behaviors as part of treatment offenders are not terrorists so you just so that you can zero in i did not understand the district court here to be saying anything about whether indiana could have this program and  a twenty to fifty four case right correct it's not a nine hundred eighty three correct and that has an effect on the standard of review it has an effect on the scope disincentives let's say for people who don't want to participate in indiana be perfectly free to do that so i think the focus is can you have the program the focus and even can you have a carrot and stick approach to things or maybe an only stick approach to things if you broke a sign why it's permissible to delete good time credits from the records of those who've already accrued them that would be very helpful to me yes and that goes to the issue of compulsion there unlike kansas where the department has discretion given good time credits but when they refused or were found not to be fully cooperative with the program they leave the program then there's that ninety day period and then they're approached again and every time they say no they lose one hundred eighty days good time credits that they already had not that they're going to get in the future and so my concern i mean based on actually a lot of  o'connor all agreed that when the when what happened to you if you lost visitation rights your earnings deranged you couldn't have a t v and on and on and on they might move to the the different and so that's what you bring to us today just rent and so i need you to put it inside twenty to fifty for analysis right and in which is not an account because it wasn't twenty two fifty four correct and as the when when earned good timing credits are taken away the offenders are entitled to due process interest triggers the due process protections but the district court the reason that the district court found that indiana's program was different from for example kansas was the fact that they have already morning is not necessarily the academic question of whether this is a liberty interest or whether it's just a privilege but from the standpoint of completion of the offender we c  but it seems to me india is kind of stuck with the fact that the supreme court regards loss of great time credit as the occasion for it or a duration of confinement as twenty two fifty four and that being punished by losing good time is a punishment against you point out rightly you know wolf against donal's there but it's a punishment so you know i just don't see how you can get to the point of saying that that punishment is an appropriate thing to use when you have so many other things that you could use that would compel people to participate in this program well it's true that there are there are many options path and operating these programs  the purpose of having consequences for not participating in indiana in other states is to provide incentives sure for so why not to make you i'm not challenging your indianness right to have this program at all it's the it's the self incrimination compulsion you know in an ordinary situation if somebody said to you if you don't talk to us like a police officer then we're going to keep you and in jail for an extra ten days that would be incarceration for not talking and that would certainly be something that there would be fifth amendment consequences for right correct so why isn't indiana the same because the the classic situation that the court has described if you don't testify against yourself like your criminal trial you know you're you know you'll be convicted that we don't we this is not a police interrogation this is not  told not to incriminate themselves but look at what they are required to put down suppose the police have done a certain amount of background investigation and now they learn the age of the victim at the time  relationship between the participant in the victim the sexual behaviors and gauged in how many times the victim was offended over what period of time what grooming techniques that would be a lot of on the blank information i don't think you have to say that it's got to be standalone well put the evidence before the court or both factors in those specific questions is the program workbooks that ask these questions and there's no evidence i was in my early twenty's i tended to molest four year old girls do we need a better record on this because i think there's a real discrepancy between what you're saying and the evidence indicates what has really been the operation and i might also add that in the coon there's the statement that even so there isn't even though there wasn't evidence that people had been prosecuted the court thought that was that the risk w enough to allow these folks to go forward in the queue and i ask you about that very point short here you argue that the risk of incrimination is low because there's no recorded history or referrals to the authority to authorities what what legal authority do you have to support the view that the history is it is relevant as a legal matter i think it goes to for example the hofman case that says you look at setting in which these questions are being asked and the fact that this is a therapeutic setting where we have counselors not law enforcement not prosecutors asking questions that they're wanting participation  warning the offenders over and over do not provide identifying information that that that supports my argument that there is not a substantial risk of incrimination not only an interest in the risk that you're talking about is not a the individual at all can control right if the if we got to take the program as it comes to us judge was recognizing the workbook pages or what the workbook pages are the questions are what they are and if they're filled out there is no evidence that those written materials are turned over in fact the only thing that the counselor about and i i'm peering into the information outside the record but what's more important to the program is that they do not incriminate  of the victim you know this is the precise address of the victim but the moment an inmate says i engaged in the following conduct with someone that was ten years old how is that not incriminating the the the question is whether anything is communicated that would trigger the d d to report the statutory duty to report and that is not really well defined is it enough just to say i had a ten year