Abigail Robinson - Mckune v. Lile

Treating the Sex Offender at Any Cost: Fifth
Amendment Privilege Against Compelled Self-

Incrimination in the Prison Context
[McKune v. Life, 122 S. Ct. 2017 (2002)]
Abigail E. Robinson*
My individual right, whose embodiment has hitherto been immediate

and abstract, now similarly becomes embodied in the existent will and
knowledge of everyone, in the sense that it becomes recognized. 1
I. INTRODUCTION
From 1980 to 1994 the number of sex offenders housed in Ameri-

can state prisons quadrupled from 20,500 to 88,100. 2 "Sex offender"
describes inmates convicted of rape, forcible sodomy, child molesta-
tion, and other sexual assaults. 3 Unfortunately, merely incarcerating
sex offenders does not protect innocent citizens.
On average, convicted sex offenders are sentenced from six and
one-half to ten years in prison,4 but they typically only serve about
fifty percent of their sentences. 5 Furthermore, sex offenders who re-
enter society are "more likely than any other type of offender to be
rearrested for a new rape or sexual assault."6 In fact, in 1994 an aver-
age of seventeen percent of sex offenders had been previously con-
victed for rape or sexual assault. 7 In an effort to decrease recidivism
rates, many prisons have implemented treatment programs for sex
offenders. s
* B.A. 1997, Southwestern College; J.D. Candidate 2004, Washburn University School of
Law. 1 would like to thank Professor Bill Rich and Amy Jurgensmeier for their patience and
guidance on this project. 1 would like to dedicate this project to my husband Kevin Robinson
and my mother Kay Burgess, both of whom inspire all of my efforts.
1. HEGEL'S PHILOSOPHY OF RIGHT 'If 217, at 139 (T. M. Knox trans., Oxford Univ. Press
1967) (1952).
2. PETER FINN, U.S. DEP'T OF JUSTICE, SEX OFFENDER COMMUNITY NOTIFICATION 1
(Feb. 1997), http://www.ncjrs.org/pdffilesI162364.pdf.
3. LAWRENCE A. GREENFIELD, U.S. DEP'T OF JUSTICE, SEX OFFENSES AND OFFENDERS:
AN ANALYSIS OF DATA ON RAPE AND SEXUAL ASSAULT 17 n.2, http://www.rainn.org/
Linked%20files/soo.pdf (1997).
4. [d. at 20.
5. [d.
6. McKune v. Lile, 122 S. Ct. 2017, 2024 (2002) (citing BUREAU OF JUSTICE STATISTICS,
U.S. DEP'T OF JUSTICE, SEX OFFENSES AND OFFENDERS 27 (1997); BUREAU OF JUSTICE STATIS.
TICS, U.S. DEP'T OF JUSTICE, RECIDIVISM OF PRISONERS RELEASED IN 1983, at 6 (1997» (United
States Reports pagination not available at time of pUblication).
7. See GREENFIELD, supra note 3, at 22 fig.23.
8. See NAT'L INST. OF CORR., U.S. DEP'T OF JUSTICE, A PRACTITIONER'S GUIDE TO
TREATING THE INCARCERATED MALE SEX OFFENDER: BREAKING THE CYCLE OF SEXUAL
ABUSE 2 (Barbara K. Schwartz ed., 1988) [hereinafter PRACTlTlONER'S GUIDE].
725
726 Washburn Law Journal [Vol. 42
Treating sex offenders is generally a successful tool for decreasing

recidivism. 9 However, some state prisons have hastily implemented
treatment programs that not only violate an inmate's Fifth Amend-
ment privilege against self-incrimination, but also undermine the over-
all success of the program. The United States Supreme Court recently
upheld this type of program in McKune v. Lile.lO In McKune, the
Court addressed whether Kansas' prison regulations regarding sex-
offender treatment, which denied use immunity to inmate partici-
pants, violated the participants' privilege against self-incrimination.!1
The Court found that penalizing an inmate for invoking his right to
silence by removing all privileges and transferring the inmate to a
maximum-security unit from a medium-security unit did not constitute
compulsion in violation of the inmate's privilege against self-incrimi-
nationP The Court reasoned that the prison regulations served a le-
gitimate penological interest - rehabilitation,13 and that the penalties
at issue were not "atypical and significant hardships in relation to the
ordinary incidents of prison life."14
In McKune, the United States Supreme Court failed to follow
precedents, misapplied a due process standard to an enumerated lib-
erty interest, and encouraged states to implement unsuccessful pro-
grams in violation of an inmate's privilege against self-incrimination.
Moreover, the Court's limited decision did not address penalties such
as parole or good-time credit revocation 15 and, therefore, left lower
courts with many unanswered questions.
II. CASE DESCRIPTION
Robert G. Lile was an inmate serving time in medium level secur-

ity at Lansing Correctional Facility located in Lansing, Kansas. 16 In
1983,17 Lile was convicted of rape, aggravated sodomy, and aggra-
vated kidnapping of a female high school student. ls Lile pled not
guiltyl9 to the crimes and maintained that his sexual interaction with
9. See id. at xiii. Studies from 1988 showed that recidivism rates for treated sex offenders
were as low as fifteen percent and as high as eighty percent for untreated sex offenders. Id.
10. 122 S. Ct. 2017 (2002).
11. Id. at 2025. Use immunity bars a state from using compelled self-incriminating state-
ments against an individual in a criminal prosecution. See BLACK'S LAW DICTIONARY 754 (7th
ed. 1999). In contrast, transactional immunity is a complete bar from criminal prosecution. See
id.
12. McKune, 122 S. Ct. at 2022-23.
13. See id. at 2032.
14. See id. at 2027, 2030-31.
15. Id. at 2027.
16. See Brief for Respondent at 1, McKune (No. 00-1187).
17. Lile v. McKune, 224 F.3d 1175, 1178 (10th Cir. 2000) [hereinafter Life Il.
18. McKune, 122 S. Ct. at 2022-23.
19. Life I, 224 F.3d at 1178.
2003] Comment 727
the alleged victim was consensual.2° Because Lile was serving time for
a sex offense, prison officials ordered Lile to participate in a sexual
abuse treatment program (SATP) before his release from prison?1
The SATP requires participants to sign an "Admission of Re-
sponsibility" form.22 On the form, the participant must admit he is
guilty of the crime for which he was sentenced. 23 Participants are also
required to explain in detail all prior criminal and non-criminal sexual
activities. 24 To verify whether the participant is being truthful, the
SATP administers a polygraph examination. 25 Kansas does not grant
immunity for any statements made by program participants, and any
incriminating statements may be used against the participant in future
criminal proceedings.26 If an inmate admits to any sexual offenses in-
volving a child, prison officials must report the inmate. 27 If an inmate
invokes his right to silence, he is not allowed to participate in the pro-
gram?R his privilege status is reduced from Level III to Level I, and he
is transferred to a maximum-security unit. 29
Reducing an inmate's privilege status from Level III to Level I
involves a reduction in the inmate's "visitation rights, earnings, work
opportunities, ability to send money to family, canteen expenditures,
[and] access to a personal television. "30 Inmates who commit felonies
while in prison are sanctioned in the same manner. 31 A transfer from
a medium-security unit to a maximum-security unit would involve a
reduction in the inmate's movement, the inmate would be moved
from a two-person cell to a four-person cell, and the maximum-secur-
ity unit would potentially be more dangerous. 32
Although Lile wanted to participate in the SATP,33 he declined
because he would have been forced to confess to crimes that he main-
tained he did not commit. 34 If Lile had participated in the program
and confessed to his guilt, he would have lost any chance "for a new
20. Lile v. McKune, 24 F. Supp. 2d 1152, 1154 (D. Kan. 1998) [hereinafter Lile II]; see also
McKune, 122 S. Ct. at 2023.
21. McKune, 122 S. Ct. at 2023; see also Respondent's Brief at 1, McKune (No. 00-1187).
22. McKune, 122 S. Ct. at 2023.
23. ld.
24. ld.
25. ld.
26. ld.
27. See Respondent's Brief at 6, McKune (No. 00-1187).
28. Lile J, 224 F.3d 1175, 1181 (10th Cir. 2000).
29. McKune, 122 S. Ct. at 2023.
30. /d.
32. McKune, 122 S. Ct. at 2023.
34. McKune, 122 S. Ct. at 2023; see also Respondent's Brief at 6, McKune (No. 00-1187).
trial based upon newly-discovered evidence."35 Lile also would have

exposed himself to a charge of perjury.36
Lile invoked his right to silence and declined to participate in the
SATP. In anticipation of the sanctions imposed for inmates who de-
cline to participate in SATP, Lile brought an action against the Secre-
tary of the Kansas Department of Corrections and the warden of
Lansing Correctional Facility, pursuant to 42 U.S.c. § 1983.37 Lile
sought to prevent the defendants from reducing his prison privileges
and transferring him to a maximum-security unit.3 8 Lile claimed that
the sanctions imposed as a consequence of his refusal to make incrimi-
nating statements qualified as compelling and, therefore, without the
protection of immunity, violated his Fifth Amendment privilege
against self-incrimination. 39 The United States District Court for the
District of Kansas held that removing privileges and transferring an
inmate to maximum-security as a consequence of refusing to incrimi-
nate oneself qualified as "coercion in violation of the Fifth
Amendmen t. "40
The district court looked to holdings by the United States Su-
preme Court for guidance in evaluating compulsion. 41 The district
court noted that the United States Supreme Court's precedent on this
issue provided that "the choice to waive the privilege against self-in-
crimination is considered voluntary only if the individual suffers no
such penalty as a result. "42 Further, the district court noted that
"when the government compels incriminating testimony by threat of
'potent sanctions,' the testimony is obtained in violation of the Fifth
Amendment. "43
The State appealed to the United States Court of Appeals for the
Tenth Circuit. On appeal, the State argued that there was no compul-
sion, as Lile's decision whether or not to participate in the SATP was
voluntary and Lile did not have a "protected liberty interest in any of
the privileges that would be withheld."44 The State claimed that the
standard for evaluating whether there was compulsion should be
whether the sanctions impose "'atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life."'45

