### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 3256

D ONALD L ACY

, on behalf of himself and all

others similarly situated

,

Petitioner

‐ Appellee

,

v.

K EITH B UTTS

, Warden,

Respondent

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 13

‐ CV

‐ 00811

— Richard L. Young

, Judge

.

____________________

A RGUED O CTOBER 26, 2018

— D ECIDED A PRIL 25, 2019

____________________

Before W OOD

, Chief Judge

, and S YKES and S CUDDER

, Circuit

Judges

.

W OOD

, Chief Judge

. When the state wants to encourage sus

‐

pects, defendants, or incarcerated o ff enders to admit guilt, it

has many tools at its disposal. Before or during trial, prosecu

‐

tors may hold out the prospect of a plea bargain. Judges may

reward defendants with a sentence reduction for accepting re

‐ sponsibility. Prison rehabilitation programs may o ff er2 No. 17

‐ 3256

bene fi ts and incentives by conditioning visitation rights, work

opportunities, housing in a lower

‐ security unit, and other

privileges on an o ff ender’s willingness to admit responsibility

for the crime of conviction. McKune v. Lile

, 536 U.S. 24, 40

(2002).

But the Fifth Amendment draws one sharp line in the

sand: no person “shall be compelled in any criminal case to be

a witness against himself.” U.S. C ONST

. amend. V. (emphasis

added). This case requires us to decide whether Indiana’s Sex

O ff ender Management and Monitoring (INSOMM) program

crosses that line with its system of revoking good time credits

and denying the opportunity to earn such credits for

convicted sex o ff enders who refuse to confess their crimes. In

an action brought by a class led by Donald Lacy, an inmate

subject to INSOMM, the district court ruled that Indiana’s

system as currently operated impermissibly compels self

‐

incrimination and must be revised. We a ffi rm.

I

Indiana requires all inmates convicted of a sex o ff ense to

complete the INSOMM program before release. The program

is divided into three phases. During Phase 1, which focuses

on “Consent and Assessment,” participants must fi ll out a Sex

O ff ender Questionnaire that asks them to identify which ille

‐ gal sexual acts (for instance, rape, child molestation, or pros

‐

titution) they commi tt ed and how often. Based on their of

‐

fense history, participants are then sorted into one of three

risk groups for Phase 2, “Risk Based Sex O ff ender Treatment,”

which consists of group therapy sessions led by counselors.

Inmates meet only with others assessed at the same risk level;

this becomes their “core group.” The higher

‐ risk groups must

complete more hours of therapy. In preparation for theNo. 17

‐ 3256 3

therapy sessions, participants must fi ll out workbooks that re

‐ quire them to describe in detail all past acts of sexual violence

and abuse, regardless of whether they were ever charged for

those o ff enses. Finally, after release participants must com

‐ plete Phase 3, “Community Management and Monitoring,”

which is not at issue in this case.

As INSOMM stresses to its participants throughout the

program, they enjoy neither immunity nor con fi dentiality for

any of the disclosures they make at any stage. Moreover, par

‐ ticipation is an all

‐ or

‐ nothing a ff air: inmates may not opt out

of any part of the program, and they are required to respond

fully to all questions asked. A counselor who suspects that a

participant has been either deceptive or less than forthcoming

has the discretion to order polygraph testing. Such an order

triggers a requirement for the participant to fi ll out a detailed

Polygraph Sex History Questionnaire. A participant is ex

‐

cused from admi tt ing responsibility for an o ff ense only if the

polygraph examination indicates no deception and the coun

‐

selors agree that the participant is being truthful.

Failure to participate satisfactorily in INSOMM is costly.

It is treated as a Class A or Major Conduct disciplinary viola

‐

tion. That is the same class assigned to rioting, escape, rape,

or assault on prison sta ff

. The particular Class A violation at

issue in our case—Code 116, “Refusing a Mandatory Pro

‐ gram”—applies to a much broader range of conduct than a

fl at

‐ out refusal to participate. Inmates who refuse a polygraph

examination, deny parts of their o ff enses, give answers that

are deemed to be incomplete or dishonest, or otherwise fail to

“adhere to treatment expectations” also qualify for a Code 116

violation. The INSOMM counselors make the fi nal decision

whether an inmate’s conduct merits disciplinary action.4 No. 17

‐ 3256

For a fi rst Code 116 o ff ense, inmates are penalized (among

other ways) by placement in a credit class that denies them

the opportunity to accrue good

‐ time credits. These are credits

to which they would otherwise be entitled by statute. I ND

.

