Corrections Law
for Jails, Prisons and Detention Facilities

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Therapeutic Programs

See also: Sexual Offender Programs & Notification

     A federal appeals court has overturned a trial court’s dismissal of a former inmate’s lawsuit claiming that she was psychologically traumatized by being forced to undergo sexual shame therapy while incarcerated. The appeals court ruled that it was erroneous to deny as futile the plaintiff’s request for leave to amend to include new assertions when she may be able to allege that she was unaware of her injuries until sometime after she stopped participating in the therapy sessions, and she may have reasonably viewed the embarrassment and humiliation she felt as the ordinary, and therefore not harmful, response to the therapy. Gregg v. Hawaii DPS, #14-16785, 870 F.3d 883, (9th Cir. 2017).

     A man served a sentence for attempted sexual abuse and then was placed on probation. He was required to enroll in a sex offender treatment program while on probation and was refused admission to the program since he refused to admit his guilt before the program began and instead invoked his Fifth Amendment privilege against self-incrimination. When his probation was then revoked, he sued his probation officer and therapist. The trial judge, screening the pro se in forma pauperis complaint, dismissed the lawsuit on the basis of qualified immunity. A federal appeals court reversed and remanded for further proceedings because the facts alleged in the complaint did not foreclose the possibility that the plaintiff could have overcome qualified immunity. Chavez v. Robinson, #14-35384, 2016 U.S. App. Lexis 5765 (9th Cir.).
     A $1.925 million settlement has been reached in a case in which an atheist parolee was jailed after he complained about being compelled to participate in a faith-based drug rehab program that violated his beliefs. He served a year in prison on a narcotics conviction and was initially released on parole, but had that parole revoked following his complaints to parole officials about having to participate in a drug recovery program that would require him to acknowledge the existence of a "higher power." His lawsuit, filed after serving an additional three months in prison, sought damages from both the California Department of Corrections and the private substance abuse firm the state contracted with to carry out drug treatment programs for parolees. The state will pay the plaintiff $1 million under the settlement, while the private firm will pay $925,000. The California Department of Corrections also issued a directive that parolees who object to faith-based treatment programs should be referred to nonreligious programs. Hazle v. Crofoot, #2:08-cv-02295, U.S. Dist. Court, (E.D. Calif. Oct. 14, 2014). In a federal appeals court case prior to the settlement, Hazle v. Crofoot, #11-15354, 727 F.3d 983 (9th Cir. 2013), the court held that the plaintiff was entitled to compensatory damages because his First Amendment rights to religious freedom were violated when his parole was revoked because he refused to participate in the residential drug treatment program. He should have been granted a new trial after a jury awarded him nothing, the court ruled.
     A man civilly committed as a sexually violent person and residing in a Treatment and Detention Center claimed that his First Amendment rights to free speech were unreasonably restricted when he was denied access to certain video games and movies, specifically unrated media. Rejecting this claim, an intermediate state appeals court found that the defendant Center had legitimate security and rehabilitative interests in promoting a therapeutic environment and that this interest was promoted by barring the plaintiff's access to games or movies that could encourage antisocial behavior or sexual deviance. Schloss v. Jumper, 2014 IL App (4th) 121086, 2014 Ill. App. Lexis 379.
     An atheist prisoner left a substance abuse program with required meetings and which invoked religious tenets by using a "serenity prayer" and religious meditations. He claimed that he was then denied early release on parole for failure to complete the program, and that this violated his First Amendment rights to religious freedom. A federal appeals court held that these allegations adequately stated a claim for an Establishment Clause violation, and the personal involvement of two defendants that could be a basis for their liability. He had not, however, so far alleged facts sufficient to establish the personal involvement of a third defendant. Jackson v. Nixon, #12-2531, 2014 U.S. App. Lexis 5721 (8th Cir.).
     An atheist parolee was entitled to compensatory damages when the court found that his First Amendment rights to religious freedom were violated when his parole was revoked because he refused to participate in a residential drug treatment program that contained a requirement that he acknowledge the existence of a higher power. He suffered the injury of imprisonment as a result, and should have been granted a new trial after a jury awarded him nothing. A claim for injunctive relief was not moot as there appeared to have been no steps taken to provide an alternative non-religious program. Hazle v. Crofoot, #11-15354, 2013 U.S. App. Lexis 17663 (9th Cir.).
     A prisoner was removed from a prison's substance abuse program after he took a towel from the prison property room. This failure to complete the program meant that he had to finish serving his 15-year sentence, rather than being eligible for earlier release on probation. The court ruled that this did not violate his rights, since he had no constitutionally protected liberty interest in sentence reduction. Persechini v. Callaway, #10-1867, 2011 U.S. App. Lexis 16417 (8th Cir.).
