sex offense or in required to take sex offender treatment without any process or a hearing for circuits of hell that in this circumstance due process including a hearing was required those holdings follow the supreme court's decision and authority to the contrary for the proposition that combination of a sex offender designation and required sex offender treatment does not create a liberty interest in particular the seven circuit case  theater is it the stigma and participation in the behavioral treatment type program sufficient yes iranian fourteenth amendment due process concerns yes your honor it's the combination of the stigma and the alteration in status required by a mandatory sex offender treatment program some cases that say you know the parole me also if if there is a denial of parole for failure to participate in the program then you basis for the liberty interest so we knew every case if you have a drug offense or a drug component to an offense the stigma and requirement to participate in some behavioral program you're entitled to notice hearing no your honor not not not enough for a drug case and i think that the stigma from a sex offender status is so particularly severe that it sets it apart from other situations of say like alcoholism or a drug conviction the stigma within the prison is extremely severe your honor i think i cited in the fact section of our opening brief there are some studies cited which found that within prison being called a sex offender is perhaps the most stigmatising label available and there's two studies one indicates that your chance of being a sexual assault victim in prison is increased by fifty percent if you are a sex offender and other found that it's increased by thirty three percent if you're a sex offender another study surveyed prisoners and asked for their views as to sort of where the prison hierarchy among prisoners people with different crimes fell it asked about six crimes that did not involve a sex offense for crimes did involve a sex offense the four crimes with a sex offense were at the bottom even notwithstanding the fact that they were sometimes in combination with another crime so for example if found that the crime that put you at the top of the prison hierarchy in combination with a sex offense would drop you below every other potential crime except for those also involving sex offenses ok let me let's move to another expression so actual component  are there any cases that discuss this at all as distinguished from a sexual offense no your honor i think that's that's i really think an invention by defendants first in the trial court and then here just for the purposes of this litigation that language doesn't appear in any of the department's policies it doesn't appear in any of the cases nor was there in fact a sexual component to run chance he's crime he was convicted of murder no sexual component was charged in the charging documents let me ask you this in the autopsy going back to the murder case the the basis of the sexual component was that his his his disturbing the genital area and the breast was that anti anti you know for after  why you know that that autopsy report your honor on the corners report has never been subject to any challenge or scrutiny it's sitting there on the record but it's scrutiny of that which is what we're asking for in this in this proceeding so i really couldn't tell you anything more about that autopsy report then then what you see on the page what type of hearing what type of scrutiny you contend should be and eleventh circuits so since that's where the analogy comes from bats that's the most closely a point on points are important how far we have supposing that they could have three burglaries and the reason for the conviction is because i need money to buy drugs so i i can be stigmatizes a dope addict in prison and i'm required to undergo drug treatment under the administration now do i have fourteenth amendment due process you rights no i don't your honor i think drug treatment is just being a drug addict there's so much for less they're much nicer and frankly in a prison contract probably so much more common than being a bi than being a sex offender the sex offender stigma of being a sex offender is perhaps the the highest possible st the murder itself ok all right you know it is i understand your brief that in the process of this sex offender treatment you appeal and on retrial so that's the basis for our claim and just essentially the only issue in dispute here under your honor as i understand it is that is the question of whether the consequences imposed on him for refusing treatment rise to the level of record of this case they have repeatedly told him that he is required to set sex offender treatment if you look at their own disciplinary policy it imposes several very substantial penalties for refusing to take treatment  may please the court my name is howard hopkirk i'm a senior deputy attorney general with the pennsylvania office of attorney general i represent the pallies in this case the pennsylvania department of corrections and the name present allow reintegration of the inmates back into society that accurate that would be a primary purpose to my purpose there is also i mean he's going to be living in the prison system for quite some time but it was just getting started over eleven years ago and he wasn't treated well i mean why go from the record why this person why in the year two thousand and he has to undergo sex and treat well i think that the psychologist john seidler his declaration is in the record that's the major piece of evidence and he goes over why without possibility of parole you sir are a senior deputy attorney general i'm speaking only for myself but i think that this is a case the that we will have to make some decisions that maybe we should not have with respect to sexual  saying twenty five years then do this i think society and the corrections department would be better off if we let this go away and you s that they terminate their efforts to have