Compelling Histories - Mine and Theirs:
Before taking on my current assignment, I was part of the legal team that sought review in the Minnesota Supreme Court of a set of habeas corpus cases – State ex rel. Henderson and State ex rel. Johnson. At issue in these consolidated cases was the extent to which the Department of Corrections could modify, outward, the presumptive release date of inmates who had refused to participate in sex offender treatment.
The cases involve the intersection of some important facts about state prison and sex offender treatment: First, in Minnesota, it is presumed that an offender who is given a determinate prison sentences under our sentencing guidelines will serve two-thirds of that sentence in state prison and the last one-third of the sentence being supervised in the community. This presumption can be modified, and an offender held for a larger fraction of that sentence if, for example, the offender violates prison rules while incarcerated.
Likewise important, prison-based sex offender treatment as practiced in this state, obliges that the offender discuss (and confront the etiology of) the offense that sent him or her to state prison. A refusal to discuss the underlying crime could have one drummed out of the treatment program – and bombing out of the program could result in an unwelcome change in the presumptive release date. As the Commissioner of Corrections reasoned, offenders who refuse treatment present higher risks of re-offense and are not the best candidates for prompt return to the community.
Henderson and Johnson claimed that because of either a direct appeal, or a pending habeas petition, or the threat of a later perjury conviction, they could not be sanctioned with adjustments in their release dates for refusing to discuss the events that led to their convictions. The inmates argued that a change in the presumptive release date amounted to compulsion of self-incriminating testimony under the Fifth Amendment.
Agreeing, the Minnesota Supreme Court yesterday held that an earlier decision of the Court which permitted such adjustments in the released dates “was no longer good law.” Moreover, the Court appears to have added to the law in an important way; apparently holding that an offender who earlier testified at his trial, and asserted his innocence, may not be sanctioned for refusing to discuss his conviction before the limitations period for a perjury charge elapses.
Chief Justice Russell Anderson’s detailed analysis, and a spirited dissent from Justices G. Barry Anderson and Lorie Gildea, is accessible here.