THE OSTRICH APPROACH TO CONSTITUTIONAL INTERPRETATION:
A Supreme Court Decision About Prisoners' Fifth Amendment Rights

On June 10th, in the case of McKune v. Lile, the Supreme Court upheld a Kansas prison policy requiring sex offenders to enter a treatment program in which they must confess all prior crimes without a grant of immunity. The penalty for a prisoner's refusal to participate in the program is a loss of various privileges and a transfer to a maximum-security unit.

Robert G. Lile, a convicted rapist, refused to participate in the program. He went on to challenge the Kansas scheme, arguing that it compels him to incriminate himself in violation of the Fifth Amendment. A five-Justice majority rejected his claim.

What the Fifth Amendment Means

The Fifth Amendment provides that a person may not be "compelled in any criminal case to be a witness against himself." If read narrowly, this language could mean simply that when the government tries a defendant for a crime, the prosecutor may not call the defendant as a witness for the State. The Supreme Court, however, has consistently rejected such a narrow reading of the text.

The Court has instead ruled that before a government official may demand statements - in any context - that could establish a link in the chain of evidence against a speaker, the government must first give the speaker "use immunity," guaranteeing that nothing he says will ever be used to convict him of a crime. Oliver North, for example, was entitled to (and received) such immunity before being ordered to testify for Congress.

In some especially coercive situations, moreover, the Court has developed additional protections to prevent the government from exploiting a suspect's weakness. Two examples of such solicitude - which I will discuss in turn - are a series of decisions known as the penalty cases, and the rules known generally under the rubric of "Miranda rights."

The Penalty Cases: Punishing the Invocation of Fifth Amendment Rights

In a series of decisions handed down in the late 1960's and early 1970's - the penalty cases - the Supreme Court held that the government violates the Fifth Amendment when it threatens to deprive a person of his livelihood if he fails to offer self-incriminating statements.

In one decision, for example, Uniformed Sanitation Men Assn., Inc. v. Commissioner of Sanitation of City of New York, the Court ruled that a public employer had violated the Fifth Amendment by terminating twelve employees for refusing - on Fifth Amendment grounds - to answer a series of questions.

The Court understood in the penalty cases that a person's livelihood is so critically important to her that the threat of termination is legally equivalent to a threat of contempt directed against a defendant witness in a criminal trial.

Miranda: The Right to Warnings Before Custodial Interrogation

Another special Fifth Amendment context is that of custodial interrogation.

Under normal circumstances, a person must assert his Fifth Amendment rights or forfeit them. When a police officer asks, for example, "Where were you last night?," the response, "I was with my brother, robbing a convenience store" will ordinarily be deemed a voluntary, admissible confession. The suspect was presumably free to say, "I refuse to answer on the grounds that my response might incriminate me." Therefore, he waives his rights when he answers the question without invoking the Fifth Amendment.

An exception to this principle applies, however, when the speaker is in government custody - for example, after a police officer has placed him under arrest.

The atmosphere of questioning that occurs in custody is fraught with coercion. Recognizing this reality, the Court in Miranda v. Arizona required government officials to administer warnings prior to any interrogation, notifying the suspect of his right to remain silent and the other familiar Miranda rights. In the absence of these warnings, any subsequent questioning is automatically illegal.

McKune: A Case That Should Have Been An Easy Victory For The Prisoner

What ought to have made this month's case, McKune, especially easy to decide is that it falls within the special circumstances of both the penalty cases and Miranda.

Consider the facts. Kansas officials ordered Lile to participate in a therapy program while he was still a prisoner in custody. Though the goal was ostensibly rehabilitation, Lile was given no promise of secrecy for his disclosures within the therapeutic process. (This, despite the fact that in the 1996 case of Jaffee v. Redmond, seven Justices deemed confidentiality an essential component of successful therapy and accordingly established the psychotherapist-patient privilege in federal court).

Within the mandated therapy, Lile and all other participants would be ordered to fill out a "sexual history form, which details all prior sexual activities, regardless of whether such activities constitute uncharged criminal offenses." Participants would then undergo polygraph tests to verify the accuracy and completeness of the sexual history.

One might have expected that as a prisoner in custody, Lile would have received Miranda warnings before being asked for such a thorough catalogue of incriminating admissions. But no such warnings were forthcoming.

Instead, Lile received a very different sort of caution. Kansas officials told him that if he did not acknowledge every past sexual crime in writing, he would be transferred to a maximum security prison and lose the privileges that he had earned through good behavior over a period of six years of incarceration.

A prisoner in custody, in other words, was ordered to incriminate himself on pain of (among other things) transfer to an even more dangerous environment than the one in which he then resided.

