I find it entirely plausible -- and it seems borne out by emperical research -- that sex offenders are substantially less likely to reoffend if they confront and admit their past misconduct. For this reason, I'm not especially troubled by sentencing conditions that require sex offenders to participate in treatment -- including giving honest answers to their therapist -- and the imposition of negative sanctions to a failure to engage in such treatment.
But requiring treatment is one thing. Telling an offender that he has to admit all of his past crimes -- including those for which he hasn't been charged -- even though the state might well prosecute him based upon those same admissions is entirely another thing. You can't compel an offender to admit past offenses when his statements may well be used to bring additional criminal charges against him. So Judge McKeown seems entirely right here when she holds that the repeated incarceration of Lawrence Antelope based upon his refusal to admit past offenses as part of his treatment violated his Fifth Amendment rights.
Antelope was sentenced to probation. The only reason he served any time -- and he was eventually sentenced to 30 months in jail (indeed, had already completed his sentence by the time this appeal was decided!), plus 10 more months after resentencing -- was because his probation was repeatedly revoked for his refusal to reveal to his counselor all of the sex offenses that he ever committed. But his counselor expressly told Antelope (and testified) that he routinely revealed to authorites any confessions of past uncharged sex offenses by his patients, and Montana law would also compel the counselor to reveal such offenses if they involved minors. No wonder Antelope refused to talk!
I admit that it's hard to figure out precisely what the Supreme Court's fractured opinion in McKune suggests in a case like this, since it essentially involves guessing how Justice O'Connor would view these particular facts. That's never an easy call. But, purely as a matter of precedent, it seems like Judge McKeown gets it right; that this is impermissible punishment under McKune. More importantly, regardless of what McKune holds, it just seems wrong to me that the state can force an offender to talk and simultaneously prosecute him for those compelled statements. That's the whole point of the Fifth Amendment, right?
I have no problem with the state compelling Antelope to talk. Antelope should indeed get the best treatment possible, and both he and society benefit from such a result. So give the guy use immunity. Or cloak his conversations with privilege. Either way, he can indeed talk freely, and everyone wins. But you can't force a guy to talk by throwing him in jail if he doesn't incriminate himself. That's the way the English did it to us in the 1700s. That's what the Fifth Amendment is designed to prevent.