any mail and not write any letters to the newspapers for a couple of months, and they say as part of this... and it's totally legitimate, and they say as part of this legitimate treatment program that you can't write your letter to the newspaper, that's part of the treatment, and moreover, we'll give you a privilege if you do it.

And now what happens is, they grandfather one person in.

Now I'm back in the same... you see, I'm back in the same dilemma.

Maybe it's not quite as bad, because you don't have the word compelled there, but--

Mr. Wiltanger: --Your Honor, I agree with the concern over the technical distinction between benefit and penalty, but I would say in that instance, again, keep in mind that Mr. Lile's not just the sole person who's been grandfathered in.

He's one of many who were grandfathered in, but--

Unidentified Justice: --It's not the grandfather... I mean, it is the grandfather, isn't it, in this case that makes him... you said there were some other things, and I'd like to be sure to have them in mind, that make it a penalty and not just the withholding of a privilege.

Mr. Wiltanger: --Assume for the moment Mr. Lile were not grandfathered in.

Unidentified Justice: Yes.

Mr. Wiltanger: Assume for the moment he arrives... assume he committed his crime last year, and he gets sentenced to 20 years to life tomorrow.

If he were to enter the prison system at intake level 1, in about 18 years from now the State will ask him to take the sex offender treatment.

That's how it's typically planned.

Mr. Lile will follow the rules that the State has set out, will follow the regulations, will be a model prisoner, as Mr. Lile actually has been, and he will get all the way to level 3.

Unidentified Justice: I see.

Mr. Wiltanger: He will get all the way.

He will be there, and then--

Unidentified Justice: And crash--

Mr. Wiltanger: --in 2019 they say to him, please take SATP.

Unidentified Justice: --Well, one difference, certainly between the First Amendment and its cases and the Fifth Amendment is that there is a compulsion requirement in order to invoke the Fifth Amendment, where the First Amendment doesn't have anything like that.

Mr. Wiltanger: I agree.

They are different.

They are different standards.

The only point that I was trying to raise, Your Honor, is that I think Sandin is a little bit of a dangerous--

Unidentified Justice: I suppose--

--That's what distinguishes the detriment and the benefit.

There's a compulsion, but then it's a detriment.

The First... Fifth Amendment doesn't say it shall be unlawful to bribe a witness to get him to testify.

The Fifth Amendment draws the line between benefits and detriments, doesn't it?

Mr. Wiltanger: --It does, and that's again... I'm sorry.

Unidentified Justice: So the Kansas program would be perfectly okay, in your estimation, if it provided that at the end of 18 years of 20-year sentences, or 2 years before the end of their sentence, all sex offenders shall be reduced, all sex offenders shall be reduced to prison level 1.

Mr. Wiltanger: No, Your Honor, I... I'm--

Unidentified Justice: Why not, because then... then if they choose to come in this program they will be getting the benefit of going back up to 3, but all of them go down to 1.

Mr. Wiltanger: --I don't think that would be constitutional, Your Honor.

Unidentified Justice: Why not?

Mr. Wiltanger: I think it would be set up as a way to get around SATP and a way to get around the invocation of your Fifth Amendment rights.

Unidentified Justice: Well, any--

Mr. Wiltanger: It would be an artifice.

Unidentified Justice: --Well, of course it's an artifice, but so is the whole thing, benefit versus punishment.

I mean--

Mr. Wiltanger: The one thing I would encourage this Court to look at is, look at how it affects itself on the prisoner, and again, if you're going to look at the Colman case, which is... again, is his choice an unconstrained one?

Look at what is done to the inmate here.

He's never going to get back to level 3.

The arsonist will get back to level 3.

The arsonist will not be moved to maximum security.

Mr. Lile is there forever.

Unidentified Justice: --It's the same in my hypothetical, though.

There's no compulsion on him.

After his 18 years in prison he's been knocked back down to 1.

There's no compulsion on him.

He gets a benefit if he joins this program.

Mr. Wiltanger: If it's entirely divorced from the program or the Fifth Amendment, Your Honor, then that potentially would be constitutional.

