Richard Roosevelt Bahr, Jr. is an admitted sex offender. In 2003, he was convicted in Wasco County, Oregon of third-degree rape—a Class C felony with a person under 16 years of age. He was given a six-year term followed by three years of supervised release which required participation in a sex offender program. The program mandated that he take a “full disclosure” polygraph test concerning his sexual history. Bahr provided a program counselor with the following admissions of past sexual misconduct.
• As a minor, he had sexual contact with six other minors.
• As an adult, he had sexual contact with seven different minors.
• Between ages eighteen and twenty, he had sexual encounters with 8 to 10 sexual encounters with fifteen or sixteen year old girls.
• In a workbook session of the program, he admitted he had sexually abused 18 children.
While still under supervised release, Bahr was arrested in 2010 for possessing more than 600 images depicting sexual abuse of children. He was indicted by a Portland federal grand jury. In June 2012, he pleaded guilty to two counts of possessing child pornography. U.S. District Court Judge Anna J. Brown imposed a harsh 20-year term of imprisonment followed by a life term of supervised release which included what the U.S. Attorney’s Office in Oregon said in a post-sentence statement “stringent conditions of supervision, including prohibitions on associating with minors and frequenting places where children congregate, and restrictions his use of computers … [and participation] in mental health and sex offender treatment, and must register as a sex offender.”
In imposing sentence, Judge Brown not only noted the volume, graphic nature, and sadistic content of the images but Bahr’s background and history of sexual misconduct with minors. Saying that Bahr was a recidivism candidate, the judge said the stern sentence was “enough, but not too much to protect the public, to deter similar conduct in the future, and to take into account the gravity of Bahr’s conduct and the harm done to the children depicted in the images, who were abused in ‘exceedingly outrageous ways.”
The problem is the sentence was unconstitutional—a legal fact both the trial judge and the U.S. Attorney’s office should have known.
The U.S. Supreme Court in 1999, Mitchell v. United States, recognized that the bar against using “compelled statements” in violation of the Fifth Amendment extends to the sentencing phase of a criminal case. In 2005, the Ninth Circuit Court of Appeals, which has jurisdiction over Oregon criminal cases, held that the Fifth Amendment protection against compelled statements apply to “separate criminal proceedings” i.e., compelled statements given in an earlier criminal proceeding cannot be used in a later, unrelated criminal proceeding.
“Full disclosure” polygraph statements, required as a conditions of court ordered probation, given without a guarantee of immunity in a sex offender treatment program are “compelled statements” within the meaning of the Fifth Amendment.
The U.S. Probation Office conducted a “presentence report” in Bahr case which was submitted to Judge Brown to consider in determining what type of sentence to impose. The PSR contained all the “full disclosure” statements Bahr gave in the sex offender treatments about his sexual misconduct history. Judge Brown relied upon this sexual conduct history to fashion her harsh sentence. The Ninth Circuit on September 16, 2013 rebuked the judge’s sentence, saying that the “treatment disclosures violated Bahr’s Fifth Amendment rights.”
Judge Brown and the U.S. Attorney’s office were aware that in 2005 the appeals court held that when the government conditions a “supervised release” on compliance with a “full disclosure” of past sexual misconduct without any provision of immunity for the disclosed conduct, “it unconstitutionally compels self-incrimination.” Bahr was required, as the Ninth Circuit noted, “to give full disclosure without a guarantee of immunity, and with specific acknowledgement from his parole officer that crimes would be reported to the district attorney and could be prosecuted.”
Thus, there was a threat of future criminal prosecution of Bahr for any disclosed sexual misconduct. The question then turned to whether the compelled statements through “full disclosure” were sufficiently coercive as to trigger Fifth Amendment protections. “Bahr faced terms of supervised release that mandated his successful completion of a treatment program,” the Ninth Circuit said, addressing this question. “A refusal or failure to complete the program would in fact subject him to revocation and further incarceration.”
In effect, Bahr had no choice. He was forced to provide “full disclosure” through a polygraph exam and written questions about any prior sexual misconduct lest he face a return to prison. The government tried to get around this constitutional issue by informing the appeals court that Bahr’s mother, Sandra Brown, who had been called by the government, testified about admissions her son had made to her concerning his prior sexual misconduct. The Ninth Circuit brushed aside this argument, pointing out that Judge Brown had relied on the “full disclosure” statements as the basis for admitting Sandra Brown’s testimony.
The appeals court vacated Bahr’s sentence, remanding his case for resentencing absent the “full disclosure” statements. The court did leave open Judge Brown’s discretion as to whether Sandra Brown’s testimony could be used to determine a “valid sentence.”
The Bahr case is interesting for yet another reason. Many sex offender treatment programs in the prison setting are also mandatory and require “full disclosure” of past sexual misconduct. Failure to participate in these treatment programs can result in loss of goodtime and/or the offender being placed in extended lockdown with loss of privileges. The problem is that participation is these “full disclosure” statements are being used as evidence to support indefinite civil commitment of the offender upon completion of his prison sentence. While U.S. Supreme Court has held in a 4-1-4 decision in a 42 U.S.C. § 1983 proceedings that since prisoners do not enjoy the “full protection of the Fifth Amendment,” prison officials can impose sanctions against sex offenders who refuse to participate in treatment programs. But this fractured 2002 decision, McKune v. Lile, left unanswered the question of whether the decision to participate and disclose without a guarantee of immunity would trigger Fifth Amendment protections sufficient to prevent such coercive “compelled” disclosures from being used in a civil commitment proceeding. It would seem that this issue would hinge on whether civil commitment is a purely “civil” or a collateral “criminal” penalty. And that is another discussion altogether…