State of Iowa v. Iowa District Court for Webster County v. Iowa District Court for Webster County

IN THE SUPREME COURT OF IOWA
No. 09–0982

Filed July 8, 2011

STATE OF IOWA,

Plaintiff,

vs.

IOWA DISTRICT COURT FOR WEBSTER COUNTY,

Defendant,
------------------------------------------------------------------

ROBERT HARKINS,

Plaintiff,
vs.

IOWA DISTRICT COURT FOR WEBSTER COUNTY,

Defendant.

Certiorari to the Iowa District Court for Webster County, Kurt L.

Wilke, Judge.

Robert Harkins and the State of Iowa separately challenge a
district court order reinstating, in part, a convicted sex offender’s earned-

time credits after finding a violation of the Fifth Amendment right against

self-incrimination. STATE’S WRIT SUSTAINED; HARKINS’S WRIT

ANNULLED; CASE REMANDED.

Thomas J. Miller, Attorney General, and Jennifer M. York,

Assistant Attorney General, for the State of Iowa.

Robert Harkins, Mount Pleasant, pro se.
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MANSFIELD, Justice.

The Fifth Amendment to the United States Constitution provides,

“No person . . . shall be compelled in any criminal case to be a witness

against himself.” According to section 903A.2(1)(a) (2007) of the Iowa

Code, an incarcerated sex offender is not eligible for an earned-time

reduction of sentence unless that person completes a sex offender

treatment program. The question presented here is whether section

903A.2(1)(a) violates the Fifth Amendment rights of a convicted sex

offender, when successful completion of the treatment program would

require him to acknowledge responsibility for his offense.

We conclude there is no Fifth Amendment violation. For the

reasons discussed herein, we believe the State of Iowa may use earned-

time credits as an incentive for convicted sex offenders to obtain sex

offender treatment, even when the treatment requires an

acknowledgment of responsibility.

I. Background Facts and Proceedings.

On March 21, 2006, Robert Harkins was convicted of third-degree

sexual abuse following a jury trial. The court of appeals, in upholding

Harkins’s conviction on direct appeal, summarized the relevant facts as

follows:
On August 27, 2005, Robert Harkins went out
drinking with some friends. The group ended up at the
home of [the victim]. After a short period of time most of the
group left, except for Derrick, Trisha, Harkins, and [the
victim]. Derrick, who was [the victim’s] former boyfriend,
passed out on the couch. Trisha went to sleep in one of the
bedrooms. Harkins laid down in [the victim’s] bedroom in all
of his clothes. [The victim] stated she believed Harkins was
sleeping or passed out, so she laid down to sleep on the
other side of the bed.
[The victim] testified Harkins rolled over on top of her,
and she told him to get off. Harkins pinned [the victim]
down and pulled her clothing off. [The victim] testified she
repeatedly told Harkins no, stating, “I told him no. I told
 3
him to stop.” Harkins proceeded to engage in sexual
intercourse with her. When Harkins stopped she kneed him
and pushed him off, then screamed at him that she had said
no. Trisha heard [the victim] say, “No, I said no.” Trisha
went to investigate, and met [the victim] coming out of her
bedroom, clad only in a blanket and crying hysterically.
Trisha stated she saw blood on [the victim’s] bed. Harkins
then left the home.
Trisha and [the victim] called the police, and deputy
sheriff Kevin Knoche responded to the call. Deputy Knoche
also saw blood on [the victim’s] bed. Deputy Knoche found
Harkins sleeping at the home of a friend. Harkins was not
wearing his underwear, but it was stuck in the fly of his
pants. Harkins denied having sex with [the victim] and
stated he could not recall anything like that occurring.
[The victim] was taken to a hospital for a physical
examination. [The victim] had three tears, which were
bleeding, in the area of the perineum. Nancy Downing, a
registered nurse, testified she did not usually find tears that
were that large or bleeding at the time of the exam. Downing
testified [the victim’s] injuries were consistent with forced
sexual intercourse.
Harkins was charged with third-degree sexual abuse,
in violation of Iowa Code section 709.4 (2005). At the trial
Harkins testified he remembered everything about the
evening in question. He stated he and [the victim] had
engaged in consensual sex. He stated that in the middle of
having sex, he found out [the victim] had recently had sex
with Derrick, and he made a derogatory comment to her. He
stated [the victim] got mad and threw him out.
A jury found Harkins guilty of third-degree sexual
abuse. Harkins was sentenced to a term of imprisonment
not to exceed ten years.

State v. Harkins, No. 06–0660, 2007 WL 914032 (Iowa Ct. App. Mar. 28,

2007).