old victim and t information that is required to be disclosed under this program carries the risk of incrimination it seems very clear that this does given the detail that the prisoners are required disclose in the course of this treatment program including as i understand it the name of victims the first name if not the last name they're instructed not to identify the last name the risk of incrimination in a very serious way particularly because there is no guarantee of immunity for confidentiality well this court has the right materials and it knows what questions are asked it also knows that offenders are told not to provide identifying information which would appear to be mutually exclusive propositions are they told to you to list the names first name of if you think them in their written materials there's no evidence that these written materials are given to anybody instead of the group therapy session for the group therapy they need to come having done their reflection about their their past their history and and then share it there's no reason for therapeutic purposes for them to say who the they're supposed to share the types of victims and how old they were whether they groom victims that's the information that is but the press is a program is that the therapist or whoever is running the groups and group therapy session or counseling session has the sole discretion to determine whether the prisoners being sufficiently forthcoming and to order a polygraph if not well in the record we have and permits the government agents to do with that information right now can i just interject i thought it was there is just one person who after taking a polygraph was found not to be somebody who had committed the crime that there were actually quite a few polygraphs and quickly but there's there's evidence in this record of lots of polygraphs which is one exonerated person those are those are cases where the the government agents who are running the program to do with that information and if permits and in some cases requires that they turn it over to law enforcement correct and  wants information for the purpose of effective treatment i think it just starts you can stop short of providing detail and yet incriminate yourself very substantially again that's that is not what we have no evidence of that that the point is i think it's more testing by the legal the legal standard of risk the judge sikes disappointing to you i can omit names and addresses and precise locations and incriminate the daylights out of myself well in if you were if you were being interrogated by a police officer by a detective that would be different from being in counseling and telling these things indiana's policy requiring admissions sweeping admissions during their sex offender treatment program combined with the penalties  from passing along troubling information that they hear information that might point to a crime i understand that there are mandatory reporters if they find out something about a juvenile or an elderly person but putting to one side the mandatory reporting context and are the counselors free to say you know inmate so and so has just revealed a pattern of behavior that i think will solve a lot of cases in such and such county and then pass along they are not in fact in the reforms that are required for the sex offenders to sign off on they are told that there is extremely limited confidentiality in the program and i think it's a mistake to believe that the information that they disclose stays within the group and i would also argue that the information does come out in the group because that's how the polygraph happened for that particular counsellors assessment that they're not disclosing enough but they're warned that that information can be shared within the institution and it can be shared with law enforcement it can be shared with inside the institution it's very nine and there's not one example of a referral is that history relevant or irrelevant as a legal matter in your view and it is irrelevant and in fact the indiana supreme court stated that as well the fence the right why is it legally relevan irrelevant so your opponent makes emphasizes that the people who are hearing i want i don't want to talk about the group sessions right now i want to talk about the initial disclosure guarantee she's saying that there's a therapeutic purpose in some is trying to get people ready to succeed when they're released into the community and so forth and so even though these counselors might spill the beans to somebody it's still are providing the basis for this disciplinary action and for this private time to be removed from you every sixty days or so is that the counsel who refers to somebody who first somebody to a polygraph and is there only one polygraph dealing with asked to take a polygraph for failing to be fully forthcoming about other activity absolutely not i have it was an extensive period of discovery in this case and i  received information from a very large number of prisoners who have been subject to this policy and didn't include the number of polygraphs that have been requested i just try to limit myself to examples groups but i could submit something after argument if the court would like to see more examples polygraphs for that reason ok i think that of the court asked counsel that question does i think prevent counsellors for passing on any information apart from the statutory duty to report and the answer is yes because these are mental health professionals who operate under the standards created by statute of confidentiality that confidentiality doesn't cover incriminating information but the counsellors can't go to their friends and say someone sorry what's incriminating information looking for therapeutic reasons that these patterns of behavior but the terms of the program require far more specific information than that and i intended to address the question about non incriminating information and i thought that was the question to counsel is does anything prevent those disclosures and the answer is yes that these are still mental health professionals who have general requirements of confidentiality and  those general requirements is that incriminating information i beg your pardon but well there's there's a separate statutory duty to report if they hear information that sufficiently incriminating these these are two different types of information and just