or be denied treatment congress passed to subject prisons to the highest form of scrutiny known to american law when they forced prisoners like mr robinson to make these choices and mr robinson was forced to make this choice and the denial of treatment and subsequent mis classification continue to prejudice and today mr abramson was not your call mr mr robinson offered admission to this program years ago and showed no interest in it and didn't raise any religious seek admission into the program for treatment and when he st saw that mission he didn't raise anything about his religion he just inquired whether there was a nother way he could get early release of parole there was a gap of what close to ten years between the st time he was offered admission and when he ultimately raised this religious objection yes or no i'm not sure the exact length of the gap but yes when you initially underwent the evaluation he did not really raise religious objections but when he ultimately did seek admission he did raise those religious objections i'm not sure of the timeline when mr robinson became a christian if it happened while juan prison that that is not in the record i'm not sure but he did enter a guilty plea right this is not it's trial  pled guilty so he pled guilty to another offense i believe in the early ninety's this offense was a bench trial ok hot and and that he was when he was convicted is it name moot because he's of prison now he has been released from prison in december of two thousand and nineteen but his claim is not moot because the consequences of of being denied treatment and a misclassification that has labelled mr robinson as a voluntary refuser of treatment which is is not really the full story of what happened and how it still continues to affect him as he undergoes that mandatory legal proceedings what is the brevity you've only asked projective leave for i believe correct me if law has a treatment history that both the s l a be the state police have access to that the d o c has created its treatment history currently label similar voluntary refuse or treatment and we think the proper remedy here since obviously he can't go back to pr undergo treatment would just be to correct that record so when he faces later treatment he he has an accurate really record and we later treatment are you premising this on the possibility of the goes back to prison because los d angeles versus la and says we're supposed to presume people will follow the law and not wind up getting arrested again a convicted again so i don't see how we can we can focus on future imprisonment down the road as as based on his treatment history and how it's still and right now when they're developing a treatment program for mr robinson they have a treatment history that does not reflect this entire case this school argument that he's making that you had a religious objection wh was a refusal to accommodate mr robinson while he wasn't present the primary injury that he didn't receive the treatment can't be corrected but there's still an existing injury that he has a treatment history he will undergo treatment outside of prison evaluations outside of prison and when these medical professionals with the state are making these diagnoses and giving him an individual treatment plan and he raises these religious objections again because i remained to the district court to have new discovery but currently it's my understanding that mr robinson when he attends therapy is told he can't receive treatment unless he does the same exact thing that he was told to do in prison then the defendant b or the state police are the ones you mentioned not the secretary to the warden or the secretary of the department of corrections so if they're not a party to this suit they're not going to be bound by a judgment from this suit you know why is this case not move why don't we wait and then he brings a suit against whoever might misuse or misinterpret his record saying that they shouldn't be relying on this because of look up and yes your honor and i think that even even in a future potential suit i have no idea whether mr robinson wants to bring that suit or will bring a suit against these and other entities but even if he brings  like that and wins he still will always have on his record a treatment history that that says that he was a voluntary refuser of treatment one prison and pennsylvania law requires that simply be to consider this information when they're developing a program except that we could then issue a judgment in that case to say that they couldn't consider that information and that would override pennsylvania law if there was a real local problem with relying on that information it just it you've got the wrong defendant in this case and  that there's a big chain of things you have to get there but that's not all for us right now a minute in your eyes i think in both the th circuit and the th circuit there is case law about the fact that when a prison classifies a prisoner release and i think that same logic should apply here because there's no guarantee that any future suit can solve the problem of that there's an unfair and inaccurate treatment history here that that under pennsylvania l entities are required to consider what happens while mr robinson was and how it still can override pennsylvania law in a later suit if you accept all of your contentions and and i think one issue really applies to institutionalized individuals and he's no longer institutionalized it might be a different standard and wait if that's the case that if we can't apply it here either we can apply it really or not because he was institutionalized at the time he filed suit and this ad that this is the gist of this controversy or rubs up so d again that it seems like he could get to declare he could at least clean for declaratory judgment in a future suit that this existing record is tainted because it under rule of law and therefore that the state agency should roll out i don't want to keep you on this too long if my other colleagues of my colleagues want to as warm up as questions by all means they should but at some point we ought to talk to you about the responsibility then withhold debilitation in quotation marks based upon that failure to admit you were the person may use they to be actually related at best strike me as being problematic i don't want the legal hook is for that you could have been sure and i think that the nature of the problem is that there are compelling interest was to rehabilitate mr robinson and mr robinson doesn't challenge that that contention but there the pedophiles whoever you want to friend the class their