Pool v. McKune
| Decision Date | 16 July 1999 |
| Docket Number | No. 324, No. 325, No. 744, No. 475, No. 859., No. 535, No. 327, No. 733, No. 79, No. 323, No. 328 |
| Parties | CHARLES POOL, et al., Appellants, v. DAVID R. McKUNE, Warden and CHARLES E. SIMMONS, Secretary of Corrections, Appellees. |
| Court | Kansas Supreme Court |
Charles J. Cavenee, of Lansing, argued the cause and was on the briefs for appellants.
Timothy G. Madden, of Kansas Department of Corrections, argued the cause and was on the brief for appellees.
The opinion of the court was delivered by
The petitioners are convicted sex offenders serving time at the Lansing Correctional Facility (LCF). They appeal from a district court decision holding that plethysmograph testing as a component of the Sexual Abuse Treatment Program (SATP) did not violate their constitutional rights under the Fourth or Fifth Amendments to the United States Constitution. All cases involving these questions are consolidated for purposes of this appeal. We dismiss in part and affirm in part.
LCF administrators determine which inmates must participate in the SATP. Initially, the Reception and Diagnostic Unit (RDU) determines participation, and the LCF administrators review the determination. Occasionally, LCF administrators "modify" determinations made by the RDU. Once LCF selects an inmate to participate in the program, it notifies the inmate of the decision. If the inmate refuses to participate, LCF administrators may impose certain sanctions discussed below. The SATP is designed as an 18-month program with three phases. The first phase lasts approximately 3 months and consists of evaluation, assessment, and treatment. Treatment involves group therapy sessions with a group leader and other sex offenders. Participants are expected to accept responsibility for the offending behavior and develop empathy for their victims. Program administrators ask participants to complete an "Admission of Responsibility" form in which they must detail their offending behavior. Polygraph testing is used to evaluate whether a participant has been forthcoming in sharing past offenses with his therapist and his therapy group. SATP administrators also subject participants to plethysmograph testing during this first phase as a means of identifying deviant sexual behavior cycles.
The second phase of the SATP lasts approximately 12 months and consists of intensive therapy. Participants are videotaped while in group therapy. Participants complete a variety of projects including writing a general autobiography and a "sexual" autobiography, listing past partners, and describing experiences. Inmates are asked to identify and discuss their deviant cycles. As part of this phase, inmates keep a journal.
The final phase consists of transitional and aftercare planning over 3 months. Participants must demonstrate genuine remorse for their offenses and release treatment information for parole planning and aftercare. Participants agree to and undergo follow-up polygraph and plethysmograph testing.
During the program inmate participants are asked to sign a variety of release forms relating to different aspects including polygraph examinations, plethysmograph testing, videotaping of group therapy sessions, and distribution of treatment information. If the inmate agrees to participate but refuses to complete any part of the program, the inmate fails the SATP.
Kansas Department of Corrections Internal Management Policies and Procedures (IMPP) Rule 11-101 (1998) and LCF General Order 19,103 establish the sanctions imposed for refusing to enter or failing to complete the SATP. IMPP 11-101 implements a statewide incentive level system which ties inmate privileges to participation in programs and good behavior. LCF General Order 19,103 states that inmates who decline program assignments shall be immediately classified as "unassigned for cause" and dropped to Level 1, the lowest incentive level. Inmates unassigned for cause may be subject to reduction of canteen privileges, moved to the LCF maximum security facility, refused employment within the facility, and denied incentive pay. In certain circumstances, good time credits may be withheld for refusal to participate in the SATP.
A plethysmograph is an electronic testing device used to measure and record male physiological responses to certain sexual situations. The testing involves a metal band placed around the inmate's penis. The inmate listens to audiotapes of various sexual scenarios. Wires running from the metal band sense changes in penis circumference and record the changes in graph form as the inmate listens to the tapes. A lab technician also takes a skin response reading from sensors attached to the inmate's fingers.
The testing procedure requires the inmate to measure the circumference of his penis in a private restroom by marking a piece of paper wrapped around the flaccid shaft. The lab technician uses this measurement to determine the size of the metal band and provides instruction on how to place the metal band. The inmate places the gauge on himself.
The testing is conducted in a private room with only one door. The inmate is seated in a recliner behind partitions; the technician remains in another room throughout the process. The participant wears a headset in order to communicate with the technician. At the very least, the inmate must pull down his pants and undergarments as far as his upper knees to ensure proper placement of the gauge.
The participant listens to 21 audiotapes of various sexual situations involving other people of different ages and sexes. The participant presses a "self report" button once or twice in answer to certain commands given by the technician through the headset. The button ensures the participant's attention and allows the participant to answer questions about whether the particular scenario involves consensual or nonconsensual activity. Plethysmography is used to identify sexual deviant cycles that may or may not be within the grasp of the inmate by detecting penile arousal patterns and other physiological changes occurring in response to the audiotape. Lab technicians usually administer the plethysmograph test twice during the SATP; once during the beginning of the first phase, and once near the end of the final phase. Plethysmograph test results are kept in separate files away from the participants' general treatment files. However, the files are available for inspection by prison personnel. Test results are also shared with and discussed among program administrators and may be discussed in group therapy sessions.
Each petitioner is a convicted sex offender. Each filed a virtually identical petition for writ of habeas corpus with the district court alleging coercion to participate in the SATP and loss of privileges for refusal to participate. Each alleged that the SATP violated his constitutional rights under the Fourth and Fifth Amendments to the United States Constitution. We dismissed all Fifth Amendment claims because they have been resolved by our decisions in Bankes v. Simmons, 265 Kan. 341, 963 P.2d 412 (1998); Stansbury v. Hannigan, 265 Kan. 404, 960 P.2d 227, cert. denied 142 L. Ed.2d 567 (1998); and Vinson v. McKune, 265 Kan. 422, 960 P.2d 222 (1998). We therefore deal only with petitioners' constitutional claims under the Fourth Amendment to the United States Constitution.
Although it is not entirely clear, either from the record or from the petitioners' written response to questions posed by the court during oral argument, that all petitioners have suffered sanctions for refusal to participate in the SATP, at least three petitioners fall into this category. Given the nature of the sanctions imposed for failure to participate, it is clear that sufficient compulsion for participation exists to provide standing for the affected petitioners to raise their constitutional claims. Thus, the issues raised by this consolidated appeal concerning the right of privacy under the Fourth Amendment are ripe for resolution.
Convicted prisoners do not forfeit all constitutional protections because of their conviction and confinement. Bell v. Wolfish, 441 U.S. 520, 545, 60 L. Ed.2d 447, 99 S. Ct. 1861 (1979). For example, with some restrictions, "prisoners enjoy freedom of speech and religion under the First and Fourteenth Amendments" as well as protection "against invidious discrimination on the basis of race under the Equal Protection Clause of the Fourteenth Amendment." They may also "claim the protection of the Due Process Clause to prevent additional deprivation of life, liberty, or property without due process of law." Bell v. Wolfish, 441 U.S. at 545.
However, lawful incarceration often results in withdrawal or limitation of many privileges and rights that would otherwise be accorded any citizen.
(Emphasis added.) O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 96 L. Ed.2d 282, 107 S. Ct. 2400 (1987).
An inmate retains no right of privacy under the Fourth Amendment in the cell he or she occupies. However, inmates generally retain a privacy interest in the integrity of their own person. See Hayes v. Marriott, 70 F.3d 1144, 1146 (10th Cir. 1995). Courts have recognized that the Fourth Amendment right...
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