Court Reviews Sex Offenders Rights
By Gina Holland
Associated Press Writer
Wednesday, November 28, 2001; 5:52 PM
WASHINGTON -- Supreme Court justices considered this
prison scene: jailers going cell-to-cell with notepads
asking inmates to confess past crimes or forfeit their
Kansas does that to sex offenders in rehabilitation,
an inmate lawyer argued Wednesday.
As part of therapy, rapists and other offenders must
list all their past sex crimes, information that can
be used for fresh prosecutions. Those who refuse go
into maximum security.
"No TV? ... No recreation? No softball?" Justice
Anthony M. Kennedy asked. "Isn't there a danger of
inducing innocent people to confess?"
An appeals court ruled the practice unconstitutional.
The Supreme Court may use the case to determine how
far the government can go to rehabilitate inmates
without violating constitutional rights.
Kansas argues it is protecting the public because sex
offenders have a high likelihood of repeating their
crimes. The Bush administration and other states also
want justices to use the case to extend prison
No one has been prosecuted with information divulged
to counselors, justices were told. But Kansas, unlike
some other states, does not give prisoners immunity
for information they share.
The case turns on inmate Robert Lile's Fifth Amendment
right against self-incrimination. Lile has been in
prison since 1983 for raping a young woman. He claims
the sex was consensual.
When he was ordered to begin the program in 1994, Lile
was told to sign paperwork admitting guilt in the
crimes he was convicted of and to fill out a form that
listed his sexual history, including names of any
other victims. Prison staff members use lie detector
tests to check for accuracy.
When Lile refused, his security classification was
changed, which means fewer visitors, no personal
television, limited work and recreation opportunities
and restrictions on what he can keep in his cell.
Stephen McAllister, the Kansas solicitor, said the
program is limited now to those who commit sex crimes,
but officials believe it would be constitutional to
If that happened, "every prisoner in Kansas could be
told, 'Either confess ... or you're going to maximum
security for the rest of your term.' I would be very
troubled by that," Kennedy said.
Some justices seemed conflicted over how significant
the privileges were and whether there is a difference
between privileges being offered or taken away.
Justice Sandra Day O'Connor said visitation "must mean
all the difference in the world to somebody who's
"This man is going to eat whether he does it (program)
or not," Chief Justice William H. Rehnquist said.
Lile's lawyer, Matthew Wiltanger, said model prisoners
who refuse to give authorities incriminating
information get the same punishment as serious
Kansas solicitor McAllister said they are not
penalized, just denied mild incentives.
The federal government also has a sex offender
program, but unlike in Kansas' program, participation
The 18 states supporting Kansas in the case said in
court filings that the ruling against that state by
the 10th U.S. Circuit Court of Appeals "improperly
undercuts the state's dual interests in punishing sex
offenders for past crimes and in rehabilitating those
offenders effectively to prevent future crimes."
Cardozo Law School professor Kyron Huigens said if
Kansas wins, other states will expand their programs.
"I think that the states probably have an ulterior
motive of gathering evidence," he said. "If they
really wanted to treat people, they could give them
immunity and there wouldn't be a Fifth Amendment
The case is McKune v. Lile, 00-1187.