argument is that that's a compelling interest and you're not you're not disputing that's a compelling interest you're can disputing whether this is narrowly tailored to serve that compelling interest right yes you step programs and the like the standard way the way we have good data is that one of those twelve steps is admitting guilt is a as part of a group dynamic of working through one's long and turning over an annuity and committing funding one's one full act and that's that's what has proven the people who can survive the twelve steps have much lower rates recidivism so the they've been rehabilitated they need less punishment and what your client wants is he wants to just sentencing discount without having gone through the steps which involve this group dynamic of working through guilt and confronting wrong he wants to say i can do this privately but that's not the way that these programs work and the state can't have any confidence that he's worked through it all so how does he get the benefit of a sentence discount without the work of working through to his rehabilitation and reform in this group setting you know i think one thing that's important to note is that this was about access to the program at all obviously parole would not be a guarantee even if he went through the program to the whole thing that would be a separate question that the pro border have to decide and so really mr robinson it's one small it's one aspect of the program the confessional aspect that he has a religious objection to and in his deposition  reed go the prison one of the prison officials that was in charge of managing this program mr reagan made clear that just because someone checks the box on the form that says if they accept responsibility which is what mr robinson was unable to do because of his religious beliefs doesn't mean that they are necessarily rehabilitated and that someone can introspectively rebuild their versus those they know that's really true that's a problem everybody can check the box and that does they're not engaging in part of the process that leads the state to the institution deems as being a condition preceding to turning themselves around that is confronting the risk goes and accept responsibility you think you're you're correct that by not checking that box it might become more difficult to know in particular whether they accept responsibility because that is what mr robinson can't do because of his religious beliefs mr mr  robinson likens his his mission to a concussion which i think is i think there's a significant difference i mean he is not being asked to confess as if he were in a in a church or or confessing to a pre season asking to wait or state the nature of the problem so that he can get treatment so i can see any doctor you state the nature of the problem the injury and then you get treatment what's wrong with that your honor i believe mr robinson religious objection boils down to the fact that engaging in the sex offender treatment program involves a form of receiving you know mercy or forgiveness and he can you know no it's just it's a correction if behavior it's the publicly admitting guilt whether that conflicts with his beliefs or not that those programs work as well such that he's rehabilitate just rehabilitated enough that the state should still give him a discount because he's less dangerous because it does seem like the question is is there another program that would work well enough that he ought to be able to get the same credit and the records here you tell me about the record the record the only evidence in the record seems to be empty is the standard way this works yeah so what evidence is there that the state ought to be treating what he wants to do a private admission to himself as functionally about as effective as the standard the gold standard you're and i think that under lupin as as holmes clarified that it was the prison officials burden to show evidence that there was no possible way that that a program without doubt that confessional requirement could work sinister of no possible way that they say that this likelihood of him succeeding in terms of rehabilitate himself or addressing his problem is substantially improved not one hundred percent likelihood substantially improved if he that that they have shown they have not shown that a program without without the confessional aspect could not be the same substantial improvement what what they argue is that simply it's either this program or nothing at all and that that is not enough to satisfy well but something to prove a negative isn't it enough for them to put in evidence this is the standard way it's done this is the way we do it this is where we have data i mean maybe you're you don't think there's enough evidence in the record of that but if they had shown this is the way woods done this is the way we've always done it this is a successful way is not enough to just charge the burden such that you have to then come back with some evidence that his like private confession is equivalent roughly equivalent or something like that you haven't put any evidence like that in have you well mr rigo in his deposition acknowledge that an individual introspective could achieve the same the same goal the same acceptance of responsibility as as the state seeks as a key part of of rehabilitation could you can you take me to where in the record he says that ad is quibbling for treatment purposes and i additional question go ahead yeah i see a very significant difference between the admission of wrongdoing and a confession and it's in the religious context and in the prison context in this in regard to this program where he is now being asked to do is to admit his wrong and wrongdoing not to confess as and as in religion could you help me and tell me why i'm wrong about that your honor and i think that eleven part of mr robinson's religious beliefs is that any anything because this program necessarily is about rehabilitation and ultimately potentially mercy in the form of parole that mr robinson feels that it is th same as confessed as a confession in a church or or whatever setting he feels is appropriate to confess but there's a big difference when you confess in a church context because you're confessing to a priest that's not what's taking place here he's being merely being asked how having two would accept responsibility service some deterrents but then a j one hundred and fifteen the question for mr robbins lawyer is it possible that a person can acknowledge and understand how wrong behavior was without telling someone else of course is it commonly held that says full treatment can't take