36. See id.
McKune, 122 S. Ct. at 2023; Lile I, 224 F.3d 1175, 1178 (10th Cir. 2000).
37.
McKune, 122 S. Ct at 2023.
38.
See Lile II, 24 F. Supp. 2d 1152, 1156 (D. Kan. 1998).
39.
McKune, 122 S. Ct. at 2023.
40.
Life II, 24 F. Supp. 2d at 1157-58.
41.
42. Id. at 1158 (citing Minnesota v. Murphy, 465 U.S. 420, 428 (1984».
43. Id. (quoting Lefkowitz v. Cunningham, 431 U.S. 801, 805 (1977».
44. Life I, 224 F.3d 1175, 1180 (10th Cir. 2000).
45. Id. at 1183 (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995». In Sandin, the Court
held that a liberty interest arising from a state statute is generally "limited to freedom from
2003] Comment 729
However, the court of appeals noted that "nowhere in the relevant

jurisprudence does the [United States] Supreme Court even hint that
an individual attempting to show a violation of his Fifth Amendment
privilege must have a protected liberty interest for compulsion to oc-
cur" and declined to use such a high standard.46
The court of appeals followed the standard for compulsion set out
in Lefkowitz v. Cunningham,47 where the United States Supreme
Court held that there was compulsion if the consequences imposed
were sufficiently potent and substantia1. 48 The court of appeals found
that the sanctions imposed qualified as "penalties sufficient to impli-
cate the Fifth Amendment."49 Further, it concluded that because of
the compulsive nature of the penalties the program was not truly vol-
untary as the State claimed. 50
After determining that Lile's Fifth Amendment rights had been
burdened, the court of appeals then followed the standard set out by
the United States Supreme Court for evaluating whether a state's pe-
nological objective outweighed an inmate's constitutional right. 51 The
United States Supreme Court "assesses the constitutionality of prison
regulations and practices by examining whether the prison policy at
issue 'is reasonably related to legitimate penological interests.' "52 The
court of appeals acknowledged that the State had a legitimate interest
in rehabilitating sex offenders; however, the program was not reasona-
bly related to the State's interest. 53 Therefore, the program violated
Lile's Fifth Amendment privilege against self-incrimination. 54
The State petitioned and the United States Supreme Court
granted certiorari. 55 The United States Supreme Court addressed the
issues raised in both the district court and the court of appeals. 56 The
United States Supreme Court reversed the court of appeals' decision
and held that the SATP was constitutionalY
restraint" and is implicated only when an inmate faces "atypical and significant hardship .. , in
relation to the ordinary incidents of prison life:' 515 U,S, at 484.
46. Life I, 224 F.3d at 1183-84 (citing Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272
(1998».
47. 431 U.S. 801 (1977).
48. See id. at 805.
49. Lile I, 224 F.3d at 1185.
50. See id. at 1186.
51. Id. at 1190 (citing Turner v. Safley, 482 U.S. 78 (1987».
52. Id. (quoting Turner, 482 U.S. at 89).
53. Id. at 1191-92.
54. Id. at 1192.
55. McKune v. Lile, 532 U.S. 1018 (2001).
56. See generally McKune v. Lile, 122 S. Ct. 2017 (2002). Justice Anthony Kennedy wrote
the opinion, in which Chief Justice William Rehnquist, Justice Antonin Scalia, and Justice Clar-
ence Thomas joined. Id. at 2022. Justice Sandra Day O'Connor wrote a concurring opinion. Id.
at 2032 (O'Connor, J., concurring). Justice John Paul Stevens wrote a dissent, in which Justices
David Souter, Ruth Bader Ginsburg, and Stephen Breyer joined. Id. at 2035 (Stevens, J.,
dissenting).
57. Id. at 2026, 2032.
III. BACKGROUND
The privilege against self-incrimination arises from the Fifth

Amendment to the United States Constitution, which provides that no
person "shall be compelled in any criminal case to be a witness against
himself."58 The object of the privilege against self-incrimination is to
protect an "individual against being involuntarily called as a witness
against himself ... in any ... civil or criminal [proceeding], formal or
informal, where the answers might incriminate him in future criminal
proceedings."59 In Malloy v. Hogan,60 the United States Supreme
Court extended the privilege against self-incrimination to state action
through the Due Process Clause of the Fourteenth Amendment. 6l
A. Components of the Privilege Against Self-Incrimination

The following three components are necessary to implicate the
privilege against self-incrimination: the privilege must ordinarily be
invoked,62 the statement must be incriminating,63 and the statement
must be compelled. 64
The United States Supreme Court held that the privilege against
self-incrimination was not self-executing. 65 If a witness "desires the
protection of the privilege, he must claim it or he will not be consid-
ered to have been 'compelled' within the meaning of the
Amendment. "66
To qualify as incriminating there must be a "real danger" of pros-
ecution, and not merely a "remote and speculative possibilit[y)."67
For instance, in Zicarelli v. N.J. Investigation Commission,6R the
United States Supreme Court held there was no real danger of incrim-
ination where the defendant claimed that he could not testify because
he feared his testimony would have exposed him to foreign criminal
prosecution. 69 In Zicarelli, the defendant would have been asked one
hundred questions, of which only one of those questions might have
58. U.S. CONST. amend. V. The language provided in the Fifth Amendment to the United
States Constitution is identical to language found in Section Ten of the Kansas Constitution Bill
of Rights and "grants no greater protection." Bankes v. Simmons. 963 P.2d 412, 418 (1998).
59. Lefkowitz v. Turley, 414 U.S. 70, 77 (1973).
60. 378 U.S. 1 (1964).
61. See id. at 6.
62. See Minnesota v. Murphy, 465 U.S. 420, 429 (1984).
63. See Zicarelli v. N.J. Investigation Comm'n, 406 U.S. 472, 478 (1972).
64. United States v. Washington, 431 U.S. 181,187 (1977).
65. See United States v. Monia, 317 U.S. 424, 427 (1943). The Court has held that there are
circumstances in which an individual will fall within the protection of the privilege against self-
incrimination without invoking the privilege. See id. at 429·40 (discussing exceptions, which in-
clude the inherently coercive environment of a custodial setting; imposing a compelling penalty
for asserting the privilege; and "federal occupational and excise taxes on gamblers").
66. Id.
67. See Zicarelli, 406 U.S. at 478.
68. 406 U.S. 472.
69. See id. at 478, 480.
2003] Comment 731
produced an incriminating answer, which was insufficient to qualify as

incriminating.7° The Court reasoned that it was "plain from the con-
text in which the question was asked that it sought an answer concern-
ing geographical areas in New Jersey,"7l and that "he could have
answered [the] question truthfully without disclosing" his foreign
criminal responsibilities.72
In United States v. Washington,?3 the United States Supreme
Court held that "even the most damning admissions" will not violate
the Fifth Amendment privilege against self-incrimination in the ab-
sence of official coercion.74 Further, the Court provided that the test
for coercion/compulsion was whether the statement was voluntary,
and not whether the conduct used in compelling the statement was
shocking.7 5 The Court has found unconstitutional compulsion for
sanctions such as discharge from employment,76 loss of eligibility to
contract with the state,77 removal from public office,?8 and even rela-
tively mild conduct such as refusing "to allow a suspect to call his wife
until he confessed. "79
B. The Penalty Concept

Under the penalty concept, courts require that once an individual
has invoked his Fifth Amendment privilege against self-incrimination,
a state may not attempt to coerce the individual to waive his privilege
by imposing substantial penalties without also granting immunity.80
Even if the penalties imposed do not actually compel an individual to
70. See id. at 479-80.

71. Id. at 480.
72. Id. at 480-81.
73. 431 U.S. 181 (1977).
74. Id. at 187.
75. Malloy v. Hogan, 378 U.S. 1, 7 (1964).
76. See Garrity v. New Jersey, 385 U.S. 493, 497-500 (1967) (holding that giving the peti-
tioners a choice between job forfeiture and self-incrimination was coercive).
77. See Lefkowitz v. Turley, 414 U.S. 70, 82-83, 85 (1973) (holding that threatening loss of
eligibility to contract was compelling, and that the State may not impose such a penalty without
also granting immunity).
78. See Lefkowitz v. Cunningham, 431 U.S. 801, 807 (1977) (holding that the threat of re-
moval from political office was inherently coercive).
79. See Malloy, 378 U.S. at 7 (citing Haynes v. Washington, 373 U.S. 503, 504, 514 (1963)).
The Haynes Court found that disallowing the defendant to make a phone call to his wife, or
anyone else, until he cooperated with the police by signing a confession was coercive. Haynes,
373 U.S. at 504. 514. The Court has also recognized that a custodial setting produced "inherently
compelling pressures [that] work to undermine the individual's will to resist and to compel him
to speak where he would not otherwise do so freely." Miranda v. Arizona, 384 U.S. 436, 467
(1966). An individual is in a custodial setting when he is being questioned/interrogated by the
police while in police custody. See id. at 461. As a result of the inherent compUlsion, the Court
has required that "Miranda Rights" be given prior to questioning in any setting deemed custo-
dial. Id. at 467. The "Miranda Rights" are a list of four rights created through case law pursuant
to the privilege against self-incrimination, which are 1) "the right to remain silent," 2) "that
anything said can and will be used against the individual in court," 3) "the right to have counsel
present at the interrogation," and 4) that if the individual cannot afford counsel, "a lawyer will
be appointed to represent him." Id. at 467-68, 469, 471, 473.
80. See Cunningham, 431 U.S. at 806.
waive his right to silence, a state will still be barred from enforcing the
penalties81 without also granting use immunity.82 For example, in
Gardner v. Broderick,83 an officer was discharged from his employ-
ment because he refused to make incriminating statements without
receiving use immunity.84 In Gardner, the United States Supreme
Court held that "regardless of its ultimate effectiveness," the State
could not attempt to coerce a police officer to waive his privilege
against self-incrimination by discharging the officer from employ-
ment. 85 Ultimately, a state can impose substantial penalties in an at-
tempt to coerce a waiver of an individual's privilege against self-
incrimination, but only if the state also grants use immunity.86
In the so-called "penalty cases,"87 the United States Supreme
Court distinguished penalties that were automatically imposed solely
because an individual refused to waive his rights from penalties that
were merely a factor in an individual's decision to exercise his privi-
lege against self-incrimination. 88 For instance, in Baxter v. Palmigi-
ano,89 an inmate faced charges of disturbance and disruption of prison
operations that could have incited a riot.90 The inmate was informed
that he had the right to remain silent during his disciplinary hearing,
but that his silence could be used against him by the Disciplinary
Board in deciding his guilt. 91 In Baxter, the United States Supreme
Court found that the inmate would not automatically be found guilty
as a direct result of his choice to remain silent. 92 Therefore, Baxter
was distinguishable from past cases where the Court held that penal-
ties imposed for invoking the right to silence violated the Fifth
Amendment. 93
81. Cf Minnesota v. Murphy, 465 U.S. 420, 434 (]984).

