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An Outer Edge to Johnson v. Fabian?

By Eric L. Lipman

In an interesting, and no doubt important ruling in Minnesota?s development of the law on the right to avoid self-incrimination, a panel of the Minnesota Court of Appeals has turned away the Fifth Amendment challenge of a civilly-committed sex offender, Brad Ronald Stevens.

Stevens challenged the continuation of his involuntary civil commitment in the Minnesota Sex Offender Program on the grounds that sex offender treatment in MSOP obliges him to both discuss the specifics of prior offenses and forfeit his right against self-incrimination.

Disagreeing, the appellate panel, in an unpublished opinion issued on Tuesday, held that because Stevens could acknowledge past misconduct during treatment without disclosing incriminating details to government officials, he had not ?demonstrated that he must necessarily incriminate himself to participate in treatment or that he has suffered any consequences related to a failure to self-incriminate.?

Likewise important, the panel distinguished extensions of the length of a term of incarceration for determinately-sentenced prison inmates who refuse to participate in sex offender treatment, as was the case in Johnson v. Fabian, and extending the length of treatment for an involuntarily and indefinitely-committed Sexually Dangerous Person. As the panel concluded: ?Although the treatment consent form makes it clear that failure to participate in treatment will prolong a patient?s stay at MSOP, participation in treatment does not guarantee release. Unlike the [Department of Corrections] inmates in Johnson, whose period of incarceration was extended as discipline for failure to consent to treatment, extended commitment is not imposed as discipline for refusing treatment at MSOP.?

The panel?s complete analysis is accessible here.

Full post as published by Within the Scope on July 03, 2008 (boomark / email).