C ODE § 35

‐ 50

‐ 6

‐ 3 (accrual of credit time for people convicted

up to June 30, 2014); § 35

‐ 50

‐ 6

‐ 3.1 (same, for people convicted

after June 30, 2014); § 35

‐ 50

‐ 6

‐ 5 (deprivation of credit time). If

an inmate persists in whatever conduct gave rise to the disci

‐ plinary action—such as by refusing to admit a particular

crime or answer a particular question—he is regarded as com

‐

mi tt ing a continuing Code 116 violation punishable by revo

‐

cation of 180 days of already

‐ acquired good

‐ time credits for

every 60 days during which the noncompliance continues.

While the violation is ongoing, the inmate is barred from

earning new good time credits. Some class members have lost

all of their accrued good

‐ time credits as a result of this system.

Lacy brought this case on May 16, 2013, under 28 U.S.C.

§ 2254, on behalf of a class of Indiana inmates who have been

punished with a loss of good

‐ time credits and a demotion in

credit class for failure to abide by the requirements of IN

‐

SOMM. On September 20, 2015, the district court certi fi ed the

class. (For ease of exposition, we refer to Lacy’s arguments, on

the understanding that he presents them on behalf of the en

‐

tire class.) Lacy argues that the disclosures required by IN

‐

SOMM and the penalties imposed for non

‐ participation,

taken together, amount to a violation of his Fifth Amendment

right to be free from compelled self

‐ incrimination. The district

court agreed and ordered the issuance of the writ of habeas

corpus to restore the class’s lost good

‐ time credits. It also va

‐

cated all disciplinary actions and sanctions for failure to par

‐ ticipate in INSOMM.No. 17

‐ 3256 5

On appeal, Indiana argues both that the INSOMM pro

‐

gram does not carry a su ffi ciently serious risk of incrimination

to trigger the protections of the Fifth Amendment, and that

even if it does, the revocation of credit time and the demotion

in credit class do not add up to unconstitutional compulsion.

Because the district court resolved the case on summary judg

‐

ment, we consider its decision de novo

. Thomas v. Clements

, 789

F.3d 760 (7th Cir. 2015).

II

To succeed in his Fifth Amendment challenge to IN

‐

SOMM, Lacy must demonstrate that the disclosures to which

he objects are (1) testimonial, (2) incriminating, and (3) com

‐ pelled. Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt

Cnty.

, 542 U.S. 177, 189 (2004). Because the parties do not dis

‐

pute that the disclosures are testimonial, we need decide only

the la tt er two issues: whether the program calls for incrimi

‐ nating information; and if so, whether participation is “com

‐ pelled” as that term is used in the Supreme Court’s Fifth

Amendment jurisprudence.

A

Lacy’s fi rst task is to show the risk of self

‐ incrimination

that fl ows from an inmate’s participation in INSOMM is “real

and appreciable,” rather than “imaginary and insubstantial.”

Marche tt i v. United States

, 390 U.S. 39, 48 (1968). He can do so

even if the required disclosures would not “in themselves

support a conviction,” so long as they would “furnish a link

in the chain of evidence” that could lead to a criminal prose

‐

cution. Ho ff

man v. United States

, 341 U.S. 479, 486 (1951).

A closer look at INSOMM shows that Lacy has met that

burden. The extensive information that INSOMM requires of6 No. 17

‐ 3256

its participants—with the express warning that neither im

‐ munity nor con fi dentiality will be available—exposes Lacy

and his fellow class members to the risk of future criminal in

‐ vestigation and prosecution. Although Indiana contends that

“the INSOMM program permits participants to describe their

actions in the most general terms,” a few examples illustrate

why this benign description is not supported by the record.

First, in the disclosure assignments that make up part of

the core

‐ group workbooks, the program directs the partici

‐

pant to be “detailed and speci fi c” about each victim he has

harmed, using a separate sheet for each one. In the Medium

Risk Core Group Workbook, the questions that the partici

‐

pant must answer for each past act of sexual violence or abuse

include the participant’s age and the victim’s age at the time

of the o ff ense; the fi rst name of the victim; the participant’s

relationship to the victim; “what parts of [the participant’s]

body” touched “what parts of [the victim’s] body”; “how

many times [the participant] o ff ended the victim and over

what period of time”; “where and when” the abuse occurred;

how the victim was selected and groomed; and the types of

force used to ensure the victim’s compliance. The High Risk

Core Group Workbook includes these questions and more: it

also asks the participant to describe “in detail the set

‐ up of the

sexual abuse of each victim”; pa tt erns among his victims, such

as their age, appearance, and race; “when and how” the abuse

started with each victim; and “in what ways [the partici

‐ pant’s]

... sexual o ff ending behavior change[d] over time.”