82. See Cunningham, 431 U.S. at 806, 809; see also Kastigar v. United States, 406 U.S. 441.
444-47 (1972).
83. 392 U.S. 273 (1968).
84. See id. at 278.
85. See id. at 278-79.
86. See Cunningham, 431 U.S. at 809.
87. See generally Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998); Minnesota v.
Murphy, 465 U.S. 420 (1984); Cunningham, 431 U.S. 80]; Baxter v. Palmigiano, 425 U.S. 308
(1976); Lefkowitz v. Turley, 414 U.S. 70 (1973); Gardner v. Broderick, 392 U.S. 273 (1968); Gar-
rity v. New Jersey, 385 U.S. 493 (1967).
88. See Baxter, 425 U.S. at 317-18.
89. 425 U.S. 308.
90. /d. at 312.
91. See id.
92. See id. at 317-18.
93. See id.
2003] Comment 733
In other "penalty cases," such as Garrity v. New Jersey94 and Lef-

kowitz v. Turley,95 the penalties were automatic when a state termi-
nated an individual's eligibility to contract and right to employment
solely because the individual refused to waive his privilege against
self-incrimination. 96 In both Garrity and Turley, the penalties were
imposed as a direct result of remaining silent, unlike Baxter in which
there was merely a risk that the penalties would OCCUr. 97
The United States Supreme Court recognized this distinction in
more recent "penalty cases" such as Minnesota v. Murphy 9s and Ohio
Adult Parole Authority v. Woodard. 99 In Murphy, during a meeting
with his probation officer, Murphy admitted that he had raped and
murdered someone. IOO Murphy was charged with first-degree murder
based on these statements. 101 Murphy claimed that his statements
about murder and rape were compelled because he feared that the
state would revoke his probation if he refused to disclose the informa-
tion to his probation officer. lo2 The Murphy Court recognized that if
the revocation of Murphy's probation had been specifically condi-
tioned upon whether or not he invoked his Fifth Amendment privi-
lege against self-incrimination, the case would have presented a
"classic penalty situation."l03 However, the conditions of Murphy's
probation proscribed "nothing about his freedom to decline to answer
particular questions and certainly contained no suggestion that his
probation was conditional on his waiving his Fifth Amendment privi-
lege."104 Further, the Court noted that determining revocation re-
quired examination of several factors and, therefore, was not
automatic. 105
In Woodard, an inmate who was sentenced to death was informed
that he had the right to an interview prior to his clemency hearing. 106
The inmate declined the interview, claiming that the State's clemency
94. 385 U.s. 493 (1967). In Garrity, the United States Supreme Court did not actually ad-
dress whether the loss of employment was "automatic." See generally id. It was the Court in
Baxter that pointed out that the penalties imposed in Garrity were automatic. See Baxter, 425
U.S. at 316-17, 318.
95. 414 U.S. 70 (1973). The Turley Court did not actually address whether the threat of loss
of eligibility to contract was "automatic." See generally id. The Baxter Court, however, pointed
out that the penalties imposed in Turley were automatic. See Baxter, 425 U.S. at 316-17, 318.
96. See Baxter, 425 U.S. at 316-17, 318 (citing Turley, 414 U.S. 70; Garrity, 385 U.S. 493).
97. See id. at 317-18.
98. 465 U.S. 420 (1984).
99. 523 U.S. 272 (1998).
100. Murphy, 465 U.S. at 424.
101. See id. at 425.
102. See id. at 434.
103. Id. at 435.
104. Id. at 437.
105. Id. at 438. At a hearing, "the court must find that he violated a specific condition, that
the violation was intentional or inexcusable, and that the need for confinement outweighs the
policies favoring probation," Id.
106. Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 277 (1998).
procedures violated his Fifth Amendment privilege against self-in-

crimination. 107 The inmate explained that he would be forced to an-
swer questions at his clemency interview with incriminating answers,
and if he chose to remain silent, his silence could be construed against
him.IOR Consequently, the inmate claimed that exercising his right to
remain silent forced him to give up his right to pursue clemency.l(J') In
Woodard, the United States Supreme Court held that because the in-
terview was voluntary, and not compelled, the inmate's Fifth Amend-
ment privilege against self-incrimination was not violated. IID
Although the Court did not expressly examine whether the inmate
faced automatic penalties, the Court recognized that the consequences
for remaining silent were not compelling. I II The Court stated that the
consequences would have created merely a risk of damage to the in-
mate's clemency case. 1l2 Like Woodard, the Baxter Court reasoned
that the consequences were not automatically imposed, but rather
merely created a risk of damage to the inmate's disciplinary
hearing. I13
C. Constitutional Rights in the Prison Context

Although "diminished by the needs and exigencies of the [prison]
environment," inmates retain many of their constitutional rights. 114
The United States Supreme Court has recognized that inmates retain
the right to religious freedom, the right of access to the courts, the
right of equal protection from racial discrimination, the right to due
process,115 the right to marriage,II6 and the privilege against self-
incrimination. 1 17
Although the Court has recognized that inmates hold several con-
stitutional rights, whether those rights have actually been burdened is
often a disputed issue. For instance, in Sandin v. Conner, II R prison
inmate Conner was charged with misconduct, which warranted thirty-
107. Jd. In Woodard, the inmate also brought a claim under the Due Process Clause. See id.
at 277. The inmate claimed that he had a protected liberty interest created by Ohio's
"mandatory clemency application and review procedures." Jd. at 282. The Court found that
Ohio's clemency proceedings did not impose "atypical and significant hardships on the inmate in
relation to the ordinary incidents of prison life" in its conclusion that there was "no substantive
expectation of clemency." Jd. at 283.
108. /d. at 285.
109. Jd. at 285-86.
110. See id. at 286-88.
111. See id.
112. See id.
113. Baxter v. Palmigiano, 425 U.S. 308, 317-18 (1976).
114. See Wolff v. McDonnell, 418 U.S. 539,555-56 (1974).
115. See id. at 556 (citing Cruz v. Beto, 405 U.S. 319 (1972); Younger v. Gilmore, 404 U.S. 15
(1971); Lee v. Washington, 390 U.S. 333 (1968)).
116. Turner v. Safley, 482 U.S. 78, 99-100 (1987).
117. Baxter, 425 U.S. at 316.
118. 515 U.S. 472 (1995).
2003] Comment 735
eight days of disciplinary segregation. 119 The State denied Conner's

request to present witnesses at his disciplinary hearing and found him
guilty of misconduct. 120 Conner claimed that the State burdened his
right to due process in violation of the Fourteenth Amendment by
disallowing him to present witnesses. 121 The Court recognized that an
inmate held protected liberty interests pursuant to the Due Process
Clause and state statute. 122 However, the Court noted that a state-
created liberty interest was implicated only when "atypical and signifi-
cant hardship[s] [were imposed] on the inmate in relation to the ordi-
nary incidents of prison life."123 The Court found that the disciplinary
segregation was within the range of normal confinement and not an
"atypical and significant" deprivation. 124 Consequently, it did not
burden a state-created liberty interest. 125
If an inmate establishes that his constitutional rights have in fact
been burdened, courts must then determine whether or not the bur-
den was justified. Generally, when the constitutional rights of a free
citizen are burdened by government action, the burden can only be
justified if it passes a standard of strict scrutiny.126 However, the
United States Supreme Court has held that, in light of the demands
placed on prison officials to properly run a prison, a lesser standard
should be applied in the prison context.127 In Turner v. Safley,128 the
Court held that "when a prison regulation impinges on inmates' con-
stitutional rights, the regulation is valid if it is reasonably related to
legitimate penological interests. "129 The Turner Court set forth four
factors that should be considered when examining whether a prison
regulation is valid. 130 First, there must have been a "rational connec-
tion between the prison regulation and the legitimate governmental
interest." 131 If the regulation was arbitrary or irrational, it was not
rationally connected and should not be upheld. 132 The second factor
was whether the inmates had "alternative means of exercising the
119. See id. at 475-76.