     A Wisconsin inmate claimed that his due process rights were violated by compelling him to undergo unnecessary substance abuse treatment. After he was sentenced to 20 years for a burglary crime, a screening found him not to be in need of substance abuse treatment, but he was ordered to undergo it anyway, since he had not completed a mandatory substance-abuse program while serving a prior sentence for a drug offense. A federal appeals court ruled that the plaintiff failed to show that he faced consequences sufficient to deprive him of a constitutionally protected liberty interest.  By refusing treatment, he did face significant consequences, including a diminished chance of discretionary parole, work release, better custody classification, and transfer to institutions that he apparently regarded as better facilities. "Such privileges, however, are not protected under the Constitution." Additionally, as for his argument that he "faced stigma" from being labeled substance-dependent, "that label alone is insufficient to affect a liberty interest." Knowlin v. Heise, #10-3288, 2011 U.S. App. Lexis 8792 (Unpub. 7th Cir.).
     A prisoner failed to show that he had a protected liberty interest in not participating in an alcohol treatment program. His required participation related to a legitimate penological interest. The prisoner failed also to show a violation of his equal protection rights, as the requirement to participate in the clinical rehabilitation program applied to all prisoners with a history of drug and alcohol abuse. Walter v. Fischer, #09-4365, 2010 U.S. App. Lexis 18939 (Unpub. 2nd Cir.).
     A prisoner claimed that the federal Bureau of Prisons' Residential Drug Abuse Treatment Program (RDAP) discriminated against him in violation of his equal protection rights because some individuals sentenced to less time received a greater percentage reduction in their sentences for participation than he did. Upon completion of the program, a prisoner is eligible for a 6 month reduction in their sentence if sentenced to 30 months, 9 months reduction for sentences of 31 to 36 months, and one year reduction for longer sentences. The plaintiff was eligible for the one year reduction, and was essentially complaining that prisoners with shorter sentences were having a greater percentage of their sentence reduced. The court found no equal protection violation, as the classification involved did not implicate either a fundamental right or a protected class. The defendant agency could rationally decide that a smaller percentage reduction in the sentences of those serving shorter sentences would not encourage them to participate in a treatment program that takes a significant time to complete. Martinez v. Davis, #10-1092, 2010 U.S. App. Lexis 17782 (Unpub. 10th Cir.).
     Further proceedings were ordered on a secular humanist group's complaint, asserting that the use of state funds to pay two ministries for substance abuse transitional housing programs for prisoners violated the no aid to religion provisions of the Florida state constitution. On remand, the plaintiffs have to establish that the nature and effect of the programs are "primarily sectarian" in order to prevail. The court further held, however, that the state's employment of a chaplain and use of public funds to pay him did not violate either the Establishment of Religion clause of the First Amendment to the U.S. Constitution or the no aid to religion provisions of the Florida state constitution. Council for Secular Humanism, Inc. v. McNeil, #1D08-4713, 2009 Fla. App. Lexis 19498 (1st Dist.).
     A prisoner who was not convicted of a felony under New York Penal Law art. 220 (controlled substances) or 221 (offenses involving marijuana) and was not eligible for temporary release, was also not eligible to participate, at his request, in a comprehensive alcohol and substance abuse treatment (CASAT) program during his incarceration, since he did not meet the eligibility requirements under Penal Law Sec. 60.04(6). Blake v. Dept. of Corrections, No. 504009, 2008 N.Y. App. Div. Lexis 6612 (A.D. 3rd Dept.).
     Convicted sex offender civilly committed to a special treatment unit under a New Jersey Sexually Violent Predators Act failed to show a violation of his Fifth Amendment constitutional right against self-incrimination by the requirement that he disclose, during the therapy, past criminal sexual acts he had committed, even if he suffered penalties, such as the withholding of certain privileges and placement in "treatment refusal status" when he refused to make such disclosures. The court further held that, even if the plaintiff had a right to remain silent about such past crimes, which was not certain, any such right was not clearly established, so that the defendants would be entitled, in any event, to qualified immunity on his Fifth and First Amendment claims. Aruanno v. Spagnuolo, No. 07-4276, 2008 U.S. App. Lexis 15123 (Unpub. 3rd Cir.).
     The Bureau of Prisons (BOP) did not act in an arbitrary or capricious manner in failing to give an inmate, previously incarcerated at a contract correctional facility, with credit for his participation in a drug treatment program there. He argued that this completion of that program should be viewed as the equivalent of completion of the first step of the BOP's three-step drug program. Further, the BOP had actually not yet decided whether the inmate was eligible to participate in its drug program, and its policy was that such determinations were made 36 months before a prisoner's release, a point in time that the plaintiff prisoner had not yet reached. Davis v. Federal Bureau of Prisons, No. 07-201, 2008 U.S. Dist. Lexis 13872 (D.D.C.).
