Bennett v. Bigelow , 387 P.3d 1016 ( 2016 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2016 UT 54
IN THE
SUPREME COURT OF THE STATE OF UTAH
BRENDT THOMAS BENNETT,
Appellant,
v.
ALFRED BIGELOW, et al.,
Appellee.
No. 20140680
Filed November 25, 2016
On Petition for Extraordinary Relief
Sixth District, Manti
The Honorable Marvin D. Bagley
No. 20140683
Attorneys:
Linda M. Jones, Troy L. Booher, Erin B. Hull, Salt Lake City,
for appellant
Sean D. Reyes, Att‘y Gen., Brent A. Burnett, Sharell S. Reber,
Asst. Att‘ys Gen., Salt Lake City, for appellee
CHIEF JUSTICE DURRANT authored the opinion of the court, in which
ASSOCIATE CHIEF JUSTICE LEE, JUSTICE DURHAM,
and JUSTICE HIMONAS joined.
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶ 1 Brendt Bennett claims that his Fifth Amendment rights were
violated when he was required to disclose his entire sexual history,
including any uncharged sexual crimes, as part of his sex offender
treatment during parole. He refused to make these disclosures and
his parole was revoked, requiring him to return to prison to
potentially serve the remainder of his indeterminate six year to life
sentence. The district court dismissed Mr. Bennett‘s Fifth
Amendment challenge to the parole revocation at summary
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Opinion of the Court
judgment. We hold that Mr. Bennett has established that genuine
issues of material fact exist that preclude the grant of summary
judgment and reverse.
Background
¶ 2 Mr. Bennett pleaded guilty to one count of rape of a child, a
first-degree felony, in August 2000. The district court sentenced him
to an indeterminate sentence of six years to life. In 2007, after
Mr. Bennett successfully completed an in-prison sex offender
treatment program, the Board of Pardons and Parole (Board) granted
him his first opportunity to be released on parole. He was paroled to
the Bonneville Community Correctional Center (BCCC). As a
condition of parole, Mr. Bennett was to successfully complete the
BCCC sex offender program. The Department of Corrections was
instructed to immediately notify the Board if Mr. Bennett was
removed from the program.
¶ 3 As part of his first attempt in the BCCC program, Mr.
Bennett was required to give a complete sexual history, including
any past charged or uncharged sex offenses. He was given several
assignments and other requirements in order to successfully
complete the BCCC program, including treatment journals,
psychosexual testing, an autobiography, and a polygraph test. One
such assignment was to complete an ―Offense Report.‖ This report
had two purposes: ―First, to help [the offender] make a complete
disclosure which is essential to a successful treatment experience.
Second, to assist [the offender] in gaining a thorough picture of all
details of [his or her] offense(s).‖ The instructions to the report
―encouraged [the offender] to complete the assignment in a detailed
way.‖ As part of this report, the offender had to complete a ―Victim
Form‖ and a ―Victim Narrative.‖
¶ 4 The instructions to the Victim Form stated that the offender
must complete a separate form for ―[e]very person with whom [the
offender] had sexual contact [before the offender was 18 years of
age] who was 3 years or more[] younger than [the offender]‖ as well
as ―[e]very person under 18 with whom [the offender] had any
sexual contact‖ and ―[a]ny person with whom [the offender] had
non-consensual sexual contact‖ after the offender was 18 years old.
The form itself required the offender to provide the victim‘s name,
age, and sex as well as the offender‘s age at the time of first contact.
The offender was then required to indicate the type and amount of
sexual contact with the victim. The final part of the form required the
offender to describe the month and year of the first and last sexual
contact of any kind with the victim. The form did not indicate that
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the person completing it should limit his or her responses in any
way.
¶ 5 The instructions to the Victim Narrative required the
offender to ―[d]escribe all the activities . . . that are listed and
counted on the victim form‖ and suggested that the narrative ―[m]ay
be several pages for each victim.‖ There were nine specific
requirements to a victim narrative: first, the offender was required to
provide the victim‘s name or some other means to identify the
victim. The instructions warned the offender to ―not divulge the last
names of victims to the group‖ and to ―[u]se only the first name to
protect your victim[‘]s identities.‖ If the offender did not know or
could not recall the name, the offender should ―use some other
means to identify the victim, such as ‗My sister‘s 8-year[-]old
friend.‘‖ Second, the offender had to describe how the victim may
have been related to the offender and how the offender became
acquainted with the victim, with examples such as ―your sister or
brother or . . . your wife or girlfriend.‖ Third, the offender had to
provide the age of both the offender and victim when victimization
began.
¶ 6 Fourth, the offender was required to detail ―the entire
story,‖ including how the offender met the victim, how the offender
got the victim alone, and how the offender ―abused this victim,‖
including whether the offender‘s behavior or tactics changed in an
important way over time. Fifth, the offender had to provide the
number of times the victimization occurred. The instructions
provided as an example, ―I abused Susie twice a week for six
months.‖ Sixth, the offender had to describe where the abuse took
place, such as the victim‘s bedroom or in an abandoned building.
Seventh, the offender was required to explain what he or she did to
get the victim to cooperate. This required the offender to ―[d]escribe
what you said to the victim in order for the victim to feel the need to
cooperate‖ and to ―[t]hink about how your superiority may have
influenced the victim.‖ As examples, the instructions ask ―was she
your granddaughter, a stepchild, or 10 years younger.‖ Eighth, the
offender had to describe how he or she kept the victim from telling,
such as deceit, threats, or other intimidation. Ninth, the offender was
required to describe how the offense was discovered or, if it was not,
to ―write something [like] ‗She never reported the abuse and I was
never caught.‘‖ Mr. Bennett completed both the Victim Forms and
the Victim Narratives during his first attempt in the BCCC program.
Prior to doing so, he was not given a warning to limit his disclosures
in any way.
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¶ 7 Mr. Bennett was also required to undergo therapy during
his first attempt in the program. During this therapy, Mr. Bennett
orally disclosed detailed information about uncharged sex offenses
against five victims to his BCCC therapist, Ann Erickson, as part of
providing his sexual history disclosure. Ms. Erickson did not warn
him about any duty to report prior to this disclosure. Immediately
after Mr. Bennett had provided specific information about the five
victims, Ms. Erickson told him he should not have specifically
identified the victims as it triggered her duty to report the offenses.
Mr. Bennett states in his opening brief that the uncharged offenses he
initially reported were not incriminating because the State was
aware of these offenses before the initial prosecution and the statute
of limitation had run.
