- The Washington Times - Tuesday, June 11, 2002

Imprisoned sex offenders may be penalized for refusing to admit to their crimes or give details of their sexual history, including any acts for which they were never charged, a divided Supreme Court ruled yesterday.

"Acceptance of responsibility is the beginning of rehabilitation, and a recognition that there are rewards for those who attempt to reform is a vital and necessary step," said a plurality opinion written by Justice Anthony M. Kennedy joined only by Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas.

Justice Sandra Day O'Connor filed a separate opinion to provide the 5-4 majority in the case.

In upholding Kansas' policy that sex criminals must participate in treatment programs, which involve counseling, or be put in maximum security cells, the justices approved withholding "minimal incentives" or privileges for offenders who they called "a serious threat in this nation."

Robert G. Lile said Kansas violated his rights in 1994 by putting him in maximum security for refusing to sign papers admitting guilt in the rape for which he was convicted, and for refusing to detail his sexual history including identification of any other victims. He was convicted of raping and sodomizing a high school student at gunpoint.

The decision was one of six handed down as the court turned into its homestretch, with 19 cases to decide over the next two weeks including such high-profile constitutional issues as public vouchers in parochial schools, using census estimates to allocate seats in Congress, banning anonymous door-to-door solicitation, and executing murderers who are considered mentally retarded.

The judgment in the Kansas case which dissenters called a "watershed case" that curbed the "bedrock constitutional right" against self-incrimination was unusual because the split majority means no opinion provides a precedent to govern other courts.

Justice Sandra Day O'Connor's separate explanation said the Fifth Amendment "does not prohibit all penalties levied in response to a person's refusal to incriminate himself or herself."

She said the penalty of moving a prisoner to maximum security is unpleasant but only reduces visitation, canteen spending, prison wages, and the amount of personal property allowed in a cell, which she said are not "liberty interests" protected by the Constitution.

"The privilege against self-incrimination may have been born of the rack and the Star Chamber we have already said inmates do not forfeit their Fifth Amendment rights at the jailhouse gate," countered Justice John Paul Stevens's dissent, joined by Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Justice Kennedy accepted the state view, supported by the Bush administration, that sex offenders who undergo treatment are less likely to repeat their crimes. He said 80 percent of sex criminals who do not undergo treatment return to prison, compared with 15 percent of those receiving treatment.

Among other actions yesterday, the justices turned away two cases that would have reopened debate on the reach of the Second Amendment guarantee of the right to bear arms.

The cases came to public attention last month when Solicitor General Theodore Olson inserted a footnote in the reply to both appeals, saying the Bush administration believes the Second Amendment assures an individual's right to own guns. The Supreme Court's 1939 U.S. v. Miller decision held that right is part of a state's prerogative to form a militia.

"If the lower courts have been misreading Miller for 63 years the Supreme Court has had ample opportunity to correct the error. Once again, it has declined to do so," said Mathew Nosanchuk, litigation director for the Violence Policy Center.

Timothy Emerson was convicted of possessing a gun while under a domestic-relations restraining order after pointing a handgun at his wife and daughter. John L. Haney was convicted of violating federal regulations governing private ownership of machine guns.

The court agreed to decide next term a Mississippi battle over competing congressional redistricting plans that now pit incumbent Reps. Charles Pickering, a Republican, and Ronnie Shows, a Democrat, against each other because one seat was eliminated after the 2000 Census.

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