Resurrecting the star chamber

BY CLIFFORD GINN

The Supreme Court recently decided to all but abolish Fifth Amendment rights for prisoners, apparently believing that false confessions are fine, as long as they come from inmates. In McKune v. Lile, the Court upheld a Kansas prison regulation that required sex offenders to participate in a rehabilitation program or else suffer transfer to a maximum security prison facility, with severe limitations on virtually all of their freedoms. This is the same sanction prisoners receive for such infractions as rape, assault and arson. As part of the program, prisoners must confess their crimes and provide written sexual histories, including uncharged criminal offenses. A lie detector confirms the accuracy and completeness of the confessions. Kansas provides no immunity for the statements, and prison officials must report to law enforcement any disclosed sex offenses against minors.

The rationale goes something like this: Rehabilitation is a legitimate penalogical interest. Honesty with therapists and acceptance of responsibility for crimes are crucial for successful rehabilitation. While prisoners have some rights, they are less than those of other citizens, and must yield to legitimate state interests. There are cases that do not find compulsion when an inmate or defendant faces an increased possibility of receiving the death penalty, so this isn’t so bad. Therefore, unless the punishment “constitute[s] atypical and significant hardships in relation to the ordinary incidents of prison life,” it will be deemed insufficiently coercive to compel self-incrimination. It should be noted that the Supreme Court does not consider 30 days in punitive segregation — a brutal, dehumanizing punishment uniformly condemned by every human rights organization I know of — to be “atypical.”

Justice O’Connor’s concurrence provided the fifth vote. She said it would take less than the plurality’s standard to compel self-incrimination, but she didn’t consider the punishment in this case sufficiently coercive, given the record before her.

As Justice O’Connor and the dissent note, the plurality (you know who they are) gets the precedents all wrong. There are four lines of relevant cases. Under the “choice cases,” in a criminal trial, the government may reward testimony, but it cannot punish or give evidentiary weight to silence. In a non-criminal proceeding, the government may command testimony, but only if it provides immunity against prosecution based on that testimony. The government may also give appropriate evidentiary weight to silence in such a proceeding. If the government equates silence with guilt, and automatically imposes punishment, then the case becomes a “penalty case,” and the question is whether the penalty was such that it would compel a reasonable person to incriminate herself.

The plurality treats this as a “choice case,” even though the automatic punishment makes it a “penalty case.” The cases they reference, where an individual’s silence increased his likelihood of receiving the death penalty, were choice cases, making the comparison of the death penalty with the punishment opposed in this case inapposite. Furthermore, both O’Connor and the plurality refuse to acknowledge both the extraordinarily coercive nature of the imposed restrictions on freedom, restrictions calculated to compel inmates to abstain from committing the most egregious offenses, and the coercion that arises from the increased danger to an inmate’s bodily integrity that a transfer to maximum security entails.

A nationwide survey of prisons reveals that prisoners face substantial threats to life and bodily integrity. One federal court found a “culture of sadistic and malicious violence” prevailed in Texas prisons. In 1998, 59 inmates were killed by other inmates, and 6,750 inmates required medical attention as a result of prison violence. As many as 70 percent of all inmates are assaulted every year. Extrapolation from studies suggests that 140,000 male inmates have been raped, and numbers are higher for female inmates. Violent gangs exist in every prison system, and both the unwillingness of prison officials to entertain inmate complaints and of prosecutors to prosecute prison crimes leads to dramatic underreporting of this violence. It seems certain that most of these horrors occur in maximum security prisons, where inmates are more violent, more inmates share a cell, inmates have less money, and more inmates are part of gangs.

If an indigent inmate wants to prove that a threat to place him in such an inferno is coercive, Justice O’Connor apparently expects him to compile data that even well-funded social scientists find difficult to obtain (the plurality would not even change their minds on such a record). This is not unlike the Supreme Court’s conditioning Miranda rights on the requirement that indigent criminal defendants have sufficient familiarity with the U.S. Reports to know the precise words to intone when they ask for a lawyer. This makes a mockery of our criminal justice system, and as is so often the case with this Court’s decisions, the burdens will fall most heavily on those with the least power in our society.

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