Justice Kennedy's Plurality Opinion: Relying on An Inapposite Balancing Test

In a plurality opinion, joined by Chief Justice Rehnquist and Justices Scalia and Thomas, Justice Kennedy rejected the application of the "so-called penalty cases" to convicted criminals serving time in prison. Relying by analogy on a set of decisions that curtailed such rights as free expression and privacy within prison walls, Justice Kennedy asserted that a prisoner's Fifth Amendment interest may be balanced against the "legitimate penological objective" of rehabilitating sex-offenders. Though Kansas could have avoided the entire constitutional question by granting use immunity to inmates as part of their therapy, Justice Kennedy opined that it did not have to do so, since a refusal to grant immunity teaches prisoners that actions have consequences. (Of course, coercing confessions from guilty people always carries this educational benefit).

Such a balancing test made sense in the earlier cases that Justice Kennedy cited. In Turner v. Safley, for example, the Court upheld regulations limiting mail correspondence between inmates at different prisons. The Court said there that in analyzing prisoners' assertion of liberty rights, "[s]ubjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration."

This logic works quite well in the context in which it was initially applied: Orderly prison administration would seem legitimately to limit expressions of individuality by incarcerated convicts. Such a balancing of rights against institutional needs, however, is singularly inappropriate in analyzing Fifth Amendment issues.

The Fifth Amendment right against compelled self-incrimination protects a speaker at any future criminal trial. It forces the prosecution to build its case without relying on coerced confessions. It is accordingly not a right to exercise liberties (such as free speech or association) within a prison's walls. The government interest in refusing a person use immunity is therefore the same, regardless of where the suspect is located at the time he invokes the Fifth Amendment.

Indeed, accepting as true the state's dubious claim that a confession without immunity reduces recidivism, the government's interest in obtaining such immunity-free confessions should be greater when an offender is at large and in a position to commit further crimes in the immediate future than when he is safely behind bars.

Justice O'Connor's Concurring Opinion: Applying the Penalty Cases

Justice O'Connor, in her concurrence, appears to reject the plurality's view that the penalty cases do not apply to prisoners. She nonetheless reaches the same result as the plurality does.

Justice O'Connor concludes that the threatened penalty for refusing to participate in rehabilitation is not sufficiently serious to qualify as compulsion under the precedents. Just as the plurality chooses to disregard the coercive, custodial atmosphere of a prison in interpreting the Fifth Amendment privilege, Justice O'Connor chooses to ignore the dangers of living in a maximum security facility.

In the penalty cases, Justice O'Connor observes, people were threatened with the loss of their livelihood. "To support oneself in one's chosen profession is one of the most important abilities a person can have. A choice between incriminating oneself and being deprived of one's livelihood is the very sort of choice that is likely to compel someone to be a witness against himself." Justice O'Connor suggests that in prison, by contrast, "[b]ecause the prison is responsible for caring for respondent's basic needs, his ability to support himself is not implicated . . . ."

Justice O'Connor even expresses skepticism about the importance of the district court's finding that a maximum security prison is more dangerous than a medium security prison (where Lile resided when presented with the choice to undergo treatment or face transfer to a maximum security facility). She states that "there was no finding about how great a danger such a placement posed. Because it is respondent's burden to prove compulsion, we may assume that the prison is capable of controlling its inmates so that respondent's personal safety is not jeopardized by being placed in the maximum-security area of the prison, at least in the absence of proof to the contrary."

This statement would appear to define the expression "out of touch." Though, as Justice O'Connor rightly recognizes, losing one's source of livelihood on the outside represents a grave loss, the notion that a prison takes care of its inmates' needs and thus renders "minor" even drastic changes in their environment of captivity simply blinks at reality.

The threat of termination at work is as serious and coercive as it is precisely because one's material circumstances - including such things as the ability to have sufficient living space, personal property, and safety from violent assault - ordinarily depend on one's ability to earn a living. By directly threatening a change in these circumstances, Kansas prison officials pressured Lile just as much as (if not more than) a government employer who says "talk or you're fired."

Insensitivity Makes a Majority

What unites the plurality and concurrence in McKune is a shared, almost astonishing insensitivity to a prisoner's lot.

One need not find sexual offenders sympathetic or appealing to recognize that McKune was wrongly decided. To understand that the decision is wrong may, however, require that one be willing to an engage in an intellectually honest inquiry about the governing precedents and the significance of the various distinctions between prisoners and free people.

The requirement that a prisoner confess without immunity is not a legitimate prison regulation, and the threat of transfer to a maximum security facility is not a minor inconvenience. Unfortunately, it seems, five Justices could not be troubled with the facts.