¶ 8 Also as part of Mr. Bennett‘s first attempt in the BCCC
program, Mr. Bennett was required to undergo a polygraph test
verifying that he had fully disclosed his sexual history. The
questions the examiner asked during Mr. Bennett‘s first exam during
his first parole and attempt in the program included the following:
―Since turning eighteen, have you sexually touched the genitals of
any minors other than your victim of conviction?‖; ‖Are you
intentionally withholding any of the sexual abuse you perpetrated
against [your victim of conviction]?‖; ―Do you have sexual victims
that you are intentionally withholding from your therapist?‖; ―Other
than what we discussed, have you forced anyone to have physical
sexual contact prior to your date of conviction?‖; and ―Have you
intentionally withheld any victims from your sexual history report?‖
Mr. Bennett invoked his Fifth Amendment right against self-
incrimination and, though he answered some of the questions in a
general way, he refused to provide more specific answers. He claims
that the ―treatment team pointedly demanded answers to questions
that would require me to incriminate myself,‖ and that BCCC staff
―called [his] non-incriminating answers ‗vague.‘‖ Mr. Bennett failed
the initial polygraph test and a second polygraph was scheduled. At
the second polygraph examination, he again invoked his Fifth
Amendment rights and again failed.
¶ 9 A warrant was subsequently issued for Mr. Bennett‘s arrest.
The authorities sought the warrant because of Mr. Bennett‘s failure
to successfully progress in the BCCC program. BCCC staff stated
that he presented ―as artificial and emotionally closed off in therapy‖
and was ―manipulative and admits to being purposefully deceitful.‖
Further, because of his shortcomings in the program, they
considered him ―a risk to community safety.‖ Mr. Bennett also
alleges that the BCCC program director, Mr. Greenberg, told him
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while arresting him that ―[y]ou claimed a Fifth Amendment right.
When you do that you can‘t complete the program.‖
¶ 10 Mr. Bennett challenged the State‘s grounds for revoking his
parole. The Board held a revocation and evidentiary hearing.1 The
State submitted the affidavit of BCCC supervisor Craig Greenberg
describing the general procedures for parolees in treatment.2 In the
affidavit, Mr. Greenberg stated that ―[o]ffenders are told how to
appropriately disclose uncharged victim information at many stages
of therapy, including the intake process, during their first treatment
team hearing, in their various group meetings, and reinforced
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1 In connection with this hearing, Mr. Bennett submitted the
affidavit of David Legrande Draper. In his affidavit, Mr. Draper
stated that he is a prison inmate who entered the Utah State Prison‘s
sex offender program in April 1991 and was subsequently
prosecuted for admissions that he was required to make during the
program. Specifically, Mr. Draper stated ―[t]hat the prison‘s Sex
Offender Program required full disclosure of all affiant‘s past
offenses,‖ and ―that ‗full disclosure‘ was defined as including names,
dates, places, and a full description of offenses.‖ Although
Mr. Bennett has attempted to rely on this affidavit in support of his
claim that he was asked to provide a ―self-incriminating full
disclosure‖ in the BCCC program, the affidavit describes only the
prison sex offender program, not the BCCC program, and so is
unhelpful.
2 We note that the State‘s reliance on the affidavit of the BCCC
program director is somewhat troubling. It does not appear that
Mr. Greenberg had personal knowledge of the events in question—
the various therapy sessions and polygraph tests—and that he only
provides generalized information as to program guidelines.
Although Mr. Greenberg may be a credible witness as to what
usually occurs in the program, at summary judgment ―it is not for a
court to weigh the evidence or assess credibility.‖ Webster v. Sill, 675
P.2d 1170, 1172 (Utah 1983). We are therefore reluctant to credit such
generalized statements about what Mr. Greenberg believes happens
in the program over the more specific statements of Mr. Bennett as to
what he claims actually did happen in his attempts in the program,
especially given that ―[a] single sworn statement is sufficient to
create an issue of fact‖ and we are required to construe all doubts,
uncertainties, and inferences in the light most favorable to
Mr. Bennett. Id.
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during offender‘s individual therapy sessions.‖ Further, Mr.
Greenberg stated that offenders are instructed to identify the victim
only by gender and age. And they are specifically warned ―not to
disclose identifying information such as the victim‘s name or other
identifying features, the nature of the relationship with the victim, or
where the abuse took place.‖ Mr. Greenberg also said that he was
―not aware of any offender who has been prosecuted during the 13
years [he has] been associated with the Sex Offender Treatment
program, based on the general disclosure information required as
part of the sex offender treatment.‖
¶ 11 In the affidavit, Mr. Greenberg also made clear the role of
the BCCC in relation to the decision to revoke parole. He stated that
the ―Department is under a statutory obligation to provide the Board
progress reports as to the sex offender‘s participation or
nonparticipation in sex offender treatment.‖ The BCCC staff makes
recommendations about parole status, but the Board makes the final
parole decisions. Mr. Greenberg observed that the Board has
―paroled sex offenders where a treatment staff‘s recommendation
has been against parole, and the Board has continued incarceration
where staff has recommended parole.‖ He described the BCCC staff
recommendations as one of ―a myriad of factors‖ the Board
considers when making parole determinations. Mr. Greenberg did
not discuss the specifics of Mr. Bennett‘s case.
¶ 12 After considering Mr. Bennett‘s self-incrimination claim, the
hearing officer found that the general program, as described by
Mr. Greenberg, would not have violated Mr. Bennett‘s rights. But it
appears that the hearing officer did intend to proceed with an
evidentiary hearing because of concerns about whether the program,
as applied to Mr. Bennett, may have violated his rights. 3 Mr. Bennett
pleaded no contest, however, in order to ―pursue that issue in
federal court.‖ The Board then revoked Mr. Bennett‘s parole.
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3 The hearing officer states that he ―found that under the
circumstance in which a parolee can be subject to re-incarceration
upon AP&P‘s [Adult Probation & Parole] request for a BOPP [Board
of Pardons and Parole] warrant for failure of the SOT [Sex Offender
Treatment] program in a CCC [Community Correctional Center] for
not providing information deemed necessary for SOT completion by
program administrators [], the parolee is compelled under the color
of authority to provide the information sought or face expulsion
from the program.‖
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Opinion of the Court
¶ 13 A month later, the Board again released Mr. Bennett on
parole on the condition that he successfully complete the BCCC sex
offender treatment program. It is not clear from the record what
requirements or assignments, aside from therapy, Mr. Bennett was
required to complete as part of his second attempt in the program, or
whether those requirements and assignments were the same as in his
first attempt, as his second attempt was short-lived. Indeed, his
second parole, which included his second attempt to successfully
complete the BCCC program, lasted only ten days.
¶ 14 The only evidence in the record as to what Mr. Bennett was
required to do in his second attempt indicates that he attempted to
engage in therapy and almost immediately failed the program.