     The federal Bureau of Prisons failed to provide a valid rationale for categorically excluding prisoners convicted of offenses involving the carrying or possession of firearms or explosives from eligibility for early release under 18 U.S.C. Sec. 3621(e) if they successfully completed a residential substance abuse program. Such a rationale, the court found, was required under 5 U.S.C. Sec. 706. The court found that the BOP's promulgation of its final rule on the matter was "arbitrary and capricious" in the absence of a stated rationale for categorical exclusion of a "class of nonviolent offenders" from being eligible for early release. The appeals court ordered the trial courts, in the consolidated cases, involving petitions for writs of habeas corpus filed by prisoners excluded from eligibility, to "grant the habeas corpus petitions." Arrington v. Daniels, No. 06-35855, 2008 U.S. App. Lexis 3510 (9th Cir.).
       Even though a rehabilitation program called the Alternatives to Violence Program was "rooted in" Quaker philosophy, it was a secular rather than religious program, so that the recommendation, by a prison, that a prisoner participate in the program did not violate the Establishment of Religion clause of the First Amendment. Bader v. Wren, Civil No. 06-CV-137, 2008 U.S. Dist. Lexis 6952 (D.N.H.).
     Federal appeals court overturns decision granting qualified immunity to parole officer who allegedly required parolee with methamphetamine addiction to participated in a religion-based drug treatment program over his objections. The appeals court found that the law on the issue was clearly established, and that a jury could conclude that the parole officer actually had notice that his actions were unconstitutional because of the parolee's letter objecting to compulsory placement in the program. Inouye v. Kemna, No. 06-15474, 2007 U.S. App. Lexis 23106 (9th Cir.).
     Requiring an inmate to participate in a sex offender treatment program, which required him to attend explicit group discussions of a sexual nature and view certain images, did not violate his First Amendment rights, based on the "vital" public and governmental interest in rehabilitation of convicted sex offenders. Additionally, even if an individualized sex offender treatment program existed which would have met the plaintiff's objections, it would have "unduly depleted" the prison's resources to provide it. The court failed to rule on the prisoner's objection to participation in the program under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C.S. § 2000cc et. seq. on the basis of the defendants' claim that they had not had sufficient opportunity to respond to that claim. Schnitzler v. Reisch, No. Civ. 06-4064, 2007 U.S. Dist. Lexis 72938 (S.D.).
     Convicted sex offender did not have a constitutional right to rehabilitative sex offender treatment, and the prisoner's claim that the failure to provide him with such treatment violated the terms of his plea bargain agreement could not be a basis for a federal civil rights lawsuit, although it might be raised in a petition for habeas corpus. Paige v. Oklahoma Dept. of Corrections, No. 07-6101, 2007 U.S. App. Lexis 21558 (10th Cir.).
     Denial of prisoner's request that he participate in the Bureau of Prisons' (BOP) residential drug abuse treatment program constituted an abuse of discretion because of the reliance on the prisoner's failure to show that he had a substance abuse problem within the immediately preceding twelve months. This "12 months preceding" requirement, the court found, was not found in the BOP's own program statement, the regulations governing the BOP, or in the statute, 18 U.S.C. Sec. 3621e, requiring that the BOP provide residential substance abuse treatment for all eligible prisoners found to have a documented substance abuse problem. The court ordered that the BOP reconsider the prisoner's request, without using the "12 months preceding" criteria in making its decision. Smith v. Vazquez, No. CV 206-275, 2007 U.S. Dist. Lexis 40704 (S.D.Ga.).
