Monday, February 07, 2005

Case o' The Week: Antelope, SABER, and Fifth Amendment

In the last several years, Probation and the DOJ have pushed the SABER program for all federal sex offenders. This program requires mandatory confession of all prior sex crimes as part of supervision -- without any immunity from further prosecution. See United States v. Antelope, __ F.3d __, 2005 WL 170738 (9th Cir. Jan 27, 2005), available here. The Ninth Circuit in Antelope finds that this procedure violates the Fifth Amendment. A remarkable win after four appeals by the Federal Defender of Montana.

Players: A remarkable and hard-fought victory by Defender Anthony Gallagher, AFPDs John Rhodes and David Avery, of the Montana FPD.

Facts: Antelope was convicted of possessing child porn, and received an initial sentence of five years probation. Antelope, 2005 WL 170738, *1 (9th Cir. Jan 27, 2005). As part of his supervision, he was ordered to participate in the "Sexual Abuse Behavior Evaluation and Recovery program" ("SABER"). Id. This program required mandatory, periodic, and random polygraph examinations, where Antelope would be required to disclose his full sexual history. Id. at *2. He repeatedly refused to do so, citing fear of self-incrimination. Id. The SABER counselor confirmed that any confessed prior sexual incidents with children would be referred for prosecution. Id. at *5. Indeed, Montana state law required the counselor to do so. Id. Antelope’s probation was repeatedly revoked, he received custodial sentences, and he appealed four times. Id. at *2.

Issue(s): "The case he now brings requires us to decide whether the government’s actions [requiring full participation in the SABER program, or revocation and incarceration] violated his Fifth Amendment right against compelled self-incrimination." Id. at *1.

Held: "Because the Constitution does not countenance the sort of government coercion imposed on Antelope, and because his claim is ripe for adjudication, we reverse the judgement of the district court." Id. at *1. On the basis of McKune [v. Lile, 536 U.S. 24 (2002) (O’Connor, J., concurring in 4-1-4 decision)], we hold that Antelope’s privilege against self-incrimination was violated because Antelope was sentenced to a longer prison term for refusing to comply with SABER’s disclosure requirements." Id. at *8. "Because the government and district court have consistently refused to recognize that the required answers may not be used in a criminal proceeding against Antelope, . . . we hold that the revocation of his probation and supervised release violated his Fifth Amendment right against self-incrimination." Id. at *10.

Of Note: The SABER program, and others like it, are part of a huge national push by Probation and the DOJ for mandatory disclosure of sexual history during probation, for child porn and molestation cases. It is remarkable that the program – which required the admission of prior sex crimes without any immunity – has survived constitutional challenge this long, but the program illustrates how these offenses have become the witch hunt of this decade. The Montana FPD office deserves the thanks of the defense bar for four appeals challenging this procedure. It also bears emphasis that this panel – Brunetti, McKeown, and Gould – is a far cry from a dream Ninth Circuit team (like Pregerson, Ferguson, and Reinhardt). Hopefully, the moderate-right bend of this panel will fend off an en banc call.

How to Use: Antelope is of obvious use for any federal sex offense, as a SABER program has become mandatory for almost any negotiated settlement. One worries, however, that Probation and DOJ will cook up some alternative. If defense counsel encounter forced alternative SABER requirements for sex crime cases, contact Steve Kalar and we will post them on the Ninth Circuit blog and solicit arguments. Antelope is also an important case for its thorough and thoughtful discussion of Fifth Amendment jurisprudence, ripeness, incrimination, and compulsion. It will a lead Ninth Circuit case for Fifth Amendment issues such as Kastigar waivers and compelled handwriting exemplars.

For Further Reading: Although this web site is generally has a law-enforcement angle, there is actually a fairly thoughtful blog on Antelope that seems to have postings from sympathetic sex offense counselors. See sex criminals blog here.

David Fermino, AFPD, Steven Kalar, Senior Litigator, ND Cal.


Anonymous Anonymous said...

Excellent summary. I was wondering when sex offender polygraphs would become a fifth amendment issue.

Saturday, April 15, 2006 3:23:00 PM  

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