120. [d.
121. See id. at 476.
122. See id. at 483-84.
123. See id. at 484.
124. See id. at 486-87.
125. See id.
126. See Adarand Constructors v. Pena, 515 U.S. 200, 227 (1995): Zablocki v. Redhail, 434
U.S. 374, 386, 388 (1978). The strict scrutiny standard requires that government burdens on
constitutional rights be narrowly tailored to "further compelling governmental interests." See
Adarand, 515 U.S. at 227.
127. Turner v. Safley, 482 U.S. 78, 89 (1987).
128. See generally id.
129. [d. at 89.
130. [d. at 89-91.
131. [d. at 89 (quoting Block v. Rutherford, 468 U.S. 576, 586 (1984) (internal quotes
omitted».
132. See id. at 89-90.
right."133 The Court also considered whether accommodating the in-

mate's constitutional rights would have an impact "on guards and
other inmates, and the allocation of prison resources generally."134
The final factor was whether there were ready alternatives. 135 As to
the final factor, the Court noted that if there was "an alternative that
fully accommodate[d] the prisoner's rights at [minimal] cost to valid
penological interests, a court may consider that as evidence that the
regulation [did] not satisfy the reasonable relationship standard." 136
In Turner, inmates claimed that the prison's correspondence and
marriage regulations burdened their First Amendment right to free
speech and their right to marriage under the Due Process Clause. 137
The correspondence regulations granted permission for inmate-to-in-
mate correspondence based on an inmate's prison file, rather than ac-
tual inspection of the mail that the inmate desired to send.13S The
prison's marriage regulations "permit[ted] an inmate to marry only
with the permission of the superintendent of the prison."139 Permis-
sion was granted only under compelling circumstances such as preg-
nancy or child-birth.140 After applying the four factors to both of the
inmates' claims, the Turner Court upheld the regulations on corre-
spondence and struck down the regulations on marriage. 141
As to the correspondence regulations, the Court found that the
regulations were "logically connected to [the prison's] legitimate se-
curity concerns" because communication between inmates, which in-
cluded a great number of gang members, created a danger of
"coordinated criminal activity."142 Further, the inmates still had
means for exercising their expression, as only a few select inmates
would have been barred from correspondence based on security con-
cerns.143 The Court also reasoned that the impact on other inmates
and prison guards would be substantial because allowing the corre-
spondence would decrease "liberty and safety for everyone."144 Fi-
nally, the Court recognized that the alternative suggested by the
inmates, to inspect each piece of inmate-to-inmate mail, would be too
133. Id. at 90.

134. Id.
135. Id.
136. Id. at 91.
137. See id. at 8l.
138. See id. at 82.
139. See id.
140. See id.
141. Id. at 91.
142. Id. at 91-92.
143. Id. at 92.
144. See id.
2003] Comment 737
difficult for prison officials. 145 Consequently, at significant cost to

prison security, dangerous messages would be missed. 146
As to the marriage regulations, the Court first addressed the
State's claim that the regulations did not actually burden the inmates'
constitutional rights. 147 The State conceded that marriage was a fun-
damental right, but argued that the right should not apply in the
prison context. 148 After concluding that the right to marriage was in-
deed protected in the prison context,149 the Court then addressed the
validity of the marriage regulation. The Court found that the regula-
tion was not rationally connected to the prison's penological objec-
tives and, therefore, was not valid. I50
The prison officials in Turner claimed that the marriage regula-
tions were imposed for security and rehabilitation purposes.1 51 Al-
though the Court recognized that security was a legitimate concern
that justified reasonable restrictions, it found that disallowing mar-
riage, unless there were compelling circumstances such as pregnancy
or birth, was an exaggerated response and not justified. 152 The Court
also found that the marriage regulation was much broader than re-
quired to serve the prison's rehabilitative goals. 153 Prison officials ex-
plained that prohibiting marriage furthered the rehabilitation goals of
female inmates in becoming self-reliant and less "dependent on male
figures."154 The Court found that the regulation was over-broad be-
cause it not only prohibited female inmates from marrying, but also
prohibited any marriage involving an inmate, regardless of gender. 155
The Court was not convinced that inmate marriages would have any
significant impact on the security of other inmates and prison guards,
especially in instances of marriage between inmates and civilians. 156
Finally, the Court found that there were ready alternatives to the mar-
riage regulation that would create minimal cost to the prison, such as
barring marriage only when the marriage would create a threat to
security. 157
Since Turner, the United States Supreme Court has consistently
held that prison regulations that burden an inmate's constitutional
rights are justified only if the regulation is "reasonably related to legit-
145. See id. at 93.

146. See id.
147. See id. at 94-95.
148. See id. at 95.
149. See id. at 96.
150. See id. at 97.
151. See id.
152. See id. at 97-98.
153. See id. at 98.
154. See id. at 97.
155. See id. at 98-99.
156. See id. at 98.
157. See id.
imate penological interests," and that the Turner factors should be

considered in that determination. 15s
D. Fifth Amendment Privilege Against Self-Incrimination in the

Prison Setting
The United States Supreme Court has recognized that inmates
retain the Fifth Amendment privilege against self-incrimination. 159
The Court has also recognized that inmates are entitled to immunity
under the "penalty concept," when penalties are imposed in an at-
tempt to coerce an inmate to waive his right to silence. 16o
Since Turner, the only case in which the privilege against self-
incrimination was at issue in the prison context was Woodard. 161
However, the Court, in Woodard, did not have occasion to apply the
Turner standard or factors because the Court determined that the in-
mate's privilege against self-incrimination was not even implicated be-
cause his statements were not compelled. 162
To summarize, it has been well established by the United States
Supreme Court that inmates retain many constitutional rights, includ-
ing the privilege against self-incrimination. 163 The privilege against
self-incrimination is implicated when a state compels an individual to
make incriminating statements without also granting use immunity.l64
In Turner, the Court recognized that an inmate's constitutional rights
may be burdened only when the burden is "reasonably related to le-
gitimate penological interests."165 Further, irrational and arbitrary
burdens should not be upheld where there are ready alternatives that
serve the inmate's rights at minimal COSt. 166
IV. ANALYSIS
The first issue addressed in McKune v. Lile was whether Kansas'

prison regulations regarding the treatment of sex offenders were com-
pelling and, therefore, burdened an inmate's Fifth Amendment privi-
lege against self-incrimination. 167 The second issue addressed was
158. See Shaw v. Murphy, 532 U.S. 223, 229-30 (2001) (setting out the Turner standard and
factors as the appropriate constitutional test in the prison setting); Washington v. Harper, 494
U.S. 210, 223-26 (1990) (holding that the lower court erred in failing to apply the Turner stan-
dard to uphold regulations that allowed the administration of drugs to mentally ill inmates);
Thornburgh v. Abbott, 490 U.S. 401, 414-18 (1989) (using Turner's reasonable standard and four
factors to analyze prison regulations that burdened inmates' First Amendment rights).
159. See Baxter v. Palmigiano, 425 U.S. 308, 316 (1976).
160. See supra notes 89-93, 106-13 and accompanying text.
161. See generally Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998).
162. See supra notes 11 0-13 and accompanying text.
163. See supra notes 114-17 and accompanying text.
167. See McKune v. Lile, 122 S. Ct. 2017, 2025-26 (2002).
2003] Comment 739
whether the burden on the inmate's constitutional right was rationally

related to a legitimate penological interest and, thus, justified. 168
A. Parties' Arguments
1. Robert G. Lile
Lile argued that under Fifth Amendment case law, the State's
conduct of removing his privileges and transferring him to maximum-
security qualified as unconstitutional compulsion. 169 Lile pointed out
that compulsion was no longer limited to extreme penalties such as
imprisonment and economic sanctions. 170
He also claimed that his case was distinguishable from past Fifth
Amendment cases where the Court had found no compulsion. l7l Lile
distinguished Woodard by pointing out that the State attempted to
coerce him by imposing penalties; whereas the State in Woodard of-
fered inmates benefits. 172 He also distinguished his case from Baxter
by asserting that his penalties resulted automatically and solely be-
cause he refused to waive his privilege. 173 Lile pointed out that in
Baxter, there was merely a risk of penalty.174
Lile contended that the United States Supreme Court had clearly
advised that the rational relation standard set forth in Turner should
be applied" 'to all circumstances in which the needs of prison adminis-
tration implicate constitutional rights."'175 In determining whether
the prison's regulations were rationally related to legitimate penologi-
cal interests, Lile applied the Turner factors.176
Lile conceded that the SATP served a legitimate state interest. 177
However, he argued that 1) he had no other avenues for exercising his
Fifth Amendment right, 2) accommodating his Fifth Amendment right
would have had little impact on the State, and 3) "there [were] worka-
ble alternatives for the State to consider."178 As to workable alterna-
tives, Lile proposed that the State could either offer immunity to
168. See id. at 2026.

169. See Respondent's Brief at 14-16, 20-26, 30-31, McKune (No. 00-1187).
170. See id. at 30. Unconstitutional compulsion can arise under more benign circumstances
such as "'[t]he threat of disbarment and the loss of professional standing, professional reputa-
tion, and of livelihood.''' See id. at 31 (quoting Spevack v. Klein, 385 U.S. 511,516 (1967)).
171. See id. at 21-26.
172. See id. at 21. Lile also distinguished his case from Minnesota v. Murphy by pointing out
that Murphy had never invoked his right to silence while Lile had clearly invoked his right to
silence. See id. 22-23. Lile also noted that the Federal Bureau of Prisons' program granted
benefits rather than imposing penalties, and therefore did not constitute compulsion like the
SATP. See id. at 41 n.23.
173. See id. at 23-24 (citing Baxter v. Palmigiano, 425 U.S. 308 (1976)).
174. See id. at 23.
175. See id. at 32 (quoting Washington v. Harper, 494 U.S. 210, 223-24 (1990)).
176. See id. at 34-38; see also supra notes 130-36 and accompanying text.
178. See id. at 34-37.
program participants or make the program truly voluntary by granting

benefits for participating in the program rather than penalties for not
participating. 179
2. The State's Arguments

The State argued that removing Lile's privileges and transferring
him to maximum-security did not qualify as compelling. 180 It con-
tended that the sanctions were not" 'atypical' and 'significant' hard-
ships on the inmate in relation to the ordinary incidents of prison
life. "181
The State claimed that Lile's case should not be evaluated under
the "penalty cases" because those cases had questionable historical
basis. 182 Further, the State argued that, even when examined in light
of the "penalty cases," the sanctions that Lile faced did not qualify as
compelling. 183 It reasoned that the penalties imposed on Lile were
not nearly as severe as the penalties at issue in Woodard, Murphy, and
Baxter, where the Court had found no unconstitutional compulsion. l84
Next, the State contended that Lile's method for evaluating com-
pulsion failed to appreciate the significance of the prison setting. ISS It
explained that according to Lile's assertions, the prison context should
be considered after a court has first determined whether unconstitu-
tional compulsion is actually present.l 86 The State claimed this con-
clusion was a misinterpretation of Turner.I 87 According to the State,
Turner merely stood for the proposition that inmates had diminished
constitutional rights that were not violated if the prison regulations
were rationally related to a legitimate penological interest. 188 Finally,
the State argued that the Turner standard, even if applied, weighed in
favor of the State because rehabilitation was a legitimate penological
interest, and SATP was an effective program in rehabilitating sex
offenders. 189
179. See id. at 37-39.