After the court of appeals affirmed Harkins’s conviction, the district

court imposed a special life sentence on Harkins pursuant to Iowa Code

section 903B.1 (Supp. 2005), in addition to the original ten-year term of

imprisonment. Harkins appealed the special sentence, asserting it was

unconstitutional and that his counsel was ineffective for failing to object

to it. On July 22, 2009, the court of appeals rejected these arguments
 4

and again affirmed the district court. State v. Harkins, 786 N.W.2d 498,

502 (Iowa Ct. App. 2009).

Having been unsuccessful on his direct appeals, Harkins filed an

application for postconviction relief. There he alleged four different bases

for ineffective assistance, including an allegation that his counsel should

have advised him not to testify at trial. The application was denied by

the district court, and that denial was affirmed by the court of appeals on

January 22, 2010. Harkins v. State, No. 08–2048, 2010 WL 200408

(Iowa Ct. App. Jan. 22, 2010).

Meanwhile, Harkins was incarcerated in the Mount Pleasant

Correctional Facility. During 2007 and the first part of 2008, Harkins

remained on the waiting list for the institution’s sex offender treatment

program (SOTP). On or about July 2, 2008, an opening in the SOTP

became available. Harkins alleges, and the State does not dispute, that

before he could participate in the program, Harkins had to sign a

“Treatment Contract,” in which he “agree[d] to be completely honest and

assume full responsibility for [his] offenses and [his] behavior.” Harkins

refused to sign the contract and to participate in the SOTP. In response,

on July 9, 2008, the Iowa Department of Corrections (IDOC) suspended

Harkins’s earned time pursuant to Iowa Code section 903A.2(1)(a) (2007).

Section 903A.2(1)(a) states an inmate under the control of IDOC

serving a category “A” sentence 1 is eligible for earned-time credit “equal

to one and two-tenths days for each day the inmate demonstrates good

conduct and satisfactorily participates in any program . . . identified by

the director [of the department of corrections].” In addition to this

general statement, the statute also provides that “an inmate required to

1Harkins is serving a category “A” sentence because he is not subject to a
mandatory minimum under Iowa Code section 902.12. See Iowa Code § 903A.2(1)(a).
 5

participate in a sex offender treatment program shall not be eligible for a

reduction of sentence unless the inmate participates in and completes a

sex offender treatment program established by the director.” Iowa Code

§ 903A.2(1)(a).

Following the suspension of his earned time, Harkins filed the

application for postconviction relief at issue in this appeal. Harkins

argued, essentially, that the suspension of his earned-time credits for

failure to participate in the SOTP violated his Fifth Amendment privilege

against self-incrimination. In particular, Harkins alleged:
I have maintained innocen[c]e since day one. I had my
appeal and am now going through postconviction relief with
my case. I cannot enter treatment because this would be an
admission of guilt and would perjur[e] myself in changing my
story. Also it would hinder any chance at a new trial if I
would sign a confession.

The district court granted Harkins’s application in part and denied

it in part. The district court determined that by conditioning Harkins’s

earned time upon his participation in the SOTP, in which Harkins would

be required to acknowledge his criminal conduct, the State was

unconstitutionally compelling Harkins to give testimony. However, the

district court found the testimony would be potentially incriminating only

until March 21, 2009, i.e., the last day on which the State could

prosecute Harkins for perjury based upon his 2006 trial testimony. See

Iowa Code § 802.3 (three-year statute of limitations). Accordingly, the

district court ordered Harkins’s earned time to be reinstated from July 9,

2008 through March 21, 2009, but suspended as of March 22, 2009,

until he participated in and completed the SOTP.

Both Harkins and the State filed petitions for a writ of certiorari.

Harkins argued the district court should not have suspended his accrual

of earned time as of March 22, 2009. The State, in turn, argued the
 6

district court should have upheld its original decision to suspend

Harkins’s earned time as of July 9, 2008, the date when he refused to

enter the treatment program. We granted the two petitions and

consolidated the proceedings.

II. Standard of Review.

We normally review certiorari actions for correction of errors at

law. Iowa R. Civ. P. 6.907; Johnson v. Iowa Dist. Ct., 756 N.W.2d 845,

847 (Iowa 2008). However, we have recognized a general exception to

this standard of review when a certiorari action is brought alleging a

violation of a constitutional right. State v. Cullison, 227 N.W.2d 121, 126

(Iowa 1975). In these circumstances, we make an independent

evaluation of the totality of the circumstances under which the

challenged ruling on the constitutional right was made. Id. That is,

when a constitutional issue is presented, the evidence relevant to that

issue is reviewed de novo. Lewis v. Iowa Dist. Ct., 555 N.W.2d 216, 218

(Iowa 1996).

