|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.
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.
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).
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.
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.
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
Labels: Fifth Amendment, Goodwin, Probation Office, Sex Offenders, Supervised Release