180. See Petitioner's Brief at 23, McKune (No. 00-1187).
181. Id. at 15 (citing Sandin v. Conner, 515 U.S. 472,484 (1995».
182. See id. at 20. The State argued that historically the scope of compulsion has been inter-
preted narrowly. Id. at 30.
183. Cf id. at 23-26 (citing Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998); Min-
nesota v. Murphy, 465 U.S. 420 (1984); Baxter v. Palmigiano, 425 U.S. 308 (1976) (citing Lefko-
witz v. Turley, 414 U.S. 70 (1973); Garrity v. New Jersey, 385 U.S. 493 (1967»).
184. See id. at 23-26 (citing Woodard, 523 U.S. at 286 (holding that compulsion was not
present when inmate faced possible loss of life); Murphy, 465 U.S. at 439 (holding that compul-
sion was not present when inmate feared parole revocation); Baxter, 425 U.S. at 318 (holding
that compulsion was not present when inmate faced possible risk of damage to his disciplinary
hearing case».
185. See id. at 33-34.
186. Cf id. at 37-38.
187. See id. at 38.
188. See id.
189. See id. at 38-40.
2003] Comment 741
B. Plurality Opinion
The United States Supreme Court upheld Kansas' regulations re-
garding SATP participation. In an opinion delivered by Justice
Anthony Kennedy, the plurality found that the regulations were not
compelling and, therefore, did not implicate Lile's privilege against
self-incrimination.1 90 Additionally, the plurality found that the SATP
was rationally related to the State's legitimate interest of "reducing
the serious danger that repeat sex offenders pose to many innocent
persons." 191
The plurality reasoned that the program was not invalid simply
because it did not offer immunity. 192 Further, denying immunity
served two legitimate interests. 193 First, it forced the participants to
take full responsibility for past actions and accept the consequences of
those actions. 194 The plurality was convinced that taking responsibil-
ity was an important step in successful rehabilitation. 195 Second, al-
though Kansas had never prosecuted a program participant based on
statements made in the SATP, the State wanted to keep "open the
option to prosecute a particularly dangerous sex offender."l96 The
plurality noted that if the participating inmates were granted immu-
nity, they would be "given a windfall for past bad conduct," which
would undermine the "dominant goal of acceptance of responsibil-
ity."197 Further, allowing Lile to prevail would have put in question
the constitutionality of the federal sex offender treatment program be-
cause it also denied use immunity.198
The plurality explained that although the liberty interest standard
used in Sandin "may not provide a precise parallel for determining
whether there is compelled self-incrimination, ... it does provide use-
ful instruction."199 The plurality also explained that the need for
prison officials to limit an inmate's privileges in order to administer
the prison effectively was a significant consideration. 20o
The plurality found that transferring Lile from medium to maxi-
mum-security was not a penalty, but rather the transfer was incidental
to the State's penological objectives. 20l Because space was limited in
the medium-security unit, non-participants had to be moved to maxi-
190. See McKune, 122 S. Ct. at 2022, 2026.

191. See id. at 2032.
192. ld. at 2025.
193. Id.
194. Id.
195. Id.
196. Id.
197. Id. at 2032.
198. See id. at 2031.
199. Id. at 2026-27.
200. See id. at 2026.
201. See id. at 2027.
mum-security to provide room for inmates who agreed to participate

in the SATP.202 The plurality also found that the removal of Lile's
privileges did not constitute compulsion, as significant restrictions
were "inherent in prison life."203
The plurality recognized that penalties must be automatic to con-
stitute compulsion. 204 However, although the penalties imposed in
Woodard, Murphy, and Baxter, were not automatic, the Court looked
to those cases in evaluating the severity of automatic penalties faced
by Lile.205
C. Concurring Opinion
In her concurring opinion,206 Justice Sandra Day O'Connor noted
that the "atypical and significant hardship" standard was misapplied
by the plurality.207 However, she did not think that the sanctions im-
posed in Lile's case rose to the level of compulsion.208 Justice
O'Connor came to her conclusion after comparing Lile's sanctions to
those held to be compelling in the "penalty cases. "209 She also noted
that penalties such as "longer incarceration and execution - are far
greater than those [that the Court had] already held to constitute un-
constitutional compulsion."210 Consequently, the imposition of those
penalties for refusing to waive the privilege against self-incrimination
"would surely implicate a 'liberty interest."'211
D. Dissenting Opinion
In his dissenting opinion, Justice John Paul Stevens pointed out
that the sanctions were in fact compelling. 212 He further found that
the regulations created an unjustified burden on an inmate's constitu-
tional rights because there were effective alternatives to the SATP.213
Justice Stevens noted that it took Lile six years to earn his privi-
leges and medium-level status. 214 Further, the sanctions imposed on
Lile were the same as those imposed on inmates who committed a
202. See id.

203. See id. at 2028.
204. See id. at 2030.
205. See id. The Court was also not convinced that a principled distinction could have been
made as to whether consequences were beneficial or punitive, and therefore, Lile was mistaken
for relying on the distinction. See id. at 2031.
206. Justice O'Connor was the fifth vote in the 5-4 decision. See id. at 2032 (O'Connor, J.,
concurring).
207. See id. (O'Connor, J., concurring).
208. Id. at 2034 (O'Connor, J., concurring).
209. Id. at 2033-34 (O'Connor, J., concurring).
210. Id. at 2034 (O'Connor, J., concurring).
211. Id. at 2034-35 (O'Connor J., concurring).
212. Id. at 2040 (Stevens, J., dissenting).
213. See id. at 2043 (Stevens, J., dissenting).
2003] Comment 743
felony while in prison. 2ls He further argued that the Fifth Amend-
ment confers a liberty interest itself, and therefore, it was unnecessary
to show deprivation of a separate liberty interest for protection from
compulsion under the Fifth Amendment. 216 He also noted that there
had been no suggestion in the Court's past decisions "that compulsion
should have a different meaning in the prison context."217
Justice Stevens believed that Lile's case was distinguishable from
Woodard, Baxter, and Murphy because those cases involved "conjec-
ture and speculation about the indirect consequences that may flow
from a decision to remain silent."218 He pointed out that the sanctions
imposed in Lile's case automatically followed when Lile invoked his
right to silence. 219
Finally, Justice Stevens determined that because there were obvi-
ous effective alternatives to the SATP, the program's burden on the
inmates' rights were not justified.220 He recognized that one obvious
alternative was that the State could grant use immunity.221 He also
pointed out that the State had not offered any evidence that granting
immunity would damage the program's therapeutic goals. 222 A sec-
ond obvious alternative noted by Justice Stevens was to offer a volun-
tary program. 223 He explained that Kansas could pattern the SATP
after the federal sex offender treatment program where the inmates
received benefits for participation rather than penalties for non-par-
ticipation. 224 He found the benefit-penalty distinction significant.2 25
E. Commentary
In McKune v. Lile, the United States Supreme Court incorrectly
held that Kansas' prison regulations regarding the SATP did not con-
stitute compulsion and were rationally related to a legitimate peno-
logical objective. In its analysis, the Court ignored precedent,
misapplied established standards, and encouraged states to implement
sex-offender treatment programs of which the costs outweigh the ben-
efits. Moreover, the Court failed to address penalties such as denial of
eligibility for parole and good-time credits.226 Failing to address these
215. See id. (Stevens, 1., dissenting).

216. See id. at 2037-38 (Stevens, 1., dissenting).
217. Id. at 2038 (Stevens, 1., dissenting).
219. See id. at 2040 (Stevens, 1., dissenting).
221. Id. at 2043 (Stevens, 1., dissenting).
222. See id. at 2044 (Stevens, 1., dissenting).
223. See id. (Stevens, 1., dissenting).
224. See id. at 2044-45 (Stevens, J., dissenting).
225. See id. at 2041-42 (Stevens. J., dissenting).
226. See id. at 2027.
issues greatly limited the scope of its OpInIOn, leaving lower courts
with many unanswered questions.
1. Governing Case Law: Compulsion

The United States Supreme Court has clearly established that
states must grant use immunity for statements compelled after an indi-
vidual has asserted his privilege against self-incrimination. 227 Further,
the Court had no qualms in applying this principle, which was formal-
ized in cases often referred to as the "penalty cases," to the prison
context in Baxter. 228
In the "penalty cases," Woodard, Murphy, and Baxter, the Court
examined whether the penalties at issue qualified as compulsion. 229
The Court found that the penalties at issue did not constitute compul-
sion in those cases because the penalties were merely speculative and
did not automatically follow the individual's refusal to waive his right
to silence.23o Although the Court in McKune v. Lile recognized that
the penalties faced by Lile were automatic, the Court still compared
the severity of the penalties Lile faced to the penalties imposed in
Woodard, Murphy, and Baxter. 231 This comparison was erroneous be-
cause the Court in Woodard, Murphy, and Baxter never actually
reached an analysis of severity.232 In those cases, the Court's analysis
was cut short once it had determined that the penalties were not auto-
matic. 233 For example, in Baxter, the inmate feared serving thirty days
in punitive segregation and a classification downgrade. 234 The sever-
ity of this punishment was never analyzed because the Court deter-
mined that the penalty was not automatic. 235
In McKune, the Court should have compared the penalties faced
by Lile to cases where compelling penalties were imposed automati-
cally such as Garrity, Turley, Cunningham, and Malloy.236 If the
Court had looked to these governing cases, it would likely have found
that the penalties imposed upon Lile qualified as compelling.
Inmates that refuse to waive their right to silence under Kansas'
prison regulations face harsher penalties than the Court has found
227. Supra notes 80-86 and accompanying text.