Mr. Bennett claims that he
met with the sex offender program therapist for an
initial interview. The therapist made it clear to [him]
that in order to successfully complete the [B]CCC sex
offender program [he] must agree to abandon [his]
legal position about self-incrimination and provide a
self-incriminating full disclosure. [He] refused to do so
and asserted a claim against self-incrimination.
The BCCC puts forth a starkly different version of the encounter in
the ―treatment summary‖ it provided when it recommended that
parole be revoked. The treatment summary states that at this initial
meeting with his therapist—the beginning of his second attempt in
the BCCC program—Mr. Bennett read a statement attributed to his
lawyer that ―[i]f Mr. Bennett is removed from treatment[,] he will file
a lawsuit and will most likely prevail.‖ The therapist then reminded
Mr. Bennett that he needed to fully participate in the program
including ―discussing his issues of sexual deviancy‖ and reviewed
the BCCC‘s disclosure protocols. Specifically, Mr. Bennett ―was told
the program expectations regarding uncharged crimes are that he
disclose age and gender of the victim and the deviant sexual act
perpetuated. He was notified that he [was] not expected to provide
any identifying information that would trigger a duty to report.‖ Mr.
Bennett responded that ―he knew this and that he and treatment
staff had ‗gone over it many times,‘‖ but that he was still invoking
the Fifth Amendment to refuse to answer what he considered to be
incriminatory questions.
¶ 15 The BCCC consequently sought a warrant, stating in its
Warrant Request & Parole Violation Report that Mr. Bennett was
―being removed from [the program] because he demonstrates an
unwillingness to comply with treatment guidelines . . . and program
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Opinion of the Court
expectations.‖ The report also noted that this was the same behavior
and unwillingness that caused his first parole to be revoked. The
Board issued another warrant for his arrest and eventually revoked
its second grant of parole to Mr. Bennett.
¶ 16 Mr. Bennett filed a Petition for Extraordinary Relief in
September 2009 against Warden Alfred Bigelow and the Utah Board
of Pardons and Parole (collectively, ―State‖), claiming, inter alia, that
the BCCC program unconstitutionally required him to incriminate
himself. With his petition, Mr. Bennett included a request that the
court appoint pro bono counsel, which the court denied. The State
filed a motion for summary judgment, which Mr. Bennett opposed,
again asking the court to appoint counsel. The district court granted
the State‘s motion after finding that no issues of material fact existed
that would preclude summary judgment. The court also again
denied Mr. Bennett‘s request for counsel, concluding that the second
request was, under the applicable Utah Rules of Civil Procedure, an
inappropriate motion to reconsider the court‘s prior denial. Mr.
Bennett now appeals the district court‘s refusal to appoint counsel as
well as its grant of summary judgment on the constitutionality of the
BCCC‘s requirement that he disclose previously undisclosed
criminal acts. We have jurisdiction pursuant to Utah Code section
78A-3-102(3)(j).
Standard of Review
¶ 17 Mr. Bennett raises two issues on appeal. First, he asks us to
review the district court‘s decision to deny his second request for
appointment of counsel as a misapplication of the Rules of Civil
Procedure. While a decision to reconsider an issue already ruled
upon is in the discretion of the district court,4 the interpretation of
the rules of civil procedure is a legal issue we review for correctness.
Second, he asks us to review the district court‘s decision on
summary judgment that the State did not violate Mr. Bennett‘s Fifth
Amendment rights. ―[W]e review a grant of ‗summary judgment for
correctness, granting no deference to the [lower] court.‘‖5 Summary
judgment is appropriate only ―when the record shows that there is
no genuine issue as to any material fact and that the moving party is
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4 See IHC Health Servs. Inc. v. D & K Mgmt., Inc., 2008 UT 73, ¶ 27,
196 P.3d 588.
5 Ross v. State, 2012 UT 93, ¶ 18, 293 P.3d 345 (second alteration in
original) (citation omitted).
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entitled to a judgment as a matter of law.‖6 In reviewing the trial
court‘s decision, ―we view the facts and all reasonable inferences
drawn therefrom in the light most favorable to the nonmoving
party,‖ which in this case is Mr. Bennett.7
Analysis
¶ 18 Our discussion of Mr. Bennett‘s claims proceeds as follows:
First we address his argument that the trial court erred in concluding
that rule 54 of the Utah Rules of Civil Procedure prevented it from
considering his second request for counsel. We hold that the court
erred in its interpretation of the rule and instruct the court, on
remand, to reconsider whether counsel should be appointed for Mr.
Bennett. We then address his claim that the requirement that he
disclose charged and uncharged sex crimes as part of his sex
offender treatment on parole violated his Fifth Amendment right to
be free from compelled self-incrimination. We first note that Mr.
Bennett has established standing to assert this claim and then
address the claim on the merits, concluding that Mr. Bennett has
established that genuine issues of material fact exist that preclude
summary judgment. Accordingly, we reverse the grant of summary
judgment and remand.
I. The Trial Court Erred by Refusing to Consider
Whether to Appoint Counsel
¶ 19 Mr. Bennett twice requested that he be appointed counsel:
First when he filed his petition and second after he filed his response
to the State‘s motion for summary judgment. The trial court,
recognizing that it had the discretion to appoint counsel under Utah
Code section 78B-9-109(1), denied the first request based on its
evaluation of the two factors found in section 78B-9-109(2).8 When
_____________________________________________________________
6 Id. (citation omitted).
7 Id. (citation omitted).
8 The two factors are ―whether the petition . . . contains factual
allegations that will require an evidentiary hearing‖ and ―whether
the petition involves complicated issues of law or fact that require
the assistance of counsel for proper adjudication.‖ UTAH CODE § 78B-
9-109(2)(a)–(b). The court concluded that ―an evidentiary hearing
[was] unnecessary‖ because the ―case pertains to actions by the
Board of Pardons and Parole which all have a record.‖ It also
determined that Mr. Bennett‘s case did ―not include complicated
issues of law or fact that would require the assistance of counsel.‖
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Opinion of the Court
Mr. Bennett again requested that counsel be appointed, the court
considered the request to be a motion to reconsider its earlier denial
of Mr. Bennett‘s request for counsel. The court found ―no provision
in the [Rules of Civil Procedure] for motions for reconsideration‖
and stated that rule 54, the basis for Mr. Bennett‘s argument, applies
only to ―judgments,‖ which are ―order[s] from which an appeal lies.‖
Since the prior denial was not such an order, the court concluded
that it did not have the ability to reconsider it and again denied
Mr. Bennett‘s request.
¶ 20 The trial court‘s conclusion that rule 54 prevented it from
reconsidering Mr. Bennett‘s request for counsel was erroneous.