If counselors fi nd any of the responses to those questions

to be inaccurate or incomplete—a determination they have

unfe tt ered discretion to make—they can refer the participant

for a polygraph examination. Such a referral starts with theNo. 17

‐ 3256 7

obligation to fi ll out yet another, equally intrusive, question

‐

naire. The polygraph questionnaire asks highly speci fi c ques

‐

tions, such as: “How many children have you physically

forced into sexual activities? Describe what you did.”; “How

many times have you had sexual contact with someone who

is handicapped? Describe.”; and “How many times have you

made child pornography (taken pictures, video

‐ tapes, fi lms,

etc.) of nude children or children engaged in sex acts? De

‐

scribe.” The participant must also “write the number of

times” that he has masturbated in each of 31 di ff erent public

places, indicate the most recent time he exposed himself to

someone, and describe times when he had sexual contact with

someone who was drunk or under the in fl uence of drugs. For

each victim, the participant must indicate whether he en

‐ gaged in any one of 27 speci fi c actions and how many times,

including whether he “put [his] penis inside [the victim’s]

vagina (even a li tt le bit),” “threatened [the] victim with

harm,” or “masturbated in front of [the] victim.”

Truthful and complete answers to questions such as

these—and there are many, many more—are highly pertinent

to crimes beyond those of conviction. The odds that some par

‐ ticipants would be investigated and successfully prosecuted

for past uncharged crimes are high. The required disclosures

could provide enough detail to kickstart a brand

‐ new investi

‐ gation. (By the time the state knows the victim’s fi rst name,

age, and relationship to the o ff ender, as well as when and

where the abuse took place, it often will require li tt le outside

investigation to complete the story.) INSOMM disclosures

might advance or substantiate an ongoing investigation or

one that was halted for lack of evidence. In current or poten

‐

tial prosecutions, disclosures from INSOMM could con fi rm

identity or modus operandi

. F ED

. R. E VID

. 404(b)(2). And when8 No. 17

‐ 3256

the questions require an admission of responsibility for the

crime of conviction rather than for an uncharged crime, a par

‐ ticipant who pleaded not guilty and testi fi ed in his own de

‐

fense could be exposed to perjury charges. In short, when In

‐

diana requires inmates to describe all of their past sexual of

‐

fenses in minute detail, the risks of self

‐ incrimination are far

from “remote” or “speculative.” Zicarelli v. N.J. State Comm ʹ n

of Investigation

, 406 U.S. 472, 478 (1972). They are self

‐ evident.

Indiana’s arguments to the contrary are unpersuasive. It

places great weight on the fact that “[p]articipants are not re

‐ quired to identify their victims or speci fi c dates of the sexual

activity” and that they “are speci fi cally advised not to provide

identifying information.” But that general statement collides

with the speci fi c command to provide highly detailed ques

‐

tions about each incident of past sexual abuse, omi tt ing only

the date and the victim’s last name (or even full name). The

required details easily raise a signi fi cant risk of incrimination.

The state has not explained how it is possible to answer these

more speci fi c questions—such as the age of the victim and the

victim’s relationship to the participant—while taking ad

‐

vantage of the general admonishment to avoid “identifying

information.” Ignoring the actual questions, the state insists

that the disclosures are at such a high level of generality that

they “could not support a link in the chain su ffi cient to sup

‐

port an investigation or even admission at trial.”

Saying so does not make it so. This ipse dixit does not ex

‐ plain why granular descriptions of the circumstances sur

‐ rounding speci fi c sex crimes and pa tt erns of criminal sexual

behavior would prove useless to investigators or prosecutors.

The Fifth Amendment “protects against any disclosures

which the witness reasonably believes could be used in aNo. 17

‐ 3256 9

criminal prosecution or could lead to other evidence that might

be so used.” Kastigar v. United States, 406 U.S. 441, 445 (1972)

(emphasis added). The questions posed to an INSOMM par

‐ ticipant would yield answers that any competent sex

‐ crimes

investigator or prosecutor would love to have.

Indiana also stresses that “no prosecutions have been ini

‐

tiated as a result of the INSOMM program.” But this fact—

assuming it is true—is not determinative. It is not the case that

“a witness’ constitutional privilege against self

‐ incrimination

depends upon a judge’s prediction of the likelihood of prose

‐

cution. Rather

... it is only where there is but a fanciful possi

‐ bility of prosecution that a claim of fi fth amendment privilege

is not well taken.” In re Folding Carton Antitrust Litigation, 609

F.2d 867, 871 (7th Cir. 1979) (emphasis added).