228. See Baxter v. Palmigiano. 425 U.S. 308, 316 (1976); see also supra notes 89-93 and ac-
companying text.
229. See generally Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998); Minnesota v.
Murphy, 465 U.S. 420 (1984); Baxter, 425 U.S. 308.
230. See Murphy, 465 U.S. at 438-39; Baxter, 425 U.S. at 317-18; cf Woodard, 523 U.S. at
286,288.
231. Cf McKune, 122 S. Ct. at 2029-30.
232. See generally Woodard, 523 U.S. 272; Murphy, 465 U.S. 420: Baxter, 425 U.S. 308.
233. See generally Murphy, 465 U.S. 420; Baxter, 425 U.S. 308: cf. Woodard, 523 U.S. 272.
234. See Baxter, 425 U.S. at 313.
235. See id. at 317.
236. See supra notes 76-79, 94-97 and accompanying text.
2003] Comment 745
compelling in the past. Sanctions such as removing all of an inmate's

privileges are so severe in a prison setting that the sanctions are ordi-
narily imposed when an inmate commits "theft, arson, assault, battery,
or an aggravated sexual act" during his incarceration. 237 Further, the
threat of transferring an inmate from a medium-security unit to a
maximum-security unit is compelling because violence and danger are
more likely to occur in maximum-security units. 238 Consequently, an
inmate's movement is totally controlled. 239 The Court failed to recog-
nize just how dangerous and restrictive maximum-security units are.
The most dangerous offenders are concentrated in maximum se-
curity.240 Generally, maximum-security prisons "are characterized by
high walls ... , gun towers," and prison inmates are locked in their
cells when not eating or working. 241 Despite all the inmate regula-
tions, violence is still prevalent in maximum security.242 Beyond the
concentration of violent inmates, scholars also suggest that placing an
inmate in such a dangerous environment may "set off something of a
'self-fulfilling prophesy,''' which may actually heighten violence. 243
The plurality found that the transfer to maximum security was
not a penalty because it was merely incidental to the State's interest in
creating room for inmates that agreed to participate in the SATP.244
This reasoning is illogical. Lile was allowed to live in the medium-
security unit for five years as a non-participant of the SATP.245 If the
State had actually been short of bed space for the SATP participants,
Lile would not have been allowed to stay at the facility for such a long
time before being "incidentally" transferred.
2. Atypical and Significant Hardships in Relation to Ordinary

Incidents of Prison Life: Compulsion
The "atypical" standard set forth in Sandin was misapplied in
McKune. In Sandin, the issue was whether or not an inmate had a
liberty interest protected by the Due Process Clause. 246 The Sandin
Court applied the "atypical" standard in an attempt to corral case law
that had strayed from the original principles of the Due Process
237. See Respondent's Brief at 3, McKune v. Lile, 122 S. Ct. 2017 (2002) (No. 00-1187).
238. See id. at 5. The State admitted that violence and danger are more likely to occur in
maximum-security units. Jd.
239. See Jess Maghan, Long-term and Dangerous Inmates: Maximum Security Incarceration
in the United States 5 (Great Cities Institute Working Paper, Dec. 1996), http://www.uic.edu/
cuppa/gci/publications/working%20papers/pdf/Long%20term%20inmates.pdf.
240. See id.
241. See id.
242. See id.
243. See id.
244. See McKune v. Lile, 122 S. Ct. 2017, 2027 (2002).
246. See generally Sandin v. Conner, 515 U.S. 472 (1995).
Clause. 247 The unwieldy case law involved liberty interests created
through state statute rather than traditional liberty interests conferred
by the Due Process Clause. 248 The Sandin decision clearly involved
state-created liberty interests,249 which bear no relation to the Fifth
Amendment and the evaluation of compulsion. As Justice Stevens
pointed out in his dissent, the Court had never before required a sepa-
rate liberty interest for protection under the Fifth Amendment privi-
lege against self-incrimination.250 Furthermore, the Court had the
opportunity, but chose not to apply the "atypical" standard to a Fifth
Amendment issue in the prison context in Woodard. 251 In Woodard,
the Court examined both a due process claim and a Fifth Amendment
privilege against self-incrimination claim.252 Although the Court ap-
plied the "atypical" standard in its analysis of the due process claim,
the Court chose not to apply it to the Fifth Amendment claim.253
Logically, the Court instead looked to Fifth Amendment case law for
guidance in addressing the Fifth Amendment claim. 254
The plurality's misapplication of the "atypical" due process stan-
dard contributed to its erroneous conclusion that the penalties did not
constitute compulsion. 255 Consequently, the plurality's analysis of the
constitutionality of the SATP was cut short. Additionally, misapply-
ing the "atypical" standard undermined the principle of precedents
and encouraged lower courts to do the same.
3. Impact of the Court's Limited Decision: Compulsion

The plurality noted that Lile's refusal to waive his privilege
against self-incrimination would not "affect his eligibility for good-
time credits or parole."256 However, Lile escaped these severe sanc-
tions only because he was convicted prior to 1995.257 Kansas Statutes
sections 75-5210a and 22-3717(g) condition parole for sex offenders
247. Id. at 483-84. The Court

recognize[d] that States may under certain circumstances create liberty interests which
are protected by the Due Process Clause .... But these interests will be generally
limited to freedom from restraint which, while not exceeding the sentence in such an
unexpected manner as to give rise to protection by the Due Process Clause of its own
force, ... nonetheless imposes atypical and significant hardship on the inmate in rela-
tion to the ordinary incidents of prison life.
Id.
248. See id. at 477-83.
249. See id.; see also Mark Adam MerolIi, Comment, Sandin v. Conner's "Atypical and Sig-
nificant Hardship" Signals the Demise of State-Created Liberty Interests for Prisoners, 15 ST.
LOUIS U. PUB. L. REV. 93, 111-12, 118, 120-21, 127 (1995).
250. McKune, 122 S. Ct. at 2037-38 (Stevens, J., dissenting).
251. See generally Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998).
252. See id. at 276.
253. See id.
254. See id. at 286-87.
255. See McKune, 122 S. Ct. at 2026.
256. Id. at 2027.
257. Lile I, 224 F.3d 1175, 1182 (2000). Lile was convicted in 1983. Id. at 1178.
2003] Comment 747
upon their successful completion of the SATP.25H Since Lile was con-
victed in 1983, his non-participation in the SATP did not affect his
eligibility for parole because those sections259 were not enacted until
1995 and "do not apply retroactively."260 Similarly, Kansas Adminis-
trative Regulations sections 44-6-124(g)(6) and 44-6-142 provide that
good-time credits will be withheld if inmates refuse to participate in
assigned programs. 261 Sections 44-6-124(g)(6) and 44-6-142 were also
enacted in 1995 and did not apply retroactively, and therefore, those
sections did not affect Lile's eligibility for good-time credits. 262
Although Lile was not affected by these severe sanctions, sex of-
fenders convicted in Kansas after 1995 will certainly be affected. By
failing to address the impact of these types of statutes, the Court lim-
ited its holding to exclude Fifth Amendment claims by sex offenders
who face loss of parole and good-time credit eligibility.263
It is probable that the United States Supreme Court would find
compulsion where a state denied parole and good-time credit eligibil-
ity. In McKune, the Court's decision was 5-4, and although Justice
O'Connor joined the plurality's decision, she did not join the opin-
ion. 264 In her concurring opinion, Justice O'Connor declined to join
the plurality's application of the "atypical" due process standard. 265
Justice O'Connor instead based her judgment on her findings that the
sanctions Lile faced did not rise to the level of compulsion. 266 Justice
O'Connor noted, however, that penalties such as "longer incarcera-
tion and execution" were far greater than penalties that the Court had
already found "to constitute unconstitutional compulsion. "267 Since
loss of parole and good-time credit eligibility directly affect the length
of an inmate's incarceration, Justice O'Connor would likely find
258. See id.

259. KAN. STAT. ANN. § 22-3717(g) (1995 & Supp. 2002); KAN. STAT. ANN. § 75-521Oa
(1997).
260. See Lile I, 224 F.3d at 1182.
261. See id.
262. See id.
263. The First Circuit has already recognized the limited scope of McKune in Ainsworth v.
Stanley, 317 F.3d 1,4 (1st Cir. 2002). In Ainsworth, the First Circuit Court of Appeals addressed
whether New Hampshire's sex-offender treatment program (SOP), which almost always denied
parole eligibility to non-participants, violated an inmate's privilege against self-incrimination.
Id. at 2-3. The Court of Appeals noted that
while the plurality apparently felt it noteworthy that a loss of parole was not at stake in
Kansas, whereas it is in this case, it is far from clear that the plurality would regard such
a consequence as constitutionally impermissible. Under these circumstances, in consid-
ering our earlier opinion in light of McKune as the remand requires, we have no clear
guideposts. Instead, we must resort to our own sound judgment, so long as it does not
conflict with existing precedent.
Id. at 4. The Court held that "reduced likelihood of parole for refusing to participate in the SOP
does not constitute a penalty sufficient to compel incriminating speech in violation of the Fifth
Amendment." Id. at 6.
264. Supra notes 56, 206-08.
265. McKune v. Lile, 122 S. Ct. 2017, 2032 (2002) (O'Connor, J., concurring).
266. Id. (O'Connnor, J., concurring).
267. See id. at 2034 (O'Connor, J., concurring).
"compulsion" if those penalties were at issue. Further, since Justice

O'Connor was the "swing vote" as to compulsion in McKune, the
Court would probably not uphold programs similar to the SATP in
future cases where loss of parole and good-time credit eligibility were
added to the stockpile of penalties. 268
4. The SATP Is Not Rationally Related to the State's