Indeed, the parties agree as to this point. Rule 54 contemplates
orders and other decisions that ―adjudicate[] fewer than all the
claims or the rights and liabilities of fewer than all the parties.‖9 Such
orders do ―not end the action . . . and may be changed at any time before
the entry of judgment.‖10 Although ―this court has consistently held
that our rules of civil procedure do not provide for a motion for
reconsideration of a trial court‘s order or judgment,‖ a motion such
as Mr. Bennett‘s is, ―in essence, not a motion for reconsideration at
all, but simply a reargument‖ of the motion or request that gave rise
to the prior order.11 And under rule 54, ―a trial court is free to
entertain [the reargument] at any point prior to entry of a final order
or judgment.‖12
¶ 21 Accordingly, the trial court erred when it concluded that
rule 54 prohibited its consideration of Mr. Bennett‘s second request
for counsel. And because we reverse the grant of summary
judgment, the court on remand should consider whether counsel
should be appointed for future proceedings under Utah Code section
78B-9-109.13 We turn now to the issue of whether Mr. Bennett has
standing to assert a Fifth Amendment challenge.
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9 UTAH R. CIV. P. 54(b)
10 Id. (emphasis added).
11 Ron Shepherd Ins. Inc. v. Shields, 882 P.2d 650, 653 n.4 (Utah
1994).
12 Id.
13 We decline to resolve this issue on appeal as we recognize that
the trial court will be in a far better position to weigh the particular
circumstances of the case. We note only that, given the result we
(Continued)
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II. Mr. Bennett Has Standing to Assert His Fifth Amendment Claim
¶ 22 After oral argument in this case, we asked the parties to
brief the question of whether Mr. Bennett had established that he
had standing to assert his Fifth Amendment claim, in order to ensure
that we had jurisdiction.14 After reviewing the parties‘ briefs and the
record in this case, we conclude that Mr. Bennett has established
standing under the standard articulated in Brown v. Division of Water
Rights.15 As we discuss in the next section, Mr. Bennett has
established that issues of material fact exist as to whether he was
compelled to provide incriminating information as part of the BCCC
program. Thus, Mr. Bennett has established ―a reasonable
probability‖ of an injury16 that has at least ―some causal
relationship‖ with ―the governmental actions and the relief
requested.‖17 And because a judicial order reinstating Mr. Bennett‘s
parole and forbidding the alleged unconstitutional questioning
would redress Mr. Bennett‘s alleged injury18—the violation of his
Fifth Amendment rights in the program—Mr. Bennett has
established each prong of our three-part standing test.19 We turn
reach in this case today, there exist issues of fact that remain to be
resolved upon remand.
14See Brown v. Div. of Water Rights, 2010 UT 14, ¶¶ 12–13, 228 P.3d
747 (holding that standing is a jurisdictional issue that ―raise[s]
fundamental questions regarding a court‘s basic authority over the
dispute‖).
15 Id. ¶¶ 14–15, 17 (noting that standing requires a party to
establish ―injury, causation, and redressability,‖ which is ―evaluated
under the standard used for a dispositive motion at the relevant
stage of litigation‖).
16 Id. ¶ 19.
17 Jenkins v. Swan, 675 P.2d 1145, 1150 (Utah 1983).
18See id. (stating that standing requires a plaintiff to establish that
―the relief requested is substantially likely to redress the injury
claimed‖).
19 Cf. United States v. Antelope, 395 F.3d 1128, 1132–33 (9th Cir.
2005) (holding that a probationer‘s Fifth Amendment claim was
justiciable because ―the government violated his Fifth Amendment
right when it conditioned his probation and supervised release on
the submission of a sexual autobiography that we may assume
would have revealed prosecutable offenses‖).
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Opinion of the Court
now to our analysis of the merits of Mr. Bennett‘s Fifth Amendment
claim.
III. Genuine Issues of Material Fact Exist as to Mr. Bennett‘s
Fifth Amendment Claim
¶ 23 The Fifth Amendment of the United States Constitution
guarantees that no person ―shall be compelled in any criminal case
to be a witness against himself.‖20 The protections offered by the
Fifth Amendment extend beyond the context of a criminal trial,
granting an individual the right ―not to answer official questions put
to him in any . . . proceeding, civil or criminal, formal or informal,
where the answers might incriminate him in future criminal
proceedings.‖21 And this right is not lost by conviction and
incarceration. Indeed, the United States Supreme Court has
specifically held that ―[a] defendant does not lose [Fifth
Amendment] protection by reason of his conviction of a crime;
notwithstanding that a defendant is imprisoned or on probation at
the time he makes incriminating statements.‖22 Thus, Mr. Bennett
retains the rights guaranteed by the Fifth Amendment throughout
his incarceration and any periods of parole.
¶ 24 Whether Mr. Bennett may properly invoke the Fifth
Amendment to avoid answering questions depends on whether he
can satisfy a two-prong test: ―(1) that the testimony desired by the
government carried the risk of incrimination . . . , and (2) that the
penalty he suffered amounted to compulsion.‖23 Because Mr.
Bennett‘s claim was dismissed on summary judgment, he must
establish that genuine issues of material fact exist as to both of these
prongs. We discuss each in turn, beginning with whether the BCCC
program‘s questioning carried a risk of incrimination and ending
with whether the revocation of parole for refusing to answer
incriminating questions amounts to compulsion. We conclude that
Mr. Bennett has demonstrated issues of material fact as to both
prongs and reverse the grant of summary judgment.
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20 U.S. CONST. amend. V.
21 Minnesota v. Murphy, 465 U.S. 420, 426 (1984) (citation omitted).
22 Id.
23 United States v. Antelope, 395 F.3d 1128, 1134 (9th Cir. 2005)
(citations omitted).
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A. There Are Issues of Material Fact as to Whether Mr. Bennett’s
Disclosures in the BCCC Program Would Be Incriminatory
¶ 25 The first prong of the Fifth Amendment analysis asks
whether ―the testimony desired by the government carried the risk
of incrimination.‖24 The trial court did not address this prong of the
analysis in making its decision, instead relying entirely on cases
addressing the issue of compulsion: McKune v. Lile25 and State v.
Pritchett.26 In its brief responding to Mr. Bennett, the State likewise
did not argue that the BCCC questioning posed no risk of
incrimination, even though Mr. Bennett had argued that he did
indeed face a risk of incrimination due to the program‘s requirement
that he disclose charged and uncharged sex crimes. Instead, the State
rested its argument entirely on its claim that, even if the required
information was incriminating, Mr. Bennett was not compelled to
provide the information. Accordingly, the State has effectively
conceded that an issue of fact exists as to whether the BCCC
questioning posed some risk of incrimination. This position is
understandable given the low bar necessary to establish such a risk.27
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24 Id. (citations omitted).
25 536 U.S. 24 (2002).
