AELE LAW LIBRARY OF CASE SUMMARIES:
Corrections Law for
Jails, Prisons and Detention Facilities
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Therapeutic Programs
See also: Sexual Offender Programs
& Notification
Indiana mandates that all prisoners convicted of a sex offense complete
the Sex Offender Management and Monitoring (INSOMM) program. INSOMM requires
inmates to identify which illegal sexual acts they committed and how often.
Based on their offense history, participants are sorted into risk groups for
group therapy sessions. Those in the higher risk groups must complete more
hours of therapy. In therapy, participants are required to fill out workbooks
in which they describe all past acts of sexual violence and abuse, regardless
of whether they were ever charged for those offenses. Participants enjoy
neither immunity nor confidentiality for the disclosures made. They may not opt
out of any part of the program and must respond fully to all questions. A
counselor who suspects that a participant has been deceptive or less than
forthcoming may order polygraph testing. Failure to participate satisfactorily
in INSOMM is a Major Conduct disciplinary violation. For a first offense,
inmates are denied the opportunity to accrue good time credits to which they
would otherwise be entitled by law. Continuing violations are punishable by
revocation of already acquired good time credits. The plaintiff prisoner filed
a class action lawsuit against these aspects of the program. A federal appeals
court ruled that the disclosures required by INSOMM and the penalties imposed
for non-participation, taken together, amounted to a violation of the Fifth
Amendment right to be free from compelled self-incrimination. Lacy v. Butts, #17-3256, 2019
U.S. App. Lexis 12414, 2019 WL 1858276 (7th Cir.).
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).