00-1187 McKune v. Lile

Listen to this article

The mere fact that Kansas does not offer legal immunity from prosecution based on statements made in the course of the SATP does not render the program invalid. No inmate has ever been charged or prosecuted for any offense based on such information, and there is no contention that the program is a mere subterfuge for the conduct of a criminal investigation. Rather, the refusal to offer use immunity serves two legitimate state interests: (1) The potential for additional punishment reinforces the gravity of the participants’ offenses and thereby aids in their rehabilitation; and (2) the State confirms its valid interest in deterrence by keeping open the option to prosecute a particularly dangerous sex offender.

Prison context or not, respondent’s choice is marked less by compulsion than by choices the Court has held give no rise to a self-incrimination claim. The cost to respondent of exercising his Fifth Amendment privilege – denial of certain perquisites that make his life in prison more tolerable – is much less than that borne by the defendant in, e.g., McGautha v. California, 402 U.S. 183, 217, where the Court upheld a procedure that allowed statements made by a criminal defendant to mitigate his responsibility and avoid the death penalty to be used against him as evidence of his guilt. The hard choices faced by the defendants in, e.g., Baxter v. Palmigiano, supra, at 313; Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 287-288; and Minnesota v. Murphy, 465 U.S. 420, 422, further illustrate that the consequences respondent faced did not amount to unconstitutional compulsion. Respondent’s attempt to distinguish the latter cases on dual grounds-that (1) the penalty here followed automatically from his decision to remain silent, and (2) his participation in the SATP was involuntary-is unavailing. Neither distinction would justify departing from this Court’s precedents.

224 F.3d 1175, reversed and remanded.

Local effect:

Neither the Seventh Circuit nor any published Wisconsin cases directly address the issue in this case.

Kennedy, J.; O’Connor, J., concurring; Stevens, J., dissenting.