26 2003 UT 24, 69 P.3d 1278.
27 The United States Supreme Court ―has always broadly
construed [Fifth Amendment] protection to assure that an individual
is not compelled to produce evidence which later may be used
against him.‖ Maness v. Meyers, 419 U.S. 449, 461 (1975). Accordingly,
the definition of what constitutes ―incriminating‖ information is
broad: ―[t]he protection does not merely encompass evidence which
may lead to criminal conviction, but includes information which
would furnish a link in the chain of evidence that could lead to
prosecution, as well as evidence which an individual reasonably
believes could be used against him in a criminal prosecution.‖ Id.
Therefore, ―[n]ot much is required . . . to show an individual faces
some authentic danger of self-incrimination . . . , as the privilege
‗extends to admissions that may only tend to incriminate.‘‖ United
States v. Rivas-Macias, 537 F.3d 1271, 1278 (10th Cir. 2008) (citation
omitted) (quoting Emspak v. United States, 349 U.S. 190, 197 (1955)).
And the witness need not specifically identify how an answer to a
question would be incriminating, as ―it need only be evident from
the implications of the question, in the setting in which it is asked,
(Continued)
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¶ 26 The State did cursorily suggest in its supplemental briefing
on standing that because the BCCC program director,
Mr. Greenberg, stated that Mr. Bennett was warned to not provide
incriminating information as per program policies, there was no risk
of incrimination.28 Even if we were to permit the State to raise this
issue for the first time by way of supplemental briefing on a
jurisdictional issue and to assume it to be adequately briefed, all the
director‘s statement does is establish that an issue of fact remains as
to what Mr. Bennett was required to disclose. Mr. Greenberg‘s
statement that the BCCC program does not require offenders to
―disclose identifying information such as the victim‘s name . . . the
nature of the relationship with the victim, or where the abuse took
place‖ is specifically contradicted by the Victim Form and Victim
Narrative. These reports require offenders to disclose the victim‘s
name (possibly limited to only the first name), the relationship
between the victim and the offender (such as ―your sister or brother
or . . . your wife or girlfriend‖), how the offender met and became
aware of the victim, how the offender exerted control over the victim
(such as by using a relationship like ―she [was] your granddaughter
[or] a stepchild‖), and where the abuse took place. We therefore hold
that Mr. Bennett has established that a genuine issue of material fact
exists as to the first prong of the Fifth Amendment analysis—
whether he faced a risk of incrimination. We turn now to the second
prong of the test: whether Mr. Bennett has established that an issue
of fact exists as to whether he was compelled to answer the
potentially incriminating questions.
B. There Are Issues of Material Fact as to Whether Mr. Bennett Was
Compelled to Provide the Incriminatory Information
¶ 27 The Fifth Amendment protection against self-incrimination
does not extend to all circumstances in which the State asks
incriminating questions. Instead, it applies only when the State
that a responsive answer to the question or an explanation of why it
cannot be answered might be dangerous because injurious
disclosure could result.‖ Hoffman v. United States, 341 U.S. 479, 486–
87 (1951). Ultimately, we will uphold the invocation of the Fifth
Amendment unless it is ―‗perfectly clear, from a careful
consideration of all the circumstances in the case, that the witness is
mistaken, and that the answer(s) cannot possibly have such
tendency‘ to incriminate.‖ Id. at 488 (citations omitted).
28 The State raised this point to argue that Mr. Bennett could not
satisfy the injury prong of our standing test. See supra Part II.
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―threaten[s] to inflict potent sanctions unless the constitutional
privilege is surrendered.‖29 There must be some ―attempt, regardless
of its ultimate effectiveness, to coerce a waiver of the immunity.‖30
Of course, the Fifth Amendment ―does not prohibit all penalties
levied in response to a person‘s refusal to incriminate himself,‖ as
only ―some penalties are so great as to ‗compe[l]‘ [incriminating]
testimony.‖31 Thus, the second prong of the Fifth Amendment
analysis requires us to determine whether the State has either
explicitly or implicitly threatened to impose some penalty that ―rises
to a level where it is likely to ‗compe[l]‘ a person ‗to be a witness
against himself.‘‖32
¶ 28 The question before us is whether Mr. Bennett faced a threat
of a significant penalty—revocation of his parole—and whether that
penalty rises to the level of compulsion. As to the first question, the
United States Supreme Court has indicated that there is an express
or implied threat of revocation of probation33 when the state imposes
as a condition of probation an ―obligation that [the probationer]
refrain from raising legitimate objections to furnishing information
that might lead to his conviction for another crime.‖34 Thus, we must
look to whether Mr. Bennett has established that an issue of fact
remains as to whether his parole was conditioned on his waiver of
any Fifth Amendment claims regarding the information that was
requested.
¶ 29 When the record and all inferences are viewed in the light
most favorable to Mr. Bennett, we believe that there is a dispute of
fact as to whether the State actually threatened Mr. Bennett with
revocation of parole for the invocation of the Fifth Amendment.
Mr. Bennett alleges that the BCCC program director, Mr. Greenberg,
explained why Mr. Bennett‘s first parole was revoked by stating,
_____________________________________________________________
29 Lefkowitz v. Cunningham, 431 U.S. 801, 805 (1977).
30 Id. at 806 (citation omitted).
31 McKune v. Lile, 536 U.S. 24, 49 (2002) (O‘Connor, J., concurring)
(first alteration in original).
32 Id.
33As we discuss below, we see no significant difference between
probation and parole and accordingly conclude that the Supreme
Court‘s guidance is applicable here.
34 Minnesota v. Murphy, 465 U.S. 420, 437 (1984).
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Opinion of the Court
―[y]ou claimed a Fifth Amendment right. When you do that you
can‘t complete the program.‖ This allegation colors Mr. Bennett‘s
second parole and attempt in the program—the attempt at issue in
this case—because the Warrant Request & Parole Violation Report
submitted by the State after Mr. Bennett‘s initial therapy session
recommended that Mr. Bennett‘s second parole be revoked because
he was acting in the same way as he did during his first parole and
was failing again to meet program expectations.35 Thus, there is a
reasonable inference that Mr. Bennett‘s second parole was
conditioned, as was his first, on a requirement that he answer
questions without raising a Fifth Amendment claim.36
¶ 30 This inference is supported by the other portions of the
Report. The Report details that during the therapy session, Mr.