Legitimate Interest
In Turner, the Court confirmed that "when a prison regulation
impinges on inmates' constitutional rights, the regulation is valid if it
is reasonably related to legitimate penological interests."269 The Tur-
ner Court then set out several factors for courts to consider in deter-
mining whether a state's prison regulations were reasonable.270 The
Turner factors can be more conveniently summarized into two princi-
ples. First, the prison regulations cannot be upheld if they are arbi-
trary or irrational. 271 Second, the regulations are not reasonable
where there are ready alternatives that do not burden the inmates'
rights and have minimal cost to the penological objective. 272
In McKune, the plurality recognized Turner's "penological inter-
est" standard. 273 However, the Court mistakenly combined or con-
fused the "penological interest" standard with the "atypical" due
process standard274 and misapplied both in its compulsion analysis. It
is important to note that in Turner, the Court expressly stated that the
"penological interest" standard should be followed "when a prison
regulation impinges on inmates' constitutional rights."275 The Turner
Court did not apply the "penological interest" standard to determine
if the inmates' had protected constitutional rights. 276 Unfortunately,
the plurality's misapplication of the standards appeared to have a sig-
268. Kansas is not the only state with statutes that condition eligibility for probation, parole,
and/or good-time credits on participation in treatment programs. Connecticut, Louisiana, West
Virginia, Oregon, and Kentucky also have similar statutes. See Dawn J. Post, Current Public
Law and Policy Issues: Preventive Victimization: Assessing Future Dangerousness in Sexual
Predators for Purposes of Indeterminate Civil Commitment, 21 HAMLINE J. PUB. L. & POL'y 177,
246 n.67 (1999); see also Ky. REV. STAT. ANN. § 197.045(4) (Michie 1998 & Supp. 2001).
270. Supra notes 130-36 and accompanying text.
273. See McKune v. Lile, 122 S. Ct. 2017, 2026-27 (2002).
274. See id. The Court's combination or confusion of the two standards is observable in the
case's general rule:
[a1prison clinical rehabilitation program, which is acknowledged to bear a rational rela-
tion to a legitimate penological objective, does not violate the privilege against self-in-
crimination if the adverse consequences an inmate faces for not participating are
related to the program objectives and do not constitute mypicaland significant hard-
ships in relation to the ordinary incidents of prison life.
Id. at 2027 (emphasis added).
275. See Turner v. Safley, 482 U.S. 78, 89 (1987) (emphasis added).
276. Cf id.
2003] Comment 749
nificant impact on its erroneous conclusion that the penalties did not
constitute compulsion. 277
In McKune, the penalties faced by Lile constituted compulsion 278
and, therefore, burdened his constitutional rights. Consequently, the
Court should have thoroughly analyzed the reasonableness of the
prison regulations. In light of the Turner principles, the Court likely
would have found that Kansas' prison regulations regarding the SATP
were not rationally related to the State's penological interests.
As to the first Turner principle, rehabilitating prisoners to protect
innocent citizens and reduce recidivism is clearly a legitimate peno-
logical interest. However, the SATP is an arbitrary and irrationaP9
response to the State's interest and should not have been upheld. De-
nying immunity is an irrational response, as it actually undermines the
State's penological interests. The State claimed that it denied immu-
nity to keep open the option of prosecuting "particularly" dangerous
sex offenders. 28o The State further reasoned that accepting responsi-
bility for past crimes was key to successful treatment. 281 Unfortu-
nately, denying immunity actually decreases the possibility that the
State will prosecute "particularly" dangerous offenders and damages
therapeutic success. 282
The State actually excludes the "particularly" dangerous sex of-
fenders from the SATP by denying immunity. Kansas denies legal im-
munity for any statements made by inmates participating in the
SATP.283 Further, the SATP staff is required by law "to report any
uncharged sexual offenses involving minors to law enforcement au-
thorities."284 Because the average number of victims assaulted by
pedophiles range from 20 to 150,285 it is likely that these "particularly"
dangerous sex offenders have assaulted many victims before they are
finally caught and sentenced. It is unfortunately clear that a
pedophile who has assaulted numerous minors would refuse to partici-
pate in the SATP in order to avoid future prosecution for those
assaults.
Fear of future prosecution is not the only deterrent created by the
State's denial of use immunity. "Particularly" dangerous sex offend-
277. In its compulsion analysis, the Court gave significant weight to the State's legitimate
penological interests. McKune, 122 S. Ct. at 2026-28.
280. See McKune, 122 S. Ct. at 2025.
281. See id.
282. See infra notes 283-306 and accompanying text.
283. See McKune, 122 S. Ct. at 2025.
284. See id. at 2023.
285. See JANET I. WARREN, THE INSTITUTE OF LAW, PSYCHIATRY AND PUBLIC POLICY AT
THE UNIVERSITY OF VIRGINIA, THE EVALUATION AND TREATMENT OF SEX OFFENDERS: LAW,
RESEARCH AND CLINICAL PRACTICE 23 (2002), http://hsc.virginia.edu/med-ed/clinconnect/hand-
outs/9.20.02Evalandtreatoffenders.pdf.
ers are also deterred from participation for fear of civil commitment.
Kansas has enacted statutes286 that allow the State to commit sexually
violent predators after serving their prison sentences. 287 Communica-
tions arising out of an inmate's treatment are admitted as evidence in
civil-commitment procedures. 288
The "fear of civil commitment deterrent" is not just a theory, but
rather a frightening reality. In July, 2002, Paul Leahy brutally stabbed
a woman in a public bathroom in Bridgewater, Massachusetts. 289 The
event was tragic not only because an innocent woman was murdered,
but also because the murder might have been prevented. Leahy was a
violent, convicted sex offender with a long history of sexual miscon-
duct. 29() While serving time for his convictions, Leahy refused to par-
ticipate in Massachusetts' sex-offender treatment program. 291 After
the tragic murder, legislative director, Nancy Scannell, pointed out
that many sex offenders like Leahy choose not to participate in treat-
ment. 292 She explained that inmates decline to participate because
communications during treatment are not privileged and can be used
against them in civil-commitment hearings. 293
The State excludes the most dangerous sex offenders from treat-
ment because the inmates fear future prosecution and civil commit-
ment. Consequently, denying immunity to SATP participants is
allowing the most dangerous sex offenders to reenter society without
treatment. Furthermore, keeping "options open" has ultimately pro-
duced no results. Kansas admitted that it has never prosecuted an
inmate based on statements made in the SATP.294 It is logical to infer
that Kansas has never prosecuted a SATP participant because the
"particularly" dangerous offenders declined to participate in order to
avoid future prosecution and civil commitment.
The State's claim that granting immunity would undermine a crit-
ical step in successful therapy, which was accepting full responsibility
for past offenses,29s was unfounded. The State reasoned that "to ac-
cept full responsibility for past actions, [inmates] must accept the pro-
position that those actions carry [legal] consequences."296 As Justice
286. KAN. STAT. ANN. §§ 59-29aOl to -29a20 (1994 & Supp. 2002).
287. KAN. STAT. ANN. §§ 59-29aOl, -29a03(a)(I)-(4) (1994 & Supp. 2002).
288. KAN. STAT. ANN. §§ 59-29a16 to -29a17 (1994 & Supp. 2002).
289. David Weber et aI., Doc Predicted Leahy Would Attack Woman with Knife, BOSTON
HERALD, July 20, 2002, available at 2002 WL 4081609.
290. See id.
291. Id.
292. See id.
293. Id.
294. McKune v. Lile, 122 S. Ct. 2017,2025 (2002).
295. See id.
296. See id.
2003] Comment 751
Stevens noted in his dissent, the State offered no evidence that grant-
ing immunity would damage therapeutic success. 297
The State's claims were irrational as recidivism studies show that
granting use immunity does not actually have a negative impact on
successful treatment for sex offenders. 29H As the plurality pointed out,
New Hampshire's sex-offender treatment program also denies immu-
nity to its participants. 299 A follow-up study showed that after 4.8
years, 6% of inmates that had successfully completed New Hamp-
shire's intensive treatment program committed another sexual of-
fense. 30o On the other hand, Kentucky's sex-offender treatment
program grants use immunity to its participants. 301 Its follow-up study
showed that after 5 years, only 3.4 % of inmates that had successfully
completed Kentucky's extensive treatment program committed a new
sexual offense. 302 Comparing these studies illustrates that granting
use immunity does not have a negative impact on therapy, the pro-
gram that granted use immunity actually had a lower rate of
recidivism. 303
Denying immunity actually hinders successful therapy. Success-
ful therapy is heavily dependent on a healthy relationship between the
patient and therapist. 304 Therapeutic relationships, based on mutual
trust and acceptance, have a substantial effect on the success of treat-
ment. 3 0S Since the 1950s, courts have recognized "that psychothera-
pists and patients share a unique relationship, in which the patient's
ability to communicate freely without the fear of public disclosure is
the key to successful treatment. "306 If an inmate who is ordered to
participate in SATP knows that his therapist is obligated to report
statements of past offenses, a relationship of trust is unlikely to form
and would likely damage therapeutic success.

