Remember the Inquisition where you could either deny your guilt and get burned at the stake, or confess and get burned at the stake? The idea was that since confessing saves you from eternal damnation, the Inquisition was simply a strict and intensive rehabilitation program, enforcing “acceptance of responsibility” for the offender’s own good.
The notion that confessing is necessary to rehabilitation, and conversely, that not confessing equals incorrigibility remains an unquestioned article of faith in the criminal justice system. So we have these prison “treatment programs” where, if a sex offender refuses to confess to uncharged, unknown, or possibly imaginary crimes, he faces a longer sentence, denial of parole and/or other unpleasant consequences. And if he does confess, he risks prosecution, civil commitment and/or a higher SORA classification.
Imagine if every time you pay a parking ticket you have to confess to all the times you parked in front of a fire hydrant without being caught. And you can’t get your car back until you do.
Prison sex offender treatment is, as you would expect, highly scientific, based on the best Nurse Ratched group therapy methodology. A recent Seventh Circuit decision describes a typical treatment program:
Indiana requires all inmates convicted of a sex offense to complete the INSOMM program before release. . . .
During Phase 1, which focuses on “Consent and Assessment,” participants must fill out a Sex Offender Questionnaire that asks them to identify which illegal sexual acts (for instance, rape, child molestation, or prostitution) they committed and how often.
Based on their offense history, participants are sorted into one of three risk groups for Phase 2, “Risk Based Sex Offender Treatment,” which consists of group therapy sessions led by counselors. . . . The higher-risk groups must complete more hours of therapy. In preparation for the therapy sessions, participants must fill out workbooks that require them to describe in detail all past acts of sexual violence and abuse, regardless of whether they were ever charged for those offenses. . . .
As INSOMM stresses to its participants throughout the program, they enjoy neither immunity nor confidentiality for any of the disclosures they make at any stage. Moreover, participation is an all-or-nothing affair: inmates may not opt out of any part of the program, and they are required to respond fully to all questions asked. A counselor who suspects that a participant has been either deceptive or less than forthcoming has the discretion to order polygraph testing. Such an order triggers a requirement for the participant to fill out a detailed Polygraph Sex History Questionnaire. A participant is excused from admitting responsibility for an offense only if the polygraph examination indicates no deception and the counselors agree that the participant is being truthful.
Failure to participate satisfactorily in INSOMM is costly. It is treated as a Class A or Major Conduct disciplinary violation. That is the same class assigned to rioting, escape, rape, or assault on prison staff.
The particular Class A violation at issue in our case—Code 116, “Refusing a Mandatory Program”—applies to a much broader range of conduct than a flat-out refusal to participate. Inmates who refuse a polygraph examination, deny parts of their offenses, give answers that are deemed to be incomplete or dishonest, or otherwise fail to “adhere to treatment expectations” also qualify for a Code 116 violation. The INSOMM counselors make the final decision whether an inmate’s conduct merits disciplinary action.
For a first Code 116 offense, inmates are penalized (among other ways) by placement in a credit class that denies them the opportunity to accrue good-time credits. These are credits to which they would otherwise be entitled by statute. . . .
If an inmate persists in whatever conduct gave rise to the disciplinary action—such as by refusing to admit a particular crime or answer a particular question—he is regarded as committing a continuing Code 116 violation punishable by revocation of 180 days of already-acquired good-time credits for every 60 days during which the noncompliance continues. While the violation is ongoing, the inmate is barred from earning new good time credits. Some class members have lost all of their accrued good-time credits as a result of this system.
The decision describes the questions the inmates have to answer:
First, in the disclosure assignments that make up part of the core-group workbooks, the program directs the participant to be “detailed and specific” about each victim he has harmed, using a separate sheet for each one.
In the Medium Risk Core Group Workbook, the questions that the participant must answer for each past act of sexual violence or abuse include the participant’s age and the victim’s age at the time of the offense; the first name of the victim; the participant’s relationship to the victim; “what parts of [the participant’s] body” touched “what parts of [the victim’s] body”; “how many times [the participant] offended the victim and over what period of time”; “where and when” the abuse occurred; how the victim was selected and groomed; and the types of force used to ensure the victim’s compliance.
The High Risk Core Group Workbook includes these questions and more: it also asks the participant to describe “in detail the set-up of the sexual abuse of each victim”; patterns among his victims, such as their age, appearance, and race; “when and how” the abuse started with each victim; and “in what ways [the participant’s] … sexual offending behavior change[d] over time.”
If counselors find any of the responses to those questions to be inaccurate or incomplete—a determination they have unfettered discretion to make—they can refer the participant for a polygraph examination.
Such a referral starts with the obligation to fill out yet another, equally intrusive, questionnaire. The polygraph questionnaire asks highly specific questions, such as: “How many children have you physically forced into sexual activities? Describe what you did.”; “How many times have you had sexual contact with someone who is handicapped? Describe.”; and “How many times have you made child pornography (taken pictures, video-tapes, films, etc.) of nude children or children engaged in sex acts? Describe.”
The participant must also “write the number of times” that he has masturbated in each of 31 different public places, indicate the most recent time he exposed himself to someone, and describe times when he had sexual contact with someone who was drunk or under the influence of drugs. For each victim, the participant must indicate whether he engaged in any one of 27 specific actions and how many times, including whether he “put [his] penis inside [the victim’s] vagina (even a little bit),” “threatened [the] victim with harm,” or “masturbated in front of [the] victim.” Lacy v Butts (7th Cir. 2019).
Doesn’t pass the constitutional mustard, said the Seventh Circuit. It’s self-incriminating to admit that you put your penis into a [non-consenting] vagina (even a little bit). Ditto masturbating in any of 31 public places. And if you lose good time credits, i.e., have to serve more time, unless you admit to it, that’s compelled. “The Fifth Amendment draws one sharp line in the sand: no person shall be compelled in any criminal case to be a witness against himself.”
No doubt the Hoosiers can fix it so that non-confessors’ prison terms won’t be longer, just worse. Which the Supreme Court has no problem with.