Case o' The Week: Ninth Finds Bahr to Use of Incriminatary Statements from Supervision at Later Sentencing - Bahr, Sex Offender Treatment, and Supervised Release

Hon. Alfred T. Goodwin

  If our client is snagged by a cop, strapped into a polygraph, and told he’ll go to jail if he doesn’t confess all his crimes, that’s called a Fifth Amendment violation.

  If the same client is on supervised release, strapped into the same polygraph, and threatened with jail if he doesn’t confess his crimes, that’s called “sex offender treatment.”

  See the difference between the two? Neither, thankfully, does Judge Goodwin. United States v. Bahr, 2013 WL 5067083 (9th Cir. Sept. 16, 2013), decision available here.

Players: Decision by J. Goodwin, joined by Judges Reinhardt and Hurwitz. Big win for D. Or. AFPD Thomas Hester.

Facts: In 2003 Bahr was convicted of third degree rape in state court. Id. at *1. While on supervision he was required to take a “full disclosure” polygraph as part of his sex offender treatment. Id. During that polygraph, he revealed sexual contact with minors – both when he was a minor, and as an adult. Id. He also revealed in a sex offender “workbook” that he had sexually abused 18 children. Id. Bahr was later convicted in federal court of possession of child pornography, and sentenced to 240 months. Id. Over defense objection, the federal PSR included the admissions from the sex offender treatment, made during the prior supervision period.

Issue(s): “In order to establish a [Fifth Amendment] violation, a person must show ‘(1) that the testimony desired by the government carried the risk of incrimination . . . . and (2) that the penalty he suffered amounted to compulsion.” Id. at *1.

Held: “We make clear now that the use of unconstitutionally compelled statements to determine a sentence in a later, unrelated criminal proceeding is unconstitutional.” Id. “When the government conditions continued supervised release on compliance with a treatment program requiring full disclosure of past sexual misconduct, with no provision of immunity for disclosed conduct, it unconstitutionally compels self-incrimination.” Id. “At bottom, Bahr faced revocation of his supervised release for a failure to successfully complete treatment, and he received no assurance that his admissions during treatment would not be used to prosecute him. The government therefore compelled Bahr’s treatment disclosures in violation of the Fifth Amendment, and the district court should not have considered the information.” Id. at *3.

Of Note: Like a lamb to slaughter, Bahr fully complied with the orders that he incriminate himself during sex offender treatment and bleated nary an objection. By not asserting the Fifth while strapped into the polygraph, did he waive his objection? In his thoughtful opinion, Judge Goodwin explains, “no.” 

   “Although Bahr did not assert his Fifth Amendment right against self-incrimination at the time of the disclosures, that right is self-executing where its assertion is penalized so as to foreclose a free choice . . . When the government conditions continued supervised release on compliance with a treatment program requiring full disclosure of past sexual misconduct, with no provision of immunity for disclosed conduct, it unconstitutionally compels self-incrimination.” Id. at *1 (quotations and citations omitted). 

   Reassuring protection for our clients who are pushed into incrimination during sex offender treatment on supervised release, with inadequate warnings that their candor is the rope that will form a later noose.

How to Use: Will Bahr finally restore some honesty to sex offender treatment? We’re assured that our clients’ candid admissions during supervised release are only intended for “treatment” – yet despite this reported interest in treatment alone, Probation and the USAO flatly refuse to give immunity for statements made during the sessions. Judge Goodwin calls it like it is: “Bahr was required to give full disclosure without a guarantee of immunity, and with specific acknowledgement from his parole officer that crimes would be reported to the district attorney and could be prosecuted.” Id. at *2. After Bahr, Probation and the USAO should agree to written immunity agreements if they’re keen on extracting confessions during sex offender treatment.

                                               

For Further Reading: The federal government is likely to shut down on October 1. The Director of the Administrative Office, the Hon. John Bates, has provided a detailed memorandum on the ramifications for Federal Defenders and CJA counsel. The entire memorandum has now been posted online: it is available at http://legaltimes.typepad.com/files/shutdown.pdf

Image of the Honorable Judge Alfred T. Goodwin from http://law.uoregon.edu/giving/goodwin-fund/

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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