DOJ: News Release

McGrath Files Friend-of-Court Brief in Sex-Offender Treatment Case

HELENA – Montana Attorney General Mike McGrath filed a friend-of-the-court brief in the U.S. Supreme Court Thursday, urging the high court to overturn a ruling by the Tenth Circuit Court of Appeals that could weaken sex offender treatment programs in prisons nationwide.

McGrath co-authored the brief with Ohio Attorney General Betty D. Montgomery.

The case in question – McKune V. Lile – revolves around a Kansas prison’s approach to treating sex offenders. In the Lansing Correctional Facility, a prisoner refused to discuss his past sex offenses as part of a rehabilitation program and later, prison officials denied him privileges like access to exercise equipment and an in-cell television.

“Many of the States, like Kansas, work to confront the ongoing cycle of violence to which many sex offenders are prone by asking those offenders to themselves confront and discuss openly their past behavior,” the brief explains.

The brief concludes that the Tenth Circuit ruling would require the states to choose between two of the most powerful weapons in the fight against the sexual abuse of children: effective rehabilitation and effective prosecution.

“The prosecution of sex offenders is a critical issue for us,” McGrath said. “We’re hoping the Court makes sure our interest in seeking to rehabilitate sex offenders before they are released is upheld.”

In its decision issued in September 2000, the Tenth Circuit barred state officials from imposing any penalties on sex offenders who refused to discuss their past as part of sex-offender treatment programs. The Tenth Circuit reasoned that the threat of those penalties – including the denial of special privileges – compels prisoners to incriminate themselves and so violates the Fifth Amendment privilege against self-incrimination.

The Montana/Ohio brief challenges the Tenth Circuit’s ruling, pointing out that:

  • “Penalties,” like limiting access to televisions or exercise facilities are special privileges to which prisoners “never had any entitlement in the first place.”
  • Denying these special privileges to prisoners who choose not to participate does not compel prisoners to speak about their past crimes, or subject them to any additional penalties beyond their existing sentences. Calling these penalties “mild,” the brief argues that prisoners still have the choice to remain silent during rehabilitation sessions.
  • States have the difficult job of incarcerating and rehabilitating prisoners and existing law gives correctional officials considerable latitude in effectively accomplishing it.
  • Granting sex offenders immunity for crimes they admit during rehabilitation sessions would increase tension between sex offenders and other prisoners, and “could very well frustrate the States’ important interest in deterring criminal sexual conduct.”

The brief marks the third time in the last 10 years that a Montana Attorney General has pursued the issue of sex offender treatment to the U.S. Supreme Court. In 1992, then-attorney general Marc Racicot argued the case of State v. Imlay before the U.S. Supreme Court. The Court ultimately declined to issue a ruling. In 1996, Montana unsuccessfully asked the U.S. Supreme Court to review the Montana Supreme Court’s decision in State v. Fuller.

After briefing is complete in the McKune case, the Court will hear oral argument, likely to be set for next fall or winter.

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