him participate in this program have you ever done that i say that to you because you are senior  you can evaluate you can evaluate how the questions are coming to you and so forth it well i think i think everybody would be served to have this thing go away front part of the government for i mean we certainly have dialogues with the department of corrections in in this case we believe it's the professional judgment of the department and that they think this type of treatment is appropriate even for somebody who's been in prison as long as mr wrenn chancy and and he has in the record he has refused this type of assessment and treatment in the past so to say that it's you know at this point if we're just getting around to giving him cretin is not completely true i would also i'd also like to point out that it's our position that this is legally from a from a mccune supreme court decision standpoint whether you look at justice o'connor's decision whether the plurality decision in that case that this is a voluntary choice by mr rum run chance ski and so if he chooses as he has up to this point not to participate in sex offender treatment programs then that is a voluntary choice so it is not  know is it really a choice that he has doesn't he said jack themselves to a number of penalties institutional penalties for not cooperating or participating in a program that the apartment of sanctions at all is it that your representation if he chooses not to participate program i can't speak to that for the for the future but what i can say is well that he he we can consider the sanctions that might be yes and those things were dressed in mccune and they said that didn't rise to the level of compulsion all that and if the men and it also doesn't understand then doesn't rise to the level of a property where liberty protected property or liberty interest now i would say i don't think that we're talking about choice not the amendment issues well the fifth amendment is wrapped around the question of of choice and whether i mean people are faced with different choices but the question is is it a compelled to ace but then if you say if you say it's if you're looking at the fourteenth amendment you look at what are the deprivations which he feels he faces me ask you a direct question concerning the fourteenth amendment and in that the chair case in the tech the prisoner was classified as mentally ill and then forced to undergo behavior modification and those two factors alone were sufficient in th case and two to raise liberty interest and that's different from in this in that case he was removed from the prison and for he did not have any type of choice whatsoever he was removed and that's what was done to him in this case he doesn't have to participate a well you know he there it's there are sanctions in the future there are the possible sanctions in the future but there's nothing in the record which shows that they would rise to the level of of a protected property liberty interest this case was brought and the the allegations mr wrenn chancy raised below were all centered around the stigma of having to participate the these issues regarding loss of employment and possible other sanctions for failing to participate that's something that's been brought up after summary judgment there is no evidence that that would happen and from two thousand and from two thousand and seven is that that would not but you but then the courts putting itself making advisory opinions if in the future it turned out that he received the saying that was a protected property that in the uk they protected property interests at that point he you might be able to say due process attach but even the misconducts which which on the other side talks about if he was given one of those misconduct he would have a hearing in front of a hearing examiner and he would be to raise you know the he could raise the issue that way i should really shouldn't be in this program and then if somehow i mean that we're going to result satisfactory sack satisfactorily then maybe he would have a valid lawsuit to raise that claim at that point john to sir let me get back to the fifth amendment that you are going between this theory or court pennsylvania and the supreme court apparently there's something hanging out there but it's my understanding and i don't know or i read one of the briefs but the whole purpose of the sex offender program is to have the prisoner admit to his wrongdoing and and then it's like steps and  because to participate you have to admit now i go back to my other things that as i understand it what what the dirty problem of correction says we want him to apply but he doesn't have to go through with it tell me about what is what is the status of that now how is that the difference between  you briefed that he doesn't have to participate all he has to do is something else what is the well they want him to submit to being evaluated and i that there's not a major and i don't even know if that's a legally significant is speech what distinction there but that's the posture of what they want him to do but it's our position it's my position  one step further though they says you don't have to do anything more do they not say that this summit he has he has a correctional plan this sex offender treatment program is one part of this correctional plan along with you know might have anger management classes it might have you know make sure you keep yourself clean all sorts of different things and to make those that correctional plan here is in a sense required to do this by not doing it he doesn't meet that plant evaluation to determine whether he qualifies for or he should get treatment or to determine how had the sex offender he is or the intensity of the program it's not clear or i don't think it's clear in the record but if the major point is to a value w type of level how much of them of the program he would require although the psychology department at any time could decide where you don't need this program at all as best you can