298. See infra notes 299-303 and accompanying text.
299. See McKune, 122 S. Ct. at 2025.
300. See MARY WEST ET AL., COLORADO DEPARTMENT OF CORRECTIONS, STATE SEX OF.
FENDER TREATMENT PROGRAMS: 50-STATE SURVEY 231 (2000), http://www.doc.state.co.US/ad-
min_reg/PDFs/SO-report-send2.pdf.
301. See Ky. REV. STAT. ANN. § 197.440 (Banks-Baldwin 2002); see also Razor v. Common-
wealth, 960 S.W.2d 472, 474 (Ky. Ct. App. 1997).
302. WEST, supra note 300, at 132.
303. It is interesting that five of the eighteen states that joined in an amicus curiae brief in
support of denying use immunity averaged higher recidivism rates than Kentucky (statistics were
unavailable for the other thirteen states). PRACTITIONER'S GUIDE, supra note 8, at 220, 223:
WEST, supra note 300, at 21: see also Brief of Amicus Curiae 18 States in Support of Petitioners
at *1, McKune (No. 00-1187). The average recidivism rates for the five states were as follows:
Arizona - 7%; Colorado - 6.1 %; Florida - 7%; Massachusetts - 0%; New Mexico - 10 to 15%.
PRACTITIONER'S GUIDE, supra note 8, at 220, 223; WEST, supra note 300, at 21.
304. See Bruce J. Winick, Coerced Confinement and Treatment: Coercion and Mental Health
Treatment, 74 DENV. U. L. REV. 1145, 1164 (1997).
305. See id.
306. See Jaffee v. Redmond, 51 F.3d 1346, 1355-56 (1994).
As to the second Turner principle, Kansas' prison regulations are

unreasonable because there is a ready alternative that would not bur-
den the inmates' rights with minimal cost to the penological objective.
The State could grant the inmates use immunity for any incriminating
statements given in relation to the SATP. This alternative would al-
low the State to continue to compel the inmates to participate in the
SATP without burdening their privilege against self-incrimination.
The McKune plurality reasoned that this alternative was too costly
because it undermined successful therapy307 and the State's opportu-
nity to prosecute particularly dangerous offenders based on state-
ments made in the SATP.308
The plurality's reasoning was flawed. As discussed in the analysis
of the first Turner principle, granting use immunity to inmates actually
has no negative impact on treatment as shown through recidivism
rates. 30l) Granting use immunity would actually have a positive impact
in that it creates a healthier therapeutic relationship between the in-
mate and counselor. Moreover, if the State granted use immunity,
other inmates would be much more likely to participate in the SATP
because statements made in therapy could not be used in future crimi-
nal prosecutions.
The plurality was also mistaken in its finding that granting use
immunity would create a "windfall" for past offenses of an inmate. 310
Even if the State offered use immunity to participants, the inmate
could still be held criminally responsible for any offenses. It is not as
if granting use immunity for statements made in treatment would cre-
ate a bar to criminal prosecution. The State could still prosecute the
sex offender with any legally obtained evidence beyond statements
made by the inmate while participating in the SATP.
In his dissent, Justice Stevens pointed out a second alternative. 311
He noted that the State could offer a truly voluntary program by re-
moving the coercive penalties. 312 Although scholars have suggested
that truly voluntary treatment may enhance therapeutic success,313
empirical studies show that coerced treatment may be just as effective
as voluntary treatment. 314
Legal scholars such as Bruce J. Winick315 have hypothesized that
creating a coercive environment that removes choice may be anti-
307. See McKune, 122 S. Ct. at 2025.

308. See id.
309. See supra notes 271, 295-303 and accompanying text.
310. McKune, 122 S. Ct. at 2032.
312. Id. (Stevens, J., dissenting).
313. Infra notes 315-18 and accompanying text.
314. Infra notes 319-20 and accompanying text.
315. Mr. Winick is a Professor of Law at University of Miami School of Law. Winick, supra
note 304, at 1145.
2003] Comment 753
therapeutic. 316 For instance, the effectiveness of many forms of psy-

chotherapy is proportional to the degree of patient cooperation. 317
Further, psychological studies have revealed that choice enhances the
potential for successful treatment. 31H
More recently, however, scholars have recognized that empirical
studies demonstrate that coerced treatment of substance abusers is as
effective as voluntary treatment. 319 In fact, numerous studies have re-
vealed that individuals who are ordered to participate in treatment
benefit just as much as voluntary participants. 32o
Removing penalties may decrease an inmate's incentive to par-
ticipate in the SATP, which would be costly to the State's penological
interests. In light of the proven effectiveness of coerced treatment, a
court would likely find that the decrease in incentive would create
more than minimal cost. Therefore, the second alternative suggested
by Justice Stevens does not appear to be realistic.
Both the State of Kansas and the United States Supreme Court
claimed that the SATP was a sensible approach to achieving the
State's legitimate penological objectives of reducing recidivism and
protecting innocent citizens.321 However, when the SATP is examined
more closely, in light of Turner, neither of the State's objectives have
been met. It seems the Court put the "cart before the horse" by using
the Turner standard in its compulsion analysis. Furthermore, by fail-
316. See id. at 1159, 1166; see also John S. Carroll, Consent to Mental Health Treatment: A
Theoretical Analysis of Coercion, Freedom, and Control, 9 BEHAV. SCI. & L. 129, 137 (1991).
317. Winick, supra note 304, at 1161.
318. See BRUCE J. WINICK, THE RIGHT TO REFUSE MENTAL HEALTH TREATMENT 328-29
(1997). The impact of "choice" can be observed in a field study involving nursing home re-
sidents. Ellen J. Langer & Judith Rodin, The Effects of Choice and Enhanced Personal Respon-
sibility for the Aged: A Field Experiment in an Institutional Setting, 34 J. PERSONALITY & Soc.
PSYCHOL. 191, 191 (1976). The purpose of the study was to "assess the effects of enhanced
personal responsibility and choice ... on [the] nursing home residents." Id. An experimental
group was informed that they could choose how their rooms should be arranged, how to spend
their free time, whether or not to care for a plant given to them by the nursing home, and what
night they would like to watch a movie. Id. at 193-94. They were also encouraged to complain if
they were dissatisfied with the nursing home. Id. at 194. A second (comparison) group was
informed of all the same entitlements, but was not informed of any choices as to those entitle-
ments. Id. For instance, the comparison group was given plants and told that the nurses would
take care of the plants. /d. The residents were also told about the movie, but were not given a
choice as to which night they could watch the movie. See id. Three weeks after the communica-
tion with the residents, only 25% of the comparison group reported feeling happier than they
had felt before the communication. Id. at 194, 196. In contrast, the experimental group reported
feeling 48% happier. Id. at 196. The study also showed that 71 % of the comparison group had
actually become more debilitated in the following three weeks, whereas 93% of the experimen-
tal group showed overall improvement. Id. at 197.
319. See Robert A. Shearer & Guy D. Ogan, Measuring Treatment Resistance in Offender
Counseling; Drug Abuse; Statistical Data Included, 22 J. ADDICTIONS & OFFENDER COUNSELING
72 (Apr. 2002); see also Sally L. Satel, Drug Treatment: The Case for Coercion, 3 NAT'L DRUG
CT. INST. REV. 3, 3 (2000), http://216.239.33.l00/search?q=cache:2H5RIiELEooC:dcpi.ncjrs.org/
docs/Coerced % 2520Treatment % 2520 Article % 2520- % 2520Satel.doc+drug+ treatment:+the +
case+for +coercion&hl=en&ie= UTF-8.
320. Shearer & Ogan, supra note 319, at 72; Satel, supra note 319, at 3.
321. See McKune v. Lile, 122 S. Ct. 2017, 2032 (2002); see also Petitioner's Brief at 11, McK-
une (No. 00-1187).
ing to move beyond its compulsion analysis,322 the Court upheld an

irrational treatment program that undermines therapeutic success and
violates inmates' constitutional rights.
v. CONCLUSION
In McKune v. Lile, the United States Supreme Court's decision

contravenes precedents, logic, and public policy. Successfully rehabili-
tating sex offenders is indeed a legitimate state interest that should be
a top priority in our legal system. However, Kansas' sex-offender
treatment program is simply not successful. The program fails be-
cause denying immunity to SATP participants undermines therapeutic
success while simultaneously violating an inmate's Fifth Amendment
privilege against self-incrimination. By upholding the SATP, the
Court has encouraged states to implement unsuccessful treatment
programs with disregard for constitutional rights.
The Court also failed to foresee the impact of such a limited deci-
sion. Lower courts are left to ponder whether eligibility for parole
and good-time credits conditioned upon successful completion of
treatment will constitute compulsion. It seems the Court was inter-
ested in showing the public its hard-line position against sex offenders
rather than fully addressing the issues in Lile's case.
322. See generally McKune, 122 s. ct. 2017.

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Treating the Sex Offender at Any Cost: Fifth

Amendment Privilege Against Compelled Self-

My individual right, whose embodiment has hitherto been immediate

From 1980 to 1994 the number of sex offenders housed in Ameri-

Treating sex offenders is generally a successful tool for decreasing

II. CASE DESCRIPTION

Robert G. Lile was an inmate serving time in medium level secur-

trial based upon newly-discovered evidence."35 Lile also would have

35. See Respondent's Brief at 6, McKune (No. 00-1187).

However, the court of appeals noted that "nowhere in the relevant

The privilege against self-incrimination arises from the Fifth

A. Components of the Privilege Against Self-Incrimination

produced an incriminating answer, which was insufficient to qualify as

B. The Penalty Concept

70. See id. at 479-80.

81. Cf Minnesota v. Murphy, 465 U.S. 420, 434 (]984).

In other "penalty cases," such as Garrity v. New Jersey94 and Lef-

procedures violated his Fifth Amendment privilege against self-in-

C. Constitutional Rights in the Prison Context

eight days of disciplinary segregation. 119 The State denied Conner's

119. See id. at 475-76.

right."133 The Court also considered whether accommodating the in-

133. Id. at 90.

difficult for prison officials. 145 Consequently, at significant cost to

145. See id. at 93.

imate penological interests," and that the Turner factors should be

D. Fifth Amendment Privilege Against Self-Incrimination in the

The first issue addressed in McKune v. Lile was whether Kansas'

whether the burden on the inmate's constitutional right was rationally

168. See id. at 2026.

program participants or make the program truly voluntary by granting

2. The State's Arguments

179. See id. at 37-39.

190. See McKune, 122 S. Ct. at 2022, 2026.

mum-security to provide room for inmates who agreed to participate

202. See id.

215. See id. (Stevens, 1., dissenting).

1. Governing Case Law: Compulsion

227. Supra notes 80-86 and accompanying text.

compelling in the past. Sanctions such as removing all of an inmate's

2. Atypical and Significant Hardships in Relation to Ordinary

3. Impact of the Court's Limited Decision: Compulsion

247. Id. at 483-84. The Court

258. See id.

"compulsion" if those penalties were at issue. Further, since Justice

4. The SATP Is Not Rationally Related to the State's

297. See id. at 2044 (Stevens, J., dissenting).

As to the second Turner principle, Kansas' prison regulations are

307. See McKune, 122 S. Ct. at 2025.

therapeutic. 316 For instance, the effectiveness of many forms of psy-

ing to move beyond its compulsion analysis,322 the Court upheld an

In McKune v. Lile, the United States Supreme Court's decision

322. See generally McKune, 122 s. ct. 2017.

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