Federal judge in Indiana holds mandatory “sex offender” classes unconstitutional

By Fatima Hussein . . . A federal judge has ruled that Indiana’s mandated sex offender classes for prisoners who oppose them violates the constitutional right to be free from self-incrimination.

The Sept. 28 ruling in the class-action lawsuit filed in the Southern District of Indiana will affect all convicted, incarcerated sex offenders who opt out of the Indiana Sex Offender Monitoring and Management, or SOMM, program. Three of the plaintiffs will be eligible for release from prison.

The Indiana attorney general’s office has filed an emergency request to temporarily halt the case pending an appeal, saying the decision could put the public at risk by putting convicted sex offenders back on the streets.

A spokesman for Attorney General Curtis Hill confirmed that the office will file an appeal by the Oct. 30 deadline.

The ruling in the four-year-old case overrules an Indiana Supreme Court decision from 2014 that found the classes to be constitutional.

The dispute hinges on what the classes require.

In May 2013 Donald Lacy, Lawrence Greer-Bey, Frederick Holmes-Bey and Allan Kirkley filed a lawsuit against the state, then-governor Mike Pence, the Indiana Department of Correction and officials at the Plainfield and New Castle correctional facilities in Indiana.

The plaintiffs, all convicted of sex crimes, argued that since they pleaded not guilty to the crimes they were convicted of, they should not be forced to attend the SOMM program.

The program, instituted by the Indiana Department of Correction in 1999, forces participants to confess guilt in the crimes for which they are charged, give written consent to disclosure of confession and submit to a polygraph test.

Specifically, the program requires participants to disclose the details of the crimes for which they were convicted and confess to any past acts of sexual violence.

Jeff Cardella, a criminal law professor at Indiana University’s Robert H. McKinney School of Law, says the requirement to confess other crimes for which they were not adjudicated or convicted is a clear violation of the Fifth Amendment.

“The criminal defendant could potentially face additional charges as a result of that confession,” he says. “They’re being ordered to confess to crimes the state might otherwise not be aware of,” he told IndyStar.

If prisoners do not participate in the program, they could stay in prison longer than they otherwise might.

Punishment for not participating in the classes includes loss of good-time credit, loss of credit-earning class time and loss of “life, liberties and freedom for refusing to admit to an act they denied at trial,” plaintiffs allege in the original complaint.

U.S. District Court Judge Richard Young ultimately sided with the prisoners.

“It is undeniable that prison authorities may, in the interest of rehabilitation, impose penalties for failing to participate in sex offender treatment programs,” Young wrote in his opinion. “But the SOMM program at issue in this case provides significant penalties, in the form of lost earned food time credits and demotion in credit class, or choosing to remain silent.”

He added that prisoners should be able to earn credit toward their sentences without incriminating themselves, “like any other convicted prisoner.”

Representatives from New Castle and Plainfield correctional facilities declined to comment on the lawsuit.

An attorney for the Indiana attorney general’s office filed a motion to stay, pending an appeal of the case.

“In the absence of a stay pending appeal, unquestionable and irrevocable harm to government actors, as well as the citizenry of Indiana will be sustained, the consequence of which greatly outweighs the harm to the limited persons affected by the Judgment,” wrote Jonathan P. Nagy, deputy attorney general.

“If the Court’s Judgment is not stayed pending appeal, various convicted sex offenders, including three of the class representatives, are eligible for immediate release.”

The case is expected to be appealed to the 7th District Court of Appeals in Chicago.

Source: IndySTAR

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    • #24828 Reply
      Tim L

      ” In the absence…unquestionable and irrevocable harm to government actors….”??? WTF!

    • #24823 Reply
      R. Arens

      In the end, what difference does it really make? All the state of Indiana is doing is delaying the inevitable by citing that dangerous offender crap. Really? The best argument they had was that these men were obviously sex offenders and shouldn’t be put on the streets? I think society as a whole has been fed too full with this “sex offenders want to rape your kids” sbeil that they’ve become completly ignorant of the entire issue. These guys broke the law, paid the price and need to move on with their lives like every other felon does, not be trapped in a system dictated by psycho babbel, hell bent on forcing confessions to further prosecute, disguised as legitimate therapy.

      • #24834 Reply
        Tim L

        From my perspective the headline here is THEY PLEADED NOT GUILTY!

        There can be no public interests implicated from those whom were factually not guilty. Unfortunately, false positives occur in this country. It happens way more than people know. When a sexual component exists in any particular case jury’s mindset is skewed in favor of the prosecution to the point where NO ACTUAL EVIDENCE is needed for conviction. Over at http://www.wrongful convictions blog and innocenceproject.org they confront that FACT on a daily basis. DNA exoneration lays that fact bare and NARSOL errs when it points to playground pissers as the apex of abhorrent application of SOR obligations. Clearly thzere are persons on the list who were actually not guilty to begin with. I am in that group.

        • #25097 Reply

          This issue of “confess or else!” is really the crux of state-mandated sex offender treatment. Why do you think so many “treatment” programs require sexual history polygraph examinations? It’s to find out what else you’ve done. What’s so insidious in my book is that even though they say there’s no threat of self-incrimination, the threat still exists. In my state, you have to divulge the age, and gender of the victim. You have to disclose whether or not the child was a stranger, an acquaintance, or a relative. You have to tell when the abuse started and when it ended. Now, if that does not give them enough pieces of the puzzle to figure out who certain child victims are, then nothing does! In the case of a family member, all the state has to do is send detectives to an offender’s family and see which child was of the same gender and age during the time the abuse happened and which of those children the offender was around during that time. From there it won’t take long to ferret out the identity of that anonymous victim. Also, any other victim that didn’t disclose their abuse at the time may come forward years or decades later. If the sexual history report the offender filled out still exists, the history questionnaire could be subpoenaed and once again they could find a little John or Jane Doe that matches the description and other details of the victim that’s now pressing charges and there you have the offender’s own words…a confession. The state won’t bother with the polygraph results themselves since they are inadmissible, but that hand-written questionnaire is a different story. I don’t know how much protection the written statement on that questionnaire that states the report will not be used to incriminate would be. If the police can lie about non-existent witnesses or evidence and get by with “reasonable deception”, it makes me wonder about that “We promise not to use this against you for prosecutorial purposes” promise.