Indeed, in its reply brief the state all but concedes that the

necessary level of risk is present. It admits there that the pos

‐ sibility of prosecution is anything but “fanciful.” It does so in

the course of explaining why INSOMM does not provide im

‐ munity for its participants. O ff enders, the state insists, must

feel the risk of prosecution for the program to achieve its ther

‐ apeutic goals. “Immunity is not an option. If prisoners know

they will never be prosecuted for past o ff enses, they may be

led to believe that society does not consider their crimes to be

serious.” No one says that the state is obliged to grant immun

‐ ity, of course; Lile holds otherwise. 536 U.S. at 27. But the

state’s recognition that the disclosures run enough risk of self

‐

incrimination that a prisoner might want immunity is telling.

It seems to us that the state is trying to have it both ways: on

the one hand, it wants us to believe that the rehabilitative pur

‐

pose of INSOMM depends on the disclosures’ carrying a

meaningful risk of prosecution; but on the other hand, it10 No. 17

‐ 3256

maintains that this risk is too remote to implicate the Fifth

Amendment. Our own independent assessment of the pro

‐

gram convinces us that the disclosures do give rise to a real

and appreciable risk of prosecution.

B

That brings us to the central question on appeal: whether

INSOMM, through its denial of the opportunity to earn good

‐

time credits and its revocation of credits already earned, as a

means of inducing participants to furnish information, com

‐ pels self

‐ incrimination in contravention of the Fifth Amend

‐

ment.

We acknowledge that the line between permissible pres

‐

sure and impermissible compulsion can be di ffi cult to draw.

That may explain why in Lile

, the Supreme Court’s latest pro

‐

nouncement on the subject, the justices failed to produce a

majority opinion. 536 U.S. 24. Nonetheless, many cases are not

close to the line, and ours is one of them. All fi ve justices join

‐ ing the judgment in Lile singled out the extension of a term of

incarceration as a penalty more severe than the one before

them. We look for guidance to Justice O’Connor’s plurality

opinion, which we fi nd re fl ects the narrowest grounds ac

‐ cepted by the concurring justices and thus is controlling un

‐

der the rule of Marks v. United States

, 430 U.S. 188, 193 (1977).

Justice O’Connor summarized the relevant restrictions im

‐ posed on inmate Lile as follows:

These consequences involve a reduction in

incentive level, and a corresponding transfer from a

medium

‐ security to a maximum

‐ security part of the

prison. In practical terms, these changes involve

restrictions on the personal property respondent canNo. 17

‐ 3256 11

keep in his cell, a reduction in his visitation privileges,

a reduction in the amount of money he can spend in

the canteen, and a reduction in the wage he can earn

through prison employment.

536 U.S. at 50–51.

Justice O’Connor’s concurrence speci fi cally identi fi ed a

longer term of incarceration as an impermissible penalty, at

least if it were imposed automatically. 536 U.S. at 52 (“The

penalties potentially faced in these cases—longer incarcera

‐

tion and execution—are far greater than those we have al

‐ ready held to constitute unconstitutional compulsion in the

penalty cases. Indeed, the imposition of such outcomes as a

penalty for refusing to incriminate oneself would surely im

‐ plicate a ‘liberty interest.’”). Her rationale leads to the conclu

‐

sion that Lacy faced unconstitutional compulsion. Cf. United

States v. Antelope

, 395 F.3d 1133, 1138 (9th Cir. 2005) (“Justice

O’Connor made clear in her McKune [v. Lile] concurrence that

she would not have found a penalty of ‘longer incarceration’

such as that here to be permissible.”). See also Glover v. United

States

, 531 U.S. 198 (2001) (error leading to longer sentence is

prejudicial for Sixth Amendment purposes, even if the exten

‐

sion is not a long one).

The plurality opinion in Lile is not to the contrary. The four

justices in the plurality went out of their way to distinguish

the penalties they found permissible from the sort of punish

‐

ment at issue in this case. They noted that Lile’s “decision not

to participate

... did not extend his term of incarceration. Nor

did his decision a ff ect his eligibility for good

‐ time credits or

parole.” Lile

, 536 U.S. at 38 (plurality opinion; emphasis

added). Like Justice O’Connor, the plurality suggested that

when the penalty in question was as serious as a longer term12 No. 17

‐ 3256

of incarceration, the automatic imposition of such a penalty

would amount to unconstitutional compulsion. “States may

award good

‐ time credits and early parole for inmates who ac

‐

cept responsibility because silence in these circumstances

does not automatically mean the parole board, which consid

‐

ers other factors as well, will deny them parole.” Id.

