by Dale Chappell

Indiana’s Sex Offender Management and Monitoring (SOMM) program violated the Fifth Amendment by compelling prisoners to incriminate themselves or face longer prison terms, the U.S. District Court for the Southern District of Indiana held on September 28, 2017.

The ruling was entered in a class-action suit that began four years ago when Donald Lacy filed a complaint under 42 U.S.C. § 1983, claiming the Indiana Department of Correction (IDOC) violated his constitutional rights by revoking his good-conduct time (GCT) after he refused to incriminate himself in order to comply with the SOMM program.

Lacy, convicted by a jury of child molestation in 2008, has always maintained his innocence. When he refused to admit guilt as required by the SOMM program, he was disciplined for failing to participate and lost good-conduct time. Lacy continued to maintain his innocence and was at risk of losing all his GCT – more than 2,000 days – after being hit with over a dozen disciplinary actions for refusing to comply with SOMM.

Lacy was not alone. Other prisoners filed lawsuits after losing their GCT for failing to admit guilt or refusing to admit to past criminal conduct for which they were never charged. They all claimed they were being punished with longer prison terms for invoking their Fifth Amendment right to avoid incriminating themselves.

The district court sua sponte dismissed Lacy’s complaint for failure to state a claim upon which relief could be granted, and he appealed. The Seventh Circuit explained that while Lacy’s motion could not challenge the loss of GCT under § 1983, he should be allowed to change his filing to one under 28 U.S.C. § 2254, which does permit such a challenge. The Court of Appeals also noted that Lacy’s claim was still an open question that should be addressed. See: Lacy v. Indiana, 564 Fed.Appx. 844 (7th Cir. 2014).

On remand, the district court combined the other prisoners’ lawsuits with Lacy’s and granted class-action status, defining the members of the class as “All persons incarcerated in the Indiana Department of Correction who have been asked to participate in the Indiana Sex Offender Management Program, who have refused to participate because they refuse to confess guilt on the primary offense or disclose other criminal conduct as required by the [SOMM] program, and who have been subjected to disciplinary action in the form of lost credit time and/or demotion in credit class as a result.” The court noted that only 87 of the more than 250 eligible prisoners had shown an interest in the suit. [See: PLN, Nov. 2016, p.20].

On July 10, 2017, Sara J. Varner with the Indiana Federal Community Defender’s Office, who had been appointed by the district court, filed an amended § 2254 petition on behalf of the class members, reiterating Lacy’s claim that the SOMM program was unconstitutional. She also moved for summary judgment.

The Fifth Amendment, applied to the states through the Fourteenth Amendment, guarantees a person the right to be free from compelled self-incrimination. The U.S. Supreme Court held in Lefkowitz v. Cunningham, 431 U.S. 801 (1977) that “the touchstone of the Fifth Amendment is compulsion” – that a person must be compelled in some way to incriminate themselves to establish a Fifth Amendment violation.

In McKune v. Lile, 536 U.S. 24 (2002) [PLN, Oct. 2002, p.8], the Supreme Court held in a plurality opinion that Kansas’ sex offender program, which was similar to Indiana’s, did not compel prisoners to incriminate themselves because it only revoked privileges – such as commissary and better housing assignments – for refusal to comply, which did not rise to the level of “compulsion.” That decision did not address whether depriving a prisoner of a right, such as GCT, would amount to compulsion, but hinted that it would. Indiana prisoners have a right under state law to good-conduct time absent bad behavior.

The SOMM program requires prisoners to admit their guilt of the offense for which they were convicted, plus any past criminal conduct even if they were never charged. Refusal to comply results in disciplinary action and loss of 180 days of GCT every two months for continuing to refuse. No immunity is offered; prisoners are advised that their admission to past criminal conduct may be turned over to law enforcement and result in new charges.

The district court agreed that Indiana’s SOMM program compels self-incrimination in violation of the Fifth Amendment by forcing prisoners to confess their guilt or spend more time in prison through loss of GCT. The court acknowledged that while McKune held prison officials may revoke privileges for refusing to comply, GCT is a right under state law, not a privilege, and when revoked it amounts to “compulsion” under the Fifth Amendment. The court therefore granted summary judgment in favor of the prisoners and ordered that the disciplinary charges and sanctions they received for refusing to participate in SOMM must be vacated.

Prison officials vowed to keep fighting, however, filing an appeal on October 30, 2017 and an emergency motion to stay the district court’s ruling. The State Attorney General’s Office, which represents prison officials, argued that “unquestionable and irrevocable harm to government actors, as well as the citizenry of Indiana will be sustained, the consequence of which greatly outweighs the harm to the limited persons affected by the judgment,” if the court’s decision was not stayed. “Various sex offenders, including three of the class representatives, are eligible for immediate release,” the defendants stated.

The district court rejected that argument and denied the motion to stay. The state’s appeal remains pending before the Seventh Circuit. See: Lacy v. Butts, U.S.D.C. (S.D. Ind.), Case No. 1:13-cv-00811-RLY-DML. 

Additional source: www.indystar.com

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