I would agree with that.

But unfortunately for Mr. Lile's case, it's not how the State has set up the structure if you get to a point, you follow the rules, you become a model prisoner, and then you get broken down.

That's what they're doing here.

And again the point I was trying to make earlier is, the punishment's more severe.

The Court calls... or, excuse me, the State calls this punishment.

They call it punishment.

When we're dealing with arsonists, when we're dealing with rapists, when we're dealing with somebody who steals something, they call that punishment, but they're unwilling to call that punishment here.

It's an incentive.

It's a benefit, or an extension of a privilege, but it's not.

Unidentified Justice: You're saying to decide what is compulsion you've got to look at how other people are treated, in effect.

The... in your answer to Justice Scalia you said, you know, if everybody got knocked down within 2 years, no matter what the crime, there wouldn't be the constitutional problem, but if only these people are, even though it's written into the scheme the moment they go in, there still would be a constitutional problem, and it's a comparative treatment criterion among prisoners in different classes of offenses that you're relying on, isn't it?

Mr. Wiltanger: Somewhat, Your Honor.

Unidentified Justice: Yes.

Mr. Wiltanger: Somewhat, and I agree, if the State had set up a strict--

Unidentified Justice: Then let me ask you to concentrate on that question a little harder, because you did say in your brief that if all sex offenders... not all prisoners, all sex offenders on day 1 were put in class 1, they could stay there, and never get out unless the carrot that was dangled was taken.

You did say sex offenders.

You didn't say all prisoners.

Mr. Wiltanger: --That is correct.

Unidentified Justice: So apparently you are not objecting to a distinction between classes of prisoners.

Mr. Wiltanger: No, Your Honor, you're correct, and again that's consistent with the view that we took between the benefit and the sanction.

Unidentified Justice: So there isn't a comparative analysis as between classes of prisoners depending on their offense.

Mr. Wiltanger: No, Your Honor, there isn't.

Unidentified Justice: Okay.

Mr. Wiltanger: I apologize if I misspoke.

Unidentified Justice: Now, I understood you the other way.

That is, that you agree it would be an artifice, but if the State did not knock down all sex offenders to level 1 2 years before they get out, then you acknowledge your client wouldn't have a case.

Mr. Wiltanger: Essentially, yes, that is correct.

Again, that is not what we have in place here, but that is correct.

That is correct.

The Fifth Amendment's a bedrock principle.

This Court says it's the mainstay of the criminal justice system, and there's no more powerful piece of evidence than someone's confession.

They ask a lot of Mr. Lile and other sex offenders.

They not only ask for the admission of guilt, they ask for everything, catalogue and give me everything you want, and despite what the State says, there really isn't a great deal of confidentiality.

These records can be subpoenaed.

They have to turn these records over if someone were to make an admission about a child sexual offense.

Further, these inmates are forced to discuss this stuff in group therapy session.

There's no confidentiality, and also to point out, the State has not appealed or contested that what it seeks is incriminating information.

This information, the Fifth Amendment itself, is far too valuable that the State can go around and force people to give it up and to extract penalties and punishment for that.

Thank you for your time.

Unidentified Justice: Thank you, Mr. Wiltanger.

Mr. McAllister, you have 3 minutes.

REBUTTAL ARGUMENT OF STEPHEN R. McALLISTER ON BEHALF OF THE PETITIONERS

Mr. McAllister: Thank you, Mr. Chief Justice, and may it please the Court:

I'd like to start, Justice O'Connor, by answering a question you raised.

Can the State simply take away all the privileges?

Absolutely not.

We recognize at some point it becomes compulsive, that this Court has always treated the Fifth Amendment compulsion inquiry as contextual.

We're simply arguing that in prison that's a very different context from being on the outside and losing a job or losing your law license.

At some point a court could decide, if we took away everything from Mr. Lile, that maybe that would be compulsive, so we're not saying we can take away everything, but what we're saying is, what we're using here is mild in the way of incentives in a prison.