III. Discussion and Analysis.

A. General Framework of Fifth Amendment Analysis. The Fifth

Amendment, whose text we have quoted above, applies to the State of

Iowa through the Due Process Clause of the Fourteenth Amendment to

the United States Constitution. 2 State v. Walls, 761 N.W.2d 683, 685

2Although the Iowa Constitution does not contain an equivalent provision
against self-incrimination, we have held such a right to be implicit in the “due process
of law” guaranteed by Article I, section 9. State v. Height, 117 Iowa 650, 659, 91 N.W.
935, 938 (1902). In this case, though, neither Harkins, the State, nor the district court
mentioned the Iowa Constitution. See State v. Griffin, 691 N.W.2d 734, 736 (Iowa 2005)
(finding a state constitutional claim was not preserved when the Federal Constitution
was the sole ground raised in the district court); State v. Wilkins, 687 N.W.2d 263, 265
(Iowa 2004) (same).
Harkins’s original application for postconviction relief did not cite legal authority
but simply alleged self-incrimination. An unreported hearing was held, at which
Harkins apparently cited to Johnson v. Fabian, 735 N.W.2d 295 (Minn. 2007), a
 7

(Iowa 2009) (citing Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 1492,

12 L. Ed. 2d 653, 658 (1964)). The Fifth Amendment’s guarantees

extend to Harkins despite his conviction and imprisonment. Minnesota

v. Murphy, 465 U.S. 420, 426, 104 S. Ct. 1136, 1141, 79 L. Ed. 2d 409,

418 (1984).

In order for a party to show a violation of the privilege against self-

incrimination, that party must show that he or she is being compelled to

give testimony that presents an impermissible risk of incriminating him or

her. See Hiibel v. Sixth Judicial Dist., 542 U.S. 177, 189, 124 S. Ct.

2451, 2460, 159 L. Ed. 2d 292, 305 (2004) (“To qualify for the Fifth

Amendment privilege, a communication must be testimonial,

incriminating, and compelled.”).

As a general rule, compulsion is present when the state threatens

to inflict “potent sanctions” unless the constitutional privilege is waived

or threatens to impose “substantial penalties” because a person elects to

exercise that privilege. Lefkowitz v. Cunningham, 431 U.S. 801, 805, 97

S. Ct. 2132, 2135–36, 53 L. Ed. 2d 1, 7 (1977).

Thus, in a series of decisions, the U.S. Supreme Court has held

that states may not penalize an individual by taking away his or her

________________________________
decision based on the Fifth Amendment. The district court then issued a ruling that
addressed only the Fifth Amendment right against self-incrimination. Neither party
sought to enlarge that ruling by raising the Iowa Constitution. See Iowa R. Civ. P.
1.904(2); State v. Mitchell, 757 N.W.2d 431, 435 (Iowa 2008) (holding that when a
defendant argues a constitutional violation, but the district court fails to address it, it is
incumbent upon the defendant to “file a motion to enlarge the trial court’s findings or in
any other manner have the district court address th[e] issue”).
In its brief to us, the State maintains that “[n]o state claims have been raised,
and the only issue raised is one of federal Fifth Amendment law.” Harkins has not
disputed this point; to the contrary, in his pro se appellate brief he cited to the Fifth
Amendment four separate times. For all these reasons, we confine our analysis to the
U.S. Constitution. See State v. Palmer, 791 N.W.2d 840, 844 (Iowa 2010) (limiting a
self-incrimination analysis to the Federal Constitution when no challenges under the
Iowa Constitution were raised in the district court or on appeal).
 8

government employment, professional license, or certain other rights and

privileges in direct response to the individual’s assertion of Fifth

Amendment rights. See id. at 807, 97 S. Ct. at 2136, 53 L. Ed. 2d at 8

(loss of the right to participate in political associations and hold public

office); Lefkowitz v. Turley, 414 U.S. 70, 82, 94 S. Ct. 316, 324–25, 38 L.

Ed. 2d 274, 284 (1973) (ineligibility to receive government contracts);

Uniformed Sanitation Men Ass’n, Inc. v. Comm’r of Sanitation, 392 U.S.

280, 284, 88 S. Ct. 1917, 1920, 20 L. Ed. 2d 1089, 1092 (1968) (loss of

employment); Spevack v. Klein, 385 U.S. 511, 516, 87 S. Ct. 625, 628, 17

L. Ed. 2d 574, 578 (1967) (revocation of a professional license). In each

instance, the government’s threatened penalty jeopardized the

individual’s current livelihood or professional status, and the penalty was

specifically tied to the exercise of Fifth Amendment rights.