Bennett acknowledged that he had been informed ―many times‖ that
―he [was] not expected to provide any identifying information that
would trigger a duty to report‖ and that he was being required only
to ―disclose age and gender of the victim and the deviant sexual acts
he perpetrated.‖ Although the record is clear that Mr. Bennett was
warned not to give the name of the victim, the State does not define
what information was considered ―identifying‖—and thus not
required—and what information was considered necessary to
explain ―the deviant sexual acts [Mr. Bennett] perpetrated.‖ And
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35The Report stated: ―This was Mr. Bennett‘s second parole. He
has only been on parole for approximately 10 days. His first parole
was violated for similar type behavior [sic] and an unwillingness to
comply with sex offender treatment and parole expectations.‖
36 See USA Power, LLC v. PacifiCorp, 2010 UT 31, ¶ 38, 235 P.3d 749
(holding that creation of an inference from an undisputed fact can
create a genuine issue of fact sufficient to preclude summary
judgment). We note that the record contains an allegation that Mr.
Bennett‘s second parole was expressly conditioned on his surrender
of his Fifth Amendment claim. In his verified petition, Mr. Bennett
alleged that during the therapy session in his second attempt in the
program, ―[t]he therapist made it clear to [him] that in order to
successfully complete the [B]CCC sex offender program [he] must
agree to abandon [his] legal position about self-incrimination and
provide a self-incriminating full disclosure.‖ But Mr. Bennett failed
to cite this allegation in his opposition to the State‘s motion for
summary judgment below, and accordingly we cannot consider it as
part of his argument on appeal. We refer to this allegation only to
highlight the factual issues that remain to be resolved on remand.
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given the explicit disclosure requirements discussed above, we
cannot say that the program‘s disclosure requirements—even limited
as suggested by the Parole Violation Report—did not bear some risk
of incrimination.37 Thus, despite Mr. Bennett‘s acknowledgement of
the limited disclosure requirements during his second attempt in the
program, when the record and all inferences are viewed in the light
most favorable to Mr. Bennett, there remains an issue of fact whether
a condition that Mr. Bennett participate in a program with the
acknowledged limitations effectively conditioned Mr. Bennett‘s
parole on his waiver of his Fifth Amendment claim.38
_____________________________________________________________
37 For example, if Mr. Bennett were required to indicate that he
obtained control over his victims in order to perform his deviant acts
by using his familial relationship with the victim, this information, in
connection with the age and gender of the victim, could ―tend to
incriminate.‖ Emspak v. United States, 349 U.S. 190, 197 (1955). And
the circumstances of the questioning, when combined with Mr.
Bennett‘s reluctance to respond even after the instruction to not
provide a name, suggest that it would be reasonable to infer that
truthful answers to even the limited questions could potentially
reveal incriminating information. See United States v. Von Behren, 822
F.3d 1139, 1145 (10th Cir. 2016) (―Given his reluctance to submit to
the polygraph, we infer that Mr. Von Behren‘s answers to these
questions would reveal past sex crimes.‖); United States v. Antelope,
395 F.3d 1128, 1135 (9th Cir. 2005) (―Based on the nature of this
[sexual polygraph] requirement and [Mr.] Antelope‘s steadfast
refusal to comply, it seems only fair to infer that his sexual
autobiography would, in fact, reveal past sex crimes.‖).
38 Cf. Von Behren, 822 F.3d at 1150 (holding that the state
threatened a sex offender with revocation of supervised release by
conditioning the release on successful completion of a sex offender
treatment program that required an offender to truthfully respond
during a polygraph test); Antelope, 395 F.3d at 1138–39 (9th Cir. 2005)
(same); United States v. York, 357 F.3d 14, 24–25 (1st Cir. 2004)
(holding that there was no threat of revocation of supervised release
because the court construed a condition of the release as prohibiting
revocation based on a valid assertion of the Fifth Amendment);
United States v. Lee, 315 F.3d 206, 212 (3d Cir. 2003) (holding that
there was no threat of revocation because the offender‘s probation
was not conditioned on a waiver of Fifth Amendment claims).
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Opinion of the Court
¶ 31 There is a similar dispute of fact as to whether the State
would necessarily revoke Mr. Bennett‘s parole for failing to waive
his Fifth Amendment claim. The State points to Mr. Greenberg‘s
affidavit, wherein he stated that while the BCCC staff offer
recommendations about parole status, such recommendations are
not binding on the Board, which is the ultimate decision maker. Mr.
Greenberg also claimed that the Board has ―paroled sex offenders
where a treatment staff‘s recommendation has been against parole,
and the Board has continued incarceration where staff has
recommended parole.‖ Mr. Bennett responds by pointing to the fact
that completion of the BCCC (or other similar) sex offender
treatment program has been an express condition of both of his
paroles. And failure to adequately discuss uncharged sexual conduct
because of his Fifth Amendment claim has caused Mr. Bennett to fail
the program on two separate occasions, leading to the revocation of
his parole in both instances. Accordingly, there are issues of fact as to
whether the State threatened to revoke Mr. Bennett‘s parole for
refusing to waive his self-incrimination claim.
¶ 32 Even assuming that the State threatened Mr. Bennett with
the revocation of his parole in order to encourage him to waive his
Fifth Amendment rights, however, the question remains as to
whether such a threat rises to the level of compulsion. As we discuss
below, we join the Ninth and Tenth Circuits in concluding that the
threat of revocation of the conditional liberty interest obtained by a
parolee does rise to the level of compulsion. Accordingly, we hold
that Mr. Bennett has established that a genuine issue of material fact
exists as to whether he was compelled to offer incriminatory
testimony.
¶ 33 The State‘s entire argument rests on its assertion that
Mr. Bennett cannot claim that the revocation of parole is compulsory
because he has no constitutional or other inherent right to parole.39
Although this is true, it is beside the point. The question before us
today is whether the State can permissibly revoke parole once it is
given, not whether the State could have permissibly withheld the
opportunity for parole in the first place. ―There is a crucial
distinction between being deprived of a liberty one has, as in parole,
_____________________________________________________________
39 See Malek v. Haun, 26 F.3d 1013, 1015 (10th Cir. 1994) (―Not only
is there no constitutional or inherent right to receive parole prior to
the expiration of a valid sentence, but, absent state standards for the
granting of parole, decisions of a parole board do not automatically
invoke due process protections.‖).
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Opinion of the Court
and being denied a conditional liberty that one desires.‖40 Although
―[p]arole is not absolute liberty as all law-abiding citizens enjoy, but
only conditional liberty dependent upon compliance with parole
restrictions,‖41 it is a liberty interest ―that warrants constitutional
protection.‖42As the United States Supreme Court has recognized:
Though the State properly subjects [a parolee] to many
restrictions not applicable to other citizens, his
condition is very different from that of confinement in
a prison. . . . [T]he liberty of a parolee, although
indeterminate, includes many of the core values of
unqualified liberty and its termination inflicts a
‗grievous loss‘ on the parolee and often on others.43
Thus, there is an important distinction between a decision to grant or
deny parole to an inmate and a decision to revoke parole once
granted.