     The fact that a prisoner's murder conviction was not related to use of drugs did not render invalid correctional officials' recommendation that he participate in a drug treatment program, in light of his past drug problems, despite his prior completion of another drug treatment program. The New York Department of Correctional Services had rational reasons to exercise its discretion in deciding that this was among his program needs. Gomez v. Goord, 2006 N.Y. App. Div. Lexis 13260 (3rd Dept.). [N/R]
     Parolee's claim that his First Amendment rights were violated when he was required, during a mandated sex offenders' program, to recite a prayer with the word "God" in it should have been analyzed under the Establishment Clause, prohibiting coercion to participate in religious activity, rather than on the basis of whether his belief that he should only say "God" while praying at home at night was a "serious" religious belief. Munson v. Norris, No. 04-3938, 435 F.3d 877 (8th Cir. 2006), rehearing denied, 2006 U.S. App. Lexis 5248. [2006 JB Jun]
     Man detained by the State of Wisconsin as a sexually violent person failed to show that he was provided with constitutionally inadequate mental health treatment. He failed to show that decisions about his treatment were either made by unqualified personnel or that his treatment was "outside the bounds" of acceptable professional judgment. Williams v. Nelson, No. 04-C-774C, 398 F. Supp. 2d 977 (W.D. Wis. 2005). [N/R]
     A one-day delay in providing pain medication to an inmate injured in an attack by another prisoner was not sufficient to show deliberate indifference to his serious medical needs. The prisoner, who received treatment by the prison doctor, and was subsequently referred to an optometrist, ophthalmologist, neurologist, and ear, nose and throat specialist, also could not show that his subsequent medical care for his injuries was inadequate. The record showed that he received surgery on his nose, pain medicine, x-rays, and a CT scan over a 3-year period of time following the incident. His mere difference of opinion concerning the proper treatment of his injuries did not show that the treatment provided was inadequate. The prisoner also failed to show that prison officials violated his rights by failing to protect him from the attack by another prisoner, which occurred during a sex offender treatment program's group meeting, since that attack was not foreseeable. Van Court v. Lehman, #04-35815, 137 Fed. Appx. 948 (9th Cir. 2005). [N/R]
     A Pennsylvania inmate could properly pursue his claim that his First Amendment rights were violated by a state parole procedure requiring him to attend a drug program based on religion and a belief in a higher power through a federal civil rights lawsuit. Should he succeed in proving his claim, this would not have shown the invalidity of either his confinement or its duration, but merely demonstrate that the parole board used unlawful factors in making a parole determination, and would have required merely a reconsideration of his parole rather than his immediate release. Accordingly, his claims were not barred under the principles set forth in Wilkinson v. Dotson, No. 03-287, 125 S. Ct. 1242 (2005), stating that a federal civil rights action concerning the unconstitutionality of state parole procedures may not be pursued under 42 U.S.C. Sec. 1983 if "success in that action would necessarily demonstrate the invalidity of confinement or its duration." Nelson v. Horn, No. 03-2284, 138 Fed. Appx. 411 (3rd Cir. 2005). [N/R]
     State prison's requirement that inmate participate in anger management class did not violate his due process or equal protection rights, or constitute an impermissible retroactive enhancement of his punishment. Stewart v. Lehman, No. 04-35342, 129 Fed. Appx. 357 (9th Cir. 2005). [N/R]
     Federal Bureau of Prisons did not violate prisoner's rights by determining that he was ineligible to enter a residential drug abuse treatment program because he had only used, but had not abused, alcohol in the twelve months prior to his incarceration. Laws v. Barron, No. CIV.A. 6:04-133, 348 F. Supp. 2d 795 (E.D.Ky. 2004). [N/R]
     Colorado prisoner had a protected property interest in being retained in a sexual offenders program when completion was required in order to be eligible for parole under his indeterminate sentence. He stated a possible procedural due process claim based on his alleged expulsion from the program without advance notice or an opportunity to be heard. Court also finds a possible substantive due process claim, ruling that the alleged conduct of expelling him from the program without notice or hearing could be viewed as an indifference to the prisoner's rights sufficient to "shock the conscience." Beebe v. Heil, No. CIV.A.02-D-1993(BNB), 333 F. Supp. 2d 1011 (D. Colo. 2004). [N/R]
     Requirement that prisoners participating in sex offender program fully disclose their past sexual behavior, including potentially prosecutable conduct, did not violate their Fifth Amendment right against compelled self-incrimination, even though the inmate's failure to participate in the program resulted in her receiving a negative parole recommendation. Participation in the program was voluntary, not compelled, and the failure to participate did not automatically deprive the prisoner of consideration for parole. Wolfe v. Pennsylvania Dept. of Corrections, No. Civ. A. 02-2687, 334 F. Supp. 2d 762 (E.D. Pa. 2004). [N/R]
     Retroactive application of a rule making a prisoner incentive program dependent on participation in a sexual offender treatment program was not an impermissible enhancement of punishment of prisoner convicted of rape and aggravated sodomy. Carroll v. Simmons, #03-3236, 89 Fed. Appx. 658 (10th Cir. 2004). [N/R]
     Requirement that prisoner participate in stress and anger management classes as a condition of early release, enacted after prisoner was sentenced, was not an improper retroactive enhancement of his punishment. In Re Forbis, No. 73381-3, 74 P.3d 1189 (Wash. 2003). [2004 JB Jan]
     Civilly committed sexual offenders can be placed in "therapeutic seclusion" either for purposes of therapy or to protect the offenders or others, but not as a means of inflicting extra punishment on them for their past sex crimes. Employees of state treatment facility were not entitled to qualified immunity on claims that they kept detainees in "seclusion" far longer than needed for reasons of therapy or security. West v. Schwebke, No. 02-4298, 333 F.3d 745 (7th Cir. 2003). [2004 JB Jan]
     Prison's interest in rehabilitation of sex offender prisoner outbalanced his limited liberty interest in refusing participation in sex offender treatment program; compelled participation did not violate prisoner's constitutional rights. Sundby v. Fiedler, 827 F.Supp. 580 (W.D. Wis. 1993).

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