determine th department of corrections wants him to undergo this program that that is the present status of things but going back to the fifth amendment but the position is that he wasn't required to say anything because he can choose not to participate now that might have some consequences or he might not be entitled to certain privileges but under the mccann case in less the other side can show general says that we thought about this and we brought the action but we have an old cranky old judge and he has some ideas on this and that if if if if that is a fifth amendment situation about admitting to an event that he is his has been and been in the supreme court then up to the supreme court it's back to the superior court now going up to the supreme court again why should we get involved in these circumstances i think i think that that's the best solution to this case i've got a couple of questions you stated process no your honor and i believe that the reason is if you're outside the prison context you rely on a job for were in and shelter and everything like that but in prison your basic needs are taken care basically adopted the same tin approach and it's justice o'connor it's her fifth vote so i think you can get guidance from the plurality decision even if it might not be  that area by think outside of the fifth amendment context but just as a connor would agree that due process would not apply so she's looking at the compulsion issue hooker thank you very much ok thank you and you know i just i think if you look at judge easter brooks opinion in the ground near decision i think i would disagree with analysis of the other side but it's pacifically talks about a crime where there's a sexual component but the person of interest convicted of the sexual crime theodore thank you your honor to start with i would like to i'd like to address the argument that the compulsion and particularly the consequences of refusing sex offender treatment were not raised below looking it  in addition to the constitutional ramifications there are collateral consequences if the plaintiff physically attended any of the sex offender programs which requires participation which includes admitting guilt discussions of sexual history et be refused from the program for refusal to participate and sanction for that nonparticipation sanctioning would include loss of the plaintiff's job which is his only source of income consequently severely hampering his ability to litigate this and his criminal case so i think he clearly raised the loss of his job in addition he repeatedly raised in many many instances the compulsion under the self incrimination clause of the fifth amendment and i would also note that this court relaxes the waiver rule in the context to see the evidence before the hearing an opportunity to challenge it to give his own testimony and present his own and present his own evidence and share so in essence it he would have the opportunity to show two things one sort of  factual he will be very much to it because he says he can do it you're right that is correct but i think you would have an opportunity to sort of and to cross examine you know and challenge the coroner's report as well as as well as to argue that under the this is ben twenty five years he's never getting out of prison and less of course is found to be innocent of the whole thing to start with and in those twenty five years there's no allegation that he caused any sexual trouble in prison there's no there's no allegation  of any need for this program because of his nerves in prison so in this sense he's never going to get out there's no need for this program in order to protect society do you think he's being singled out for some reason or or are all all inmates who have had singled out i think if you look at the record what happened here was essentially he didn't get along with about what sort of an ordinary block counselor defendant williams defendant williams than most marked him down for a host of programs not only sex offender programs he added just a whole list of programs to his correctional plan three of which were these three sex offender programs and then that decision has just been sort of rubber stamped at each at each level up the prison hierarchy he complain psychologist and and said look he just said that he was going to affirm defendant williams decision to add a quote sex offender status so the bottom this is a disagreement with an ordinary black councilor which i think sort of the wall prison officials to sign that they need to back each other up and you can see it and be consistent with each other has deprived him of any real opportunity to challenge it or have a decision by someone who's a specialist in these sorts of issues as opposed to an ordinary prison guard and the other the other thing i would mention just because the apple is argued what appears to be something similar to rightness is that in this case as you note sanctions are threatened by the policy these are very severe sanctions the administrative policy specifically suggests that he says that he can have ninety degrees days of disciplinary custody and loss of his job they don't disavow the us and me let me ask you another clip if there were a hearing on the issue of sexual offender would it be determined one was here a sexual component  and to an argument based on that he doesn't fit treatment based on their own policy you don't have to be convicted of a drug offense in order to be compelled to participate in drug treatment that you do not your honor but again i think that's just because the stigma of being a drug offender is so much less than the stigma of being a sex offender but it doesn't rise to the level of a protected liberty interest of a new process going to it or thank you very much for your argument and hopkirk thank you very much will take the case in their are you a court appointed yes i am your honor well thank you very much for volunteering your services i agree with judge what is this is very well briefed and well argued but both