¶ 34 This distinction renders inapposite the majority of the cases
relied upon by the trial court and the State. The trial court‘s decision
was based on a United States Supreme Court case, McKune v. Lile,44
and our own case, State v. Pritchett.45 The State likewise relies on
those cases and also cites a number of cases from other jurisdictions.
These cases are all centered in the ―prison context‖46 and suggest
that denial of certain benefits in prison may not necessarily rise to the
level of compulsion.47 For example, in McKune, a plurality of the
_____________________________________________________________
40Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 9
(1979).
41 Ward v. Smith, 573 P.2d 781, 782 (Utah 1978).
42 Linden v. State, Dep’t of Corr., 2003 UT App 402, ¶ 13, 81 P.3d
802.
43 Morrissey v. Brewer, 408 U.S. 471, 482 (1972).
44 536 U.S. 24 (2002).
45 2003 UT 24, 69 P.3d 1278.
46McKune, 536 U.S. at 40 (stating that constitutional principles
―are not easily extended to the prison context‖) (Kennedy, J.,
concurring)).
47See, e.g., DeFoy v. McCullough, 301 F. App‘x 177, *3–*4 (3d Cir.
2008) (holding that a denial of reparole for failure to admit to sex
offenses during treatment did not constitute compulsion); Searcy v.
(Continued)
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Opinion of the Court
United States Supreme Court rejected the argument ―that the denial
of discrete prison privileges for refusal to participate in a [pre-
release, in-prison] rehabilitation program amounts to
unconstitutional compulsion.‖ Likewise, in Pritchett, we held that a
48
statute that ―requires [an inmate] to admit the offense for which he
has been convicted in order to be considered for probation‖ did not
violate the Fifth Amendment.49 But the question of what types of in-
prison benefits may be denied or revoked without violating the Fifth
Amendment—a question that has not yet been fully answered by
this court or the United States Supreme Court50—is not before us
today. Thus, the cases relied upon by the State simply do not address
the question that we must decide: whether the revocation of parole—
as opposed to the disqualification of an inmate for a grant of
parole—qualifies as compulsion.
¶ 35 The case that does control this issue is the United States
Supreme Court case of Minnesota v. Murphy,51 where the Court
recognized that revocation of probation qualifies as compulsion. In
that case, Mr. Murphy pleaded guilty to a reduced charge of false
imprisonment in connection with a prosecution for criminal sexual
conduct.52 He was released on probation, which required that he
participate in a sex offender treatment program and report to a
Simmons, 299 F.3d 1220, 1226–27 (10th Cir. 2002) (holding that a
requirement that an inmate complete a sex offender treatment
program that requires incriminatory information or face denial of
good-time credits and other privileges did not qualify as
compulsion); Ainsworth v. Staley, 317 F.3d 1, 4–6 (1st Cir. 2002)
(holding that requiring convicted sex offenders to disclose histories
of sexual misconduct as part of an in-prison program in order to
qualify for parole did not constitute compulsion).
48 McKune, 536 U.S. at 40 (Kennedy, J., concurring).
49 2003 UT 24, ¶¶ 27, 36.
50 See McKune, 536 U.S. at 30–31, (Kennedy, J., concurring)
(agreeing that the transfer from a medium-security unit to a
maximum-security unit is not compulsion, but leaving unresolved
whether an extension of the inmate‘s term of incarceration or a
denial of the ability to earn good-time credits or qualify for parole
would amount to compulsion).
51 465 U.S. 420 (1984).
52 Id. at 422.
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Opinion of the Court
probation officer.53 His failure to comply with any of these
conditions could result in a probation revocation hearing.54 During
treatment, Mr. Murphy admitted to committing a rape and murder.55
His counselor informed the probation officer of the admissions, who
set up a meeting with Mr. Murphy.56 During the meeting, the officer
told Mr. Murphy about the information she had obtained, and Mr.
Murphy admitted that the information was true.57 The officer later
obtained an arrest warrant, and Mr. Murphy was eventually charged
with first-degree murder.58
¶ 36 Ordinarily, a witness ―must assert the privilege rather than
answer if he desires not to incriminate himself.‖59 Despite having
never invoked the Fifth Amendment during treatment or his
meeting with the probation officer, Mr. Murphy ―sought to suppress
testimony concerning his confession on the ground that it was
obtained in violation of the Fifth and Fourteenth Amendments.‖60
He argued that ―[b]ecause revocation of his probation was
threatened if he was untruthful with his probation officer, . . . he was
compelled to make incriminating disclosures instead of claiming the
privilege.‖61 The Supreme Court agreed that the failure to invoke the
Fifth Amendment could be excused so long as the state has ―sought
to induce [the witness] to forgo the Fifth Amendment privilege by
threatening to impose economic or other sanctions ‗capable of
forcing the self-incrimination which the Amendment forbids.‘‖62
¶ 37 The Court then discussed whether the threat of revocation
of probation rises to the level of compulsion. It ultimately concluded
―that if the state, either expressly or by implication, asserts that
invocation of the privilege would lead to revocation of probation, it
_____________________________________________________________
53 Id.
54 Id.
55 Id. at 423.
56 Id.
57 Id. at 423–24.
58 Id. at 424–25.
59 Id. at 429.
60 Id. at 425.
61 Id. at 434.
62 Id. (citation omitted).
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Opinion of the Court
would have created the classic penalty situation, the failure to assert
the privilege would be excused, and the probationer‘s answers
would be deemed compelled.‖63 Thus, the Court recognized that
requiring a probationer to surrender his Fifth Amendment right
against self-incrimination in order to retain his probation constitutes
compulsion. Despite this conclusion, the Court ultimately held that
Mr. Murphy had not actually been threatened with revocation of his
parole during his meeting with his probation officer, and thus his
confession was admissible.64
¶ 38 Murphy provides clear direction that guides our analysis: the
threat of revocation of the conditional liberty interest attendant to
probation constitutes compulsion. Both the Ninth and Tenth Circuits
have considered Murphy‘s direction to be controlling in factual
scenarios virtually identical to the one before us, holding that the
threat of revocation of probation or supervised release for refusal to
make self-incriminating disclosures in a sex offender treatment
program constitutes compulsion.65 The State urges us, however, to
_____________________________________________________________
63 Id. at 435.
64 Id. at 438–39 (―[Mr.] Murphy was not expressly informed
during the crucial meeting with his probation officer that an
assertion of the privilege would result in the imposition of a penalty.
And the fact that [Mr.] Murphy apparently felt no compunction
about adamantly denying the false imprisonment charge on which
he had been convicted before admitting to the rape and murder
strongly suggests that the ‗threat‘ of revocation did not overwhelm
his resistance.‖).