place without admitting guilt and the prison official says acknowledging that the crime was committed allows us to look at other aspects of sexual offending to help in been to the jewel of what offending in the future so there's a treatment reason why admitting publicly allows the treatment to proceed then there's a question what's the difference in being made accountable by the prison term and taking responsibility and there's some discussion about helping to understand this verbal communication of wired all some a complete it in writing but talk therapy is the best way because i know that voice inflection body language the emotion behind it i don't know what they're really up to so i don't see anything around j making it a stepping stone for later parts of treatment and i don't see any record evidence d you have that this is equivalent for treatment for it's just that this is one piece of it you know can start with with confronting it internally not that that's the same and i think eleven question is that there were six other phases of treatment six other parts of treatment that could have led and they do involve this group therapy that that mr ego discusses in a deposition that because or been able to do some part of it but that part is moot now because he can't go back and get that all he wants is the ward from successfully completing and graduating but you're telling us his conscience is such that he can't do one of the things that is required to graduate so so i don't see how he's he is a would be better off because he can't maybe they should give him the books or let him take part in the st part but if he can't or couldn't a graduate sure and i think that this case really especially now after his release is not about the ultimate reward because he keeps obviously can't receive the parole benefits or any of the other benefits of treatment but it is about the fact that his record says he treatment when in reality there was there was more to what happened there it was the a police refused to let him into the other phases of the program receive the education of a child i thought your theory here was that maybe his to a different facility that is because an injunction where the plaintiff is no longer imprisoned cannot provide him with meaningful relief and that is the case here ms robinson nonetheless urges this court to engage in a purely academic exercise and provide opinion on the d s e sex offender therapy program but there's no reasonable expectation that he will again be subject to that very program and with due respect to this panel it's not the court's role under article three of the constitution to weigh in on moot claims because it could hypothetically be useful to robinson in a future lawsuit rather this court's authority is limited to deciding active cases and controversy and that's a that's a requirement that must exist through each stage of if he had wanted damages of some sort he would have made that clear in his complaint and had an obligation to do so this is that's assuming for a moment that the case is not moot think you heard  issue because you know parole is not a right it is a privilege and i think it is perfectly acceptable for us to condition parole upon him dropping his appeal of his criminal for therapeutic purposes and for the purpose of altering behavior so they don't repeat that behavior again in the future i think it's it's quite different than an acknowledgment of guilt that far as a criminal case is concerned ok so i think that is i well wanted whatever materials you could share and was denied even that i don't understand why you would give this man something to help him get whatever benefits he could even if he's not allowed to be part of a graduate from the program isn't why didn't you accommodate him to that extent or why would you accommodate me well i think what he was asking for was sort of constantly shifting your honor and i think what is he was was can you deem me compliant with the program if i do a few homework assignments here there and i don't think that is enough to be deemed compliant with the program your honor if if you know when i was in my st year of law school if i had approached my dean and said you know i don't really want to be here for three years sitting through classes and taking all these pesky exams but if i do a few homework assignments can you give me a law degree anyways i don't think that would that request would be well received but that that's basically what mr robinson asked here he said can i do a few homework assignments forgo the most critical aspect of the program which is acknowledging responsibility and not denying the past conduct can i forego that and nonetheless be deemed compliant and so given that that was what he was asking i don't think we had any obligation to heed that request when i see a fisherman with the institution skeptical that he asserting these these various inquiries but you know i think given the history with this inmate that he had you know spent years i believe was around nine or ten years trying to get around this program and to be excused from the program and then he suddenly comes up with this religious justification but even then he's not being very clear about you know how the program violates his religion you have been and if we should go the sincerity issue i don't think you really live in a contest well i think it's true that wasn't addressed below your honor i our primary argument below is that before you even get to sincerity there's a sort of threshold issue that he was never even denied access to the program and never even saw access to the program and then we made an alternative argument that we satisfy strict scrutiny and now on appeal i think this court has the ability to does seem like he's been jumping around them it's hard to pin down what he's really been asking for here i agree your honor i think he was again he has requests were constantly shifting but the one constant throughout was his focus on getting parole what he wanted was to get out of prison as quickly as he possibly could and he was coming up with whatever justification and whatever alternatives that occurred to him on a given day true that's not true your honor the the program is uniform with respect to the acceptance of responsibility what i believe the appellant is referring to is that one thing that is unique to this prison in particular is that there is a separate housing unit for all of the offenders where they sort of live as a group and do group therapies and things like that but otherwise who'd stale like every other institution within the d s c follows the d o t policy and that policy puts