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ALBANY — New York state is suspending a highly effective sex offender counseling program in the wake of an “outrageous” federal court ruling that the prison program violates the constitutional right against self-incrimination, Corrections Commissioner Glenn S. Goord said yesterday.

In a statement harshly critical of a recent ruling by U.S. District Judge David N. Hurd, Mr. Goord said the order “effectively guts the program” and essentially gives sex offenders inappropriate veto power over their rehabilitative treatment. He said an alternative program will be used while the ruling is challenged.

Last month, Northern District Judge Hurd found that the Sex Offender Counseling Program, which requires prisoners to acknowledge the conduct that landed them in prison and to divulge information on uncharged sex offenses, violates the Fifth Amendment to the extent that inmates are denied good-time credit for refusing to self-incriminate. In light of Judge Hurd’s ruling in Donhauser v. Goord, 01-CV-1535, officials yesterday decided to suspend the program statewide.

“The judge’s order places me in a very difficult position,” Mr. Goord said in the statement. “I realize the need to make inmates participate in a meaningful sex-offender program to protect the public upon their release. But, at the same time, it would be a sham to deconstruct the program by allowing inmates to control how the program operates.”

Mr. Goord suggested the court placed “a perceived Fifth Amendment right above the public’s safety.” He said the Department of Correctional Services will seek a stay from the U.S. Court of Appeals for the Second Circuit.

Mr. Donhauser, 36, was convicted of rape and burglary after entering a plea under North Carolina v. Alford, 400 U.S. 25 (1970). Under Alford, a defendant is allowed to maintain factual innocence by acknowledging that the prosecution could likely prove the pending charge. Mr. Donhauser is serving a 3-to-6 year prison term for crimes committed in western New York.

As a sex offender inmate at the Oneida Correctional Facility, he was referred by a counselor to the facility’s Sex Offender Counseling Program (SOCP).

The program mandates that participants accept responsibility for the conduct that led to their incarceration and also requires the inmate to reveal his or her history of sexual offenses, whether those acts led to criminal charges or not. Counselors are required to report evidence of uncharged acts of sexual or physical abuse involving children.

Mr. Donhauser complained that the SOCP requirements are inconsistent with his Alford plea and would force him to admit in a counseling program to acts he never admitted to in court. He also invoked his Fifth Amendment right against self-incrimination and refused to disclose information about uncharged crimes.

Last year, then-magistrate judge and now Northern District Judge Gary L. Sharpe recommended dismissing Mr. Donhauser’s claim in its entity. Judge Sharpe relied primarily on the U.S. Supreme Court’s 2002 ruling in McKune v. Lile, 536 U.S. 24, and the Second Circuit’s 1997 opinion in Johnson v. Baker, 108 F.3d 10.

McKune involved an inmate who refused to take part in sexual offender treatment program and the consequences of that refusal. Johnson involved a prisoner who was denied participation in a family reunion program because he would not admit to sex offenses. In both cases, the prisoners’ challenges were rejected.


Judge Hurd distinguished Donhauser from both McKune and Johnson. While Messrs. McKune and Johnson may have faced loss of privileges, Mr. Donhauser’s assertion of Fifth Amendment rights affects his term of incarceration and therefore directly implicates a liberty interest, Judge Hurd said.

“[R]equiring plaintiff as part of the [counseling program] to divulge a history of sexual conduct, including illegal acts for which no criminal charges have been brought, or else face the loss of good time credits, violates his Fifth Amendment privilege against self-incrimination,” Judge Hurd wrote.

Judge Hurd found that prisoners cannot complete SOCP without incriminating themselves, and failure to complete the program apparently results in loss of good-time credits. Although no prisoner has ever been prosecuted after revealing incriminating information during the course of the counseling program, that potentiality infringes on the Fifth Amendment, the court found.

“[I]t would be an unfair double-dipping to permit the state, on one hand, to require a waiver of the Fifth Amendment privilege under the guise of rehabilitation, while on the other hand to transform its interest into criminal investigation once it felt, in its judgment, that a particular statement required prosecution,” Judge Hurd said.

Mr. Goord noted that the state routinely imposes loss of good time on prisoners who refuse to participate in other assigned programs, such as drug treatment, vocational training and academics. The commissioner said Judge Hurd’s ruling “strikes at the heart of our ability to manage the system if inmates can dictate the terms under which they participate in programs that we deem necessary for them to have any chance of a successful return to our streets.”

Remedy Rejected

The court offered the state a remedy — which Mr. Goord flatly rejects.

Judge Hurd said the defect could be cured simply by offering an inmate “use immunity” and guaranteeing that the prisoner’s in-counseling statements and information derived from those statements would not be used for a future prosecution. The state would still be able to conduct an independent investigation and bring charges based on that probe, Judge Hurd said.

“Granting program participants use immunity for any statements they make in the course of [the counseling program] is an obvious, easy alternative that imposes a de minimis cost, if any, on the state’s valid penalogical interests,” Judge Hurd wrote.

Mr. Goord strongly disagreed, claiming “use immunity places an intolerable burden” on prosecutors.

“I will not grant inmates ‘use immunity’ that is tantamount to a ‘stay out of jail card’ complicating attempts to convict them of other crimes,” Mr. Goord said. “Use immunity grants inmates a sword with which to fight prosecution rather than a shield protecting their rights.”

The state continues to cite McKune and Johnson as on-point authority.

“We are looking at avenues of appeal that we think are pretty clear because the judge’s decision is at odds with prior decisions made by both the Second Circuit and the U.S. Supreme Court,” said James Flateau, spokesman for the Department of Correctional Services.

Assistant Attorney General Nelson Sheingold defended the state defendants.

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