          If treatment is the real aim of these polygraphs, then why don’t they just stick to the instant offense and not threaten the offender with violations of his supervision based on an assertion of “I didn’t do it!!” in cases when the offender has maintained innocence from the time he was accused?? Why try to force those who maintain their innocence to admit to something they may well have never done in the first place??? I know some offenders will lie and deny their offenses sometimes when they’re dead guilty, but does that make it right to sacrifice the rights of every other offender in the state based on those who won’t own their behavior?

      • #25095 Reply

        There is none so blind as he who will not see. Robert E. Freeman-Longo, the author of that infamous article in “Psychology Today” which started the “frightening and high” LIE the U.S. Supreme Court has held on to since McCune v. Lyle is not going anywhere anytime soon. This man, as well as Barbara Schwarz, the psychologist who wrote the 1980 D.O.J. manual who cited Freeman-Longo’s article have since said their works were pulled out of thin air with no legitimate research to back them. When you write a manual with only 6 references to go on, one of which is the dictionary and the other is an outright lie told by a man with a financial interest in peddling his sex offender treatment program; an article for which there was NO peer review or any other standard of scientific verification and the highest court in the nation runs with it and returns to it time after time, I start thinking that when it comes to us, the truth does not matter.

        The Supreme Court defies logic. They made two wonderful rulings recently:
        (1) Packingham v. North Carolina (even though that “frightening and high” lie polluted the courts ruling…)
        (2) Refusing to hear Michigan’s appeal of the 6th Circuit ruling which declared retroactive application of the registry and its restrictions as punitive and a violation of ex post facto.

        Then comes the request for SCOTUS to review the decision overturning a lower federal court who ruled Minnesota’s civil commitment program unconstitutional. The court declines to hear that case and in view of the 2 previous rulings I cited above it just does not make any legitimate legal sense. This makes me think that when it comes to major cases like depriving someone indefinitely of liberty based on the frightening and high myth that has been soundly disproven time and time again, it makes me think the justices vacillate between being serious justices and judges of law and outright judicial activists and politicians who pander to the states. It’s as if they sat back and said, “We’ll be going against this court’s own past rulings if we grant review. The people in those states who have had civil commitment for so long will be ready to revolt if we rule against these programs and we’ll force them to do something immensely politically and socially unpopular. We’ll also be in the cross-hairs of an irate public, so we’re not going to touch this issue with a 50-foot pole! If one’s very freedom is denied based solely on fear and moral outrage after they have served the prison sentence imposed by the court does not deserve the highest court’s strictest and unrelenting scrutiny, then nothing does.

    • #24836 Reply

      “In the absence of a stay pending appeal, unquestionable and irrevocable harm to government actors, as well as the citizenry of Indiana will be sustained, the consequence of which greatly outweighs the harm to the limited persons affected by the Judgment,” wrote Jonathan P. Nagy, deputy attorney general. Translation:

      If you rule that we have been violating people constitutional rights they will be able to sue us for damages you must change your judgement or we will have to take responsibility for our wrongs!

      How pathetic and this is exactly what Indiana has for a legal system.

      • #24881 Reply

        I have read many responses on NARSOL about sueing for damages, we aren’t leagaly able to sue so who ever that atg is in your state is dumb and doesn’t belong in a position of power and if the higher courts believe that then someone needs a refresher course in law. The courts should already know they can’t be sued for damages. I am not a lawyer and don’t know much about the laws but that is something I read on this site from people who are very knowledgeable about this BS situation we’re all in together. If you look in the AWA LOOSES IN PENNSYLVANIA and the other PA postings in the good new section. I’m sure the laws in your state are probably different but they may be able to make light of something.

        • #28110 Reply
          Tim Lawver

          There is the option of trial. Demand jury of your peers!

    • #24869 Reply
      Jonathon Merritt

      The concept that makes all of us into sacrificial animals is the concept of “Society”
      This term has been high jacked by the people in power and the Sociologists who believe that our lives and our choices are not our own and that we are involuntarily born with a debt that we can never pay in full for as long as we live. They believe that the needs of the many will always outweigh the rights and liberties of the individual. More so than ever do they feel this way in regards to those on the registry. Such concepts as the Constitution,and due process , and equal rights are thrown aside when dealing with our group. We have been denied basic human rights because in the eyes of many in society, we are no longer human beings, ergo, no longer having human rights.
      We are the last minority,who suffers from wholesale bigotry under color of law.
      But there have been promising events in the last two years that may be a sign that there may be light at the end of this long dark tunnel that we have been forced to live in.

    • #27471 Reply

      “In the absence of a stay pending appeal, unquestionable and irrevocable harm to government actors, as well as the citizenry of Indiana will be sustained, the consequence of which greatly outweighs the harm to the limited persons affected by the Judgment,” wrote Jonathan P. Nagy, deputy attorney general.

      Now everyone can see Jonathan P. Nagy does not understand the constitution at all, or maybe he doesn’t care. Bottom line is anyone who thinks this is right should be disqualified from law.

    • #42701 Reply

      what about cases where the felon pleaded guilty but was advised by their lawyer to change their plea due to a plea agreement.

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