We haven't taken away his right to spend money at the canteen, his right to have visitors, his right to earn money.

We've limited them, but none of that has been taken away from him completely.

That--

Unidentified Justice: They're saying with the cohort of prisoners you'll go along for 10 years, all of them earning points and credits, and then after 10 years, they're all up to level 3, and then because he won't go in the program, he alone is pushed back to level 1, and that's a big change, and he says that's taking away--

Mr. McAllister: --Yes.

Unidentified Justice: --something.

Mr. McAllister: Yes, but I mean, in our view there's an important penalogical reason for doing that, and it doesn't rise to the level of compulsion because we're in the prison setting.

That's why we think Sandin is helpful here.

Unidentified Justice: But why wouldn't the same penalogical reason justify taking away all privileges?

In other words, why did you make the concession you made at the beginning of your rebuttal?

Mr. McAllister: Because, all I'm saying is at some point even Sandin recognizes at some point things are atypical and they exceed the line, so although he could be moved to disciplinary segregation without a due process hearing, if he was put in solitary confinement, that might have been different.

There is a line at which it becomes too much.

Unidentified Justice: No, but if he were put in solitary confinement it would be justifiable, if at all, because of a penalogical reason for the way he had behaved in prison, creating dangerous conditions, et cetera.

Why isn't the rehabilitation of sex offenders who, if unrehabilitated will go out in the community and repeat their crimes, just as important a penalogical reason, and why wouldn't it justify taking away all privileges?

Mr. McAllister: Because the text of the Fifth Amendment says no person shall be compelled, and the question is compulsion, and at some point, if we took away everything, or we make him work 20 hours a day or... we could do things to him that I think the Court would have to say--

Unidentified Justice: No, but you're saying... if I understand your argument, you're saying, one reason why you should not characterize this as compulsion is the valid penalogical reason for doing it.

Mr. McAllister: --That's part of it.

Unidentified Justice: And my suggestion is, if there... if the State should say, look, the protection of these victims on the outside, who are going to be preyed upon by this person if not rehabilitated, is just as important as preventing people from setting fires in their cells, and therefore, if we take all privileges to the fire-setters, we've got an equally good penalogical reason to take away all privileges from the person who won't go into the program.

Mr. McAllister: And that I agree with.

We do have potentially--

Unidentified Justice: Then you could take away all the privileges.

Mr. McAllister: --Not all the privileges, because it has to rise to the level of compulsion, and if they are entitled to nothing in prison--

Unidentified Justice: That's the question.

Mr. McAllister: --That's the question, and--

Unidentified Justice: Give him some rebuttal time.

Go ahead.

Mr. McAllister: --That's all right.

I mean, that is the question, and again, the point that was drawn out here on the distinction between--

Unidentified Justice: --extended your time for 2 minutes, Mr. McAllister, because you really didn't have a chance to say much of anything, I'm afraid.

Mr. McAllister: --All right.

[Laughter]

Unidentified Justice: Thank you, Mr. Chief Justice.

The distinction here between a loss of privilege and the granting of a benefit in the State's view is simply a semantic game.

There really... I mean, from the inmate's perspective it just can't be any different, and if the notion is what we should have done is, we should all treat them as... we should treat them all when they come in as poorly as we can as long as we satisfy constitutional minimum, treat them as poorly as we can, and then make them earn everything, if that's all it takes, we can go back and do that, but that certainly doesn't benefit inmates as a class, and it's certainly not how prisons are run at this time in this country.

It would be a vast shift in the way prisons are administered.

So that's really a semantic game, and the key inquiry here is, are we compelling them, are we doing something sufficiently substantial to these inmates to override their will and really force them to make these admissions, again which are in a treatment context, not to law enforcement officials, confidentiality guidelines, we've never prosecuted someone for anything they've said in this program--

Chief Justice Rehnquist: Thank you, Mr. McAllister.

Mr. McAllister: Thank you, Mr. Chief Justice.

Chief Justice Rehnquist: The case is submitted.