65 See Von Behren, 822 F.3d at 1150 (holding that a threat of
revocation of supervised release based on a Fifth Amendment
challenge to a sex offender treatment program like the one at issue
here constituted unconstitutional compulsion under Murphy);
Antelope, 395 F.3d at 1138 n.4 (holding that the case before it,
involving a probationer who was required to disclose incriminating
information in a treatment program as part of his probation, was the
―classic penalty situation‖ discussed in Murphy). Although we are
not bound to follow precedent from the circuit courts of appeal on
questions of federal constitutional law, the reasoning in these cases is
persuasive and confirms the correctness of our interpretation of the
United States Supreme Court‘s Fifth Amendment jurisprudence.
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Opinion of the Court
not follow this precedent, pointing to a case by the Indiana Supreme
Court, Bleeke v. Lemmon,66 that reached a different conclusion.
¶ 39 In Bleeke, the Indiana Supreme Court considered whether a
threat of revocation of parole could be considered compulsion under
the Fifth Amendment.67 Although the court recognized that under
both Murphy and its own precedent, the revocation of probation
constitutes compulsion,68 it distinguished these cases based on its
conclusion that probation is distinguishable from parole. In the
court‘s view, probation ―is a matter of judicial grace and discretion
as a deliberate sentencing alternative to be imposed in lieu of
incarceration‖ while parole ―is a substitution during the continuance
of the parole, of a lower grade of punishment, by confinement in the
legal custody and under the control of the warden.‖69 Thus, the court
reasoned that parole is simply a privilege akin to a transfer to a
minimum security prison that does not alter the length of the term of
incarceration, meaning that revocation of parole has no significant
effect on the parolee, and that probation, on the other hand, is a
substitution for incarceration, and thus the revocation of probation
has the legal effect of altering a defendant‘s sentence and extending
the amount of time an individual is incarcerated.70 The court
therefore concluded that the differences between parole and
probation were significant enough to justify distinguishing Murphy
and holding that the revocation of parole does not constitute
compulsion.71
¶ 40 The State urges us to make this same distinction and hold
that Murphy‘s reasoning does not extend beyond probation. But the
distinction between probation and parole is one without a significant
legal difference. The United States Supreme Court has noted that it
cannot perceive ―any difference relevant to the guarantee of due
process between the revocation of parole and the revocation of
_____________________________________________________________
66 6 N.E.3d 907 (Ind. 2014).
67 Id. at 935–40.
68See id. at 935–37 (discussing Murphy and Gilfillen v. State, 582
N.E.2d 821 (Ind. 1991)).
69 Id. at 937–38 (citation omitted).
70 See id. at 937–39.
71 Id. at 939–40.
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Opinion of the Court
probation.‖72 And Utah courts have likewise treated probation and
parole proceedings similarly.73 Both are a form of supervised release
that confers upon the individual a virtually identical conditional
liberty interest. Both are provided as an alternative to incarceration,
though the timing and procedures for each differ, and the revocation
of either probation or parole has the practical effect of increasing the
amount of time a defendant must be incarcerated. We do not find the
distinction relied upon by the Indiana Supreme Court persuasive.
Accordingly, though we agree with the Indiana Supreme Court‘s
interpretation of Murphy that the revocation of probation constitutes
compulsion, we do not find persuasive its distinction between
probation and parole. Thus, we disagree with its conclusion that
Murphy‘s reasoning should not be applied to revocation of parole.
¶ 41 Accordingly, we hold that a threat to revoke a defendant‘s
parole constitutes compulsion for purposes of the Fifth Amendment.
And as Mr. Bennett has established an issue of fact as to whether he
was actually threatened with revocation if he did not surrender his
Fifth Amendment claim and provide incriminating information, the
trial court erred in granting summary judgment. We therefore
reverse the trial court‘s grant of summary judgment and remand for
further proceedings.
¶ 42 Our opinion today should not be viewed as a rejection of the
valid and important rehabilitative purposes of sex offender
treatment programs such as the BCCC. It is well established that ―sex
offenders [often] repeat their past offenses, and informed counseling
can only help protect them, their potential victims, and society. The
irreconcilable constitutional problem, however, is that even though
the disclosures sought here may serve a valid rehabilitative purpose,
they also may be starkly incriminating. . . .‖74 Although the State
argues that our decision today will undermine the purposes and
effectiveness of sex offender treatment programs, a compelling state
_____________________________________________________________
72 Gagnon v. Scarpelli, 411 U.S. 778, 782, 782 n.3 (1973) (―Despite
the undoubted minor differences between probation and parole, the
commentators have agreed that revocation of probation where
sentence has been imposed previously is constitutionally
indistinguishable from the revocation of parole.‖).
73See, e.g., Baine v. Beckstead, 347 P.2d 554, 557 (Utah 1959); State v.
Jarman, 1999 UT App 269, ¶¶ 6–7, 987 P.2d 1284; State v. Byington,
936 P.2d 1112, 1115–16, 1116 n.2 (Utah Ct. App. 1997).
74 Antelope, 395 F.3d at 1137–38.
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Opinion of the Court
interest does not outweigh an individual‘s Fifth Amendment
rights.75 The Supreme Court, recognizing this problem, suggested
the solution in Murphy: ―[A] state may validly insist on answers to
even incriminating question and hence sensibly administer its
probation system, as long as it recognizes that the required answers
may not be used in a criminal proceeding and thus eliminates the
threat of incrimination.‖76 Given the circumstances of Mr. Bennett‘s
case—that he has received a life sentence for prior sex crimes—it
would seem that the State‘s need to retain the ability to further
prosecute Mr. Bennett is significantly less than its need to ensure that
it is both wise and safe to release him on parole. But without
immunity, the State cannot require Mr. Bennett to choose between
incriminating himself and losing his parole.
Conclusion
¶ 43 The trial court erred in refusing to consider Mr. Bennett‘s
second request for counsel. It also erred in granting summary
judgment because issues of fact remain as to whether Mr. Bennett‘s
Fifth Amendment rights were violated by the requirement that he
comply with the BCCC program. There are genuine disputes of
material facts as to whether the questions posed to Mr. Bennett bore
a risk of incrimination and whether the circumstances in which those
questions were posed constituted compulsion. Accordingly, we
reverse the decision of the trial court and remand for further
proceedings.
_____________________________________________________________
75 See id. at 1134–35 (―[C]ountervailing government interests, such
as criminal rehabilitation, do not trump [the Fifth Amendment]
right. Thus, when ‗questions put to [a] probationer, however
relevant to his probationary status, call for answers that would
incriminate him in a pending or later criminal prosecution,‘ he may
properly invoke his right to remain silent.‖ (citation omitted)).
76 Murphy, 465 U.S. at 435 n.7.
25