, citing

Baxter v. Palmigiano

, 425 U.S. 308, 317–18 (1976). For this pur

‐

pose, the distinction between a discretionary award of less

time and the automatic deprivation of an earned sentence re

‐

duction is critical.

Three of our sister circuits share this understanding of Lile

.

See Antelope

, 395 F.3d at 1133 n.1; Ainsworth v. Stanley

, 317

F.3d 1, 4 (1st Cir. 2002); Searcy v. Simmons

, 299 F.3d 1220, 1225

(10th Cir. 2002); see also United States v. Von Behren

, 822 F.3d

1139, 1147–48 (10th Cir. 2016). (There are also two un

‐ published decisions that discuss Lile more brie fl y; they do not

reach any contrary conclusions about the e ff ect of the O’Con

‐

nor opinion. See Edwards v. Goord

, 362 F. App’x 195 (2d Cir.

2010); Thorpe v. Grillo

, 80 F. App’x 215 (3d Cir. 2003).)

More broadly, the Supreme Court has emphasized that

punishments implicating the length of con fi nement are di ff er

‐

ent in kind from those that a ff ect the conditions of con fi ne

‐

ment. Here, Indiana considers no other factors as it evaluates

whether to revoke an inmate’s good time credits or to deny

him the opportunity to earn such credits. The decision to de

‐

cline participation in INSOMM is not merely a trigger for a

later stage in which the state takes a more holistic view of an

inmate’s progress toward rehabilitation. Instead, a prisoner’s

choice to invoke his privilege against self

‐ incrimination is the

direct cause of his loss of credits—credits that otherwise

would be statutorily guaranteed (assuming no independentNo. 17

‐ 3256 13

reason to revoke them). I ND

. C ODE §§ 35

‐ 50

‐ 6

‐ 3, 35

‐ 50–6

‐ 5.

Neither the plurality nor the concurring opinions in Lile sup

‐

port such a system. Nor, for that ma tt er, did the dissenters. As

the Ninth Circuit noted in Antelope

, 395 F.3d at 1138, the dis

‐

senters found even the existing penalties to be unconstitution

‐ ally coercive; the more severe sanction of longer incarceration

would have been at least as problematic.

Indiana stresses that its credit

‐ time statute explicitly con

‐ templates the revocation of credit time for an o ff ender who

“refuses to participate in a sex o ff ender treatment program”

during incarceration. I ND

. C ODE § 35

‐ 50

‐ 6

‐ 5(a)(6). But that

does not answer the question before us, which is whether it is

permissible to strip a prisoner of a constitutional right as a

means of forcing participation. We have no quarrel with the

proposition that the state may use other penalties or induce

‐

ments.

Indeed, we can assume that there is still some room for

parole revocation, depending on the circumstances. But that

measure must be used with care. Other courts of appeals that

have evaluated these programs since Lile have found that rev

‐

ocation of parole as a penalty for non

‐ participation is permis

‐

sible in situations where it does not automatically follow. See

Ainsworth

, 317 F.3d at 4–5 (noting that the denial of parole

“was not entirely automatic”); Thorpe

, 80 F. App’x 215 ( fi nding

no unconstitutional compulsion where an inmate’s refusal to

participate in a treatment program did not “automatically de

‐ prive him of consideration for parole”). In contrast, the Ninth

Circuit held that a district court’s decision explicitly to condi

‐

tion a prisoner’s supervised release on his successful comple

‐

tion of a treatment program similar to INSOMM violated the

inmate’s right to be free from compelled self

‐ incrimination.14 No. 17

‐ 3256

Antelope

, 395 F.3d at 1139. Just as in Antelope

, Lacy’s refusal to

incriminate himself has rendered him categorically ineligible

for the shorter term of con fi nement he otherwise would have

received. The Fifth Amendment does not allow Indiana to im

‐

pose such a penalty.

Finally, we stress that this case relates to the length of time

Lacy will be incarcerated, not to the conditions of his con fi ne

‐

ment. It thus falls on the habeas

‐ corpus side of the line drawn

by Preiser v. Rodriguez

, 411 U.S. 475 (1973), not the section 1983

side. In fact, Lacy originally brought his suit as a section 1983

action, but we held that a petition under section 2254 was the

only appropriate vehicle for his claim. Lacy v. Indiana

, 564 F.

App’x 844 (7th Cir. 2014) (unpublished order). His case is thus

distinguishable from Lile

, insofar as the sanctions that the Su

‐

preme Court endorsed in Lile were all conditions of con fi ne

‐

ment, not measures that would a ff ect duration.

III

We A FFIRM the judgment of the district court.