forth that acceptance of responsibility is a fundamental aspect of treatment you have this program confined to sex offenders or are these types of programs available for different for other types of offenders i believe this particular program your honor is limited to sex offenders but you know i don't think it's part of the record but i think there are other therapeutic programs that are generally available but this specific one is limited to sex offenders and it's tailored to some of the unique issues surrounding sex offenses you have data on success rates and relatedly is can you tell if the effect here is that the treatment is changing people effectiveness in the program is shown through the fact that people who complete it people who stop denying their past and come to terms with it are less likely to then go out in the world and commit additional sex offenses but what's in the record what's like are the children narrowly tailored for that admitted lee compelling government interest well i think the narrow tattling narrow terrill tailoring your honor is in the fact that the acceptance of responsibility aspect of the program is this inherently flexible aspect of the program it's not something that we just ask once and that's it and in fact deniers are allowed to enter the program a nationally and mr robinson here was recommended for the program additional stages but at some point or to advance to the next phase you have to then admit guilt and that's where robinson problems as the situation well basically correct or i wouldn't call it admitting guilt we want them to willing to you know acknowledge their past conduct but then later is found to be minimizing that conduct that can prevent them from completing the program so the acceptance of responsibility is evaluated throughout and i believe it's around eighteen months typically to complete this therapy so it's a part of the program that is it's constantly being a valuation i may have missed what you said but did he take advantage of that early part of the program where he could be receive some treatment without program and even though he was a denier at that point he was specifically recommended to enter but he believed treatment was unnecessary and so he declined to participate at that point discuss your offenses openly in a group the answer he gave was yes and then there was another question on that same form do you believe you need treatment the answer was no and so the reason he didn't enter the program at that stage in two thousand and seven was he didn't think it was necessary and then seven and a half years go by and it just so happens that when he reaches the point where he would have otherwise been eligible for parole he starts sending all these inquiries to the d l c staff asking about the program seeing if he can be deemed compliant seeing if he can do a few homework assignments here or there and again i think it was quite clear at that point that his priority was parole and not maintaining his religious views if you're not contesting at least i don't think you c yet accepting responsibility something like that is in the record right i think that's correct you know let's talk about why allow some but but kept it does it is there anything in the record about how the presence of more than twenty percent of presence of large numbers of people who don't accept responsibility would change the program is there a way in which his being in the program wall refusing to  open that door would change the program for other prisoners or inmates you're on that's a really good question and and to be frank it's not something i've thought about before now and i don't think that it's part of the record but i think perhaps it could have some to you know if if you have too many people in the program who are all of whom are denying that they committed these these acts and they're all living together and doing therapy together i think part of what gets people who are initially deniers to later come to terms with what they did and accept responsibility is being in a group therapy setting where other people are doing that and sharing their experiences and and i think perhaps the concern is if you is that yes the most similar case but it was decided under the self incrimination clause you think that case has any relevance to our consideration well i agree with you that it's not on all fours with this case but i think it's relevant because the supreme court in that case acknowledged that denial of one's crime today is a principle and hadn't meant to successfully therapy when it comes to sex offender so i i agree with you it's  that denial is that it is a principle impediment of therapy he could have if he didn't have these religious objections simply check the box and gone through the program as normal well mr abrams it's not precisely but he wants to google it's that he wants a notation change that would get him better treatment going forward that's your theory of non mutants right yes or no i think a notation that would accurately reflect what what happens in the street in history you have any an d any further answer to the issue about wattle why these are this is the right suit why there's a right defendants to get any benefit from the the board or the police or anyone fact that the d o c has labeled him as a voluntary fuser because they deny him treatment and that label will stay with them as long as the g o c is allowed to be as a logical ossify him in that way so it's their it's their injury that's why they're the proper defendants it's rooted in something that the police did and can't correct but in cases like spencer vs kemo we treat criminal challenges is moot even though people walk the label wiped off them that you know that the labeling is not enough if you can't point to some collateral consequence of a conviction and we will resume consequences a lot of settings but not when someone is completely released from any custodial supervision and his account of that i believe is on the joint appendix at least one hundred and twenty two dollars and i believe it's a few pages before and after that that he was told that he had to set a diligent aside if you wanted to enter the program because while it is do you see policy to admit twenty percent as as deniers as mr mullen said from mr robinson's perspective at that point he was told that he could not even enter the program  without checking that box or a one hundred and twenty two doesn't talk about entry into the program he said he told me i would have to set my religion aside but that could be to complete the program i don't see anything that said it was a barrier even entering the program