This case is somewhat different. Harkins is not a free man, but is

presently serving a ten-year term of imprisonment. The question

concerns his eligibility for earned-time credits that might reduce that

sentence. Also, the suspension of credits is not a direct result of

Harkins’s invocation of his privilege against self-incrimination, but rather

his refusal to participate in a SOTP where the SOTP requires assumption

of responsibility. No one disputes that the SOTP was established for

bona fide rehabilitative purposes, or that requiring the offender to

acknowledge responsibility for his offense serves one of those purposes.

Another U.S. Supreme Court decision provides guidance here.

B. McKune v. Lile. In McKune v. Lile, 536 U.S. 24, 122 S. Ct.

2017, 153 L. Ed. 2d 47 (2002), the U.S. Supreme Court addressed Fifth

Amendment rights in the context of a prison rehabilitation program for

convicted sex offenders. In that case, the Court found the Kansas

Department of Corrections (KDOC) did not violate the constitutional
 9

rights of Lile, a convicted sex offender, when it threatened to curtail Lile’s

prison privileges unless he participated in rehabilitative treatment that

required him to disclose his past sex offenses. The privileges at stake

included visitation rights, earnings, work opportunities, ability to send

money to family, canteen expenditures, and access to a personal

television. McKune, 536 U.S. at 30–31, 122 S. Ct. at 2023, 153 L. Ed. 2d

at 55 (plurality opinion). In addition, because Lile refused to undergo the

treatment, he was going to be transferred to a maximum-security unit

where his movement would be more limited, he would have four as

opposed to two cellmates, and he would be in a potentially more

dangerous environment. Id. The Court held that depriving Lile of these

various privileges because of his refusal to participate in the treatment

would not violate Lile’s Fifth Amendment right against self-incrimination.

Id. at 47–48, 122 S. Ct. at 2032, 153 L. Ed. 2d at 66; id. at 54, 122 S. Ct.

at 2035, 153 L. Ed. 2d at 70 (O’Connor, J., concurring). The Court also

recognized the possibility that Kansas could grant use immunity for

statements made in the course of treatment as a way of avoiding

potential Fifth Amendment problems, but found this was not

constitutionally required. Id. at 34–35, 122 S. Ct. at 2025, 153 L. Ed. 2d

at 57–58 (plurality opinion).

McKune did not produce a majority opinion. Justice Kennedy

wrote for four of the justices in the majority, Justice Stevens spoke for

four dissenting justices, and Justice O’Connor, writing separately from

the other eight justices, concurred in the judgment upholding the actions

of the KDOC.

Justice Kennedy’s plurality opinion initially noted the benefits of

sex offender treatment. There is a high rate of recidivism among

untreated sex offenders and a broad range of agreement among
 10

therapists and correctional officers that clinical rehabilitation programs

“can enable sex offenders to manage their impulses and in this way

reduce recidivism.” Id. at 32–33, 122 S. Ct. at 2024, 153 L. Ed. 2d at

56–57. He further pointed out:
An important component of those rehabilitation programs
requires participants to confront their past and accept
responsibility for their misconduct. . . . Research indicates
that offenders who deny all allegations of sexual abuse are
three times more likely to fail in treatment than those who
admit even partial complicity.

Id. at 33, 122 S. Ct. at 2024, 153 L. Ed. 2d at 57 (citations omitted).

Thus, Justice Kennedy described the offender’s “acceptance of

responsibility for past offenses” as “[t]he critical first step.” Id. at 33, 122

S. Ct. at 2025, 153 L. Ed. 2d at 57.

Justice Kennedy also observed that, while the Fifth Amendment

applies to everyone, “the fact of a valid conviction and the ensuing

restrictions on liberty are essential to the Fifth Amendment analysis.” Id.

at 36, 122 S. Ct. at 2026, 153 L. Ed. 2d at 59. He added,

“[R]ehabilitation is a legitimate penological interest that must be weighed

against the exercise of an inmate’s liberty.” Id.

After setting out these basic parameters, Justice Kennedy

concluded that the Kansas program, as administered by Kansas prison

officials, did not amount to “unconstitutional compulsion.” As he

explained:
A prison clinical rehabilitation program, which is
acknowledged to bear a rational relation to a legitimate
penological objective, does not violate the privilege against
self-incrimination if the adverse consequences an inmate
faces for not participating are related to the program
objectives and do not constitute atypical and significant
hardships in relation to the ordinary incidents of prison life.

Id. at 37–38, 122 S. Ct. at 2027, 153 L. Ed. 2d at 60. Justice Kennedy

also noted that Lile’s decision not to participate did not “affect his
 11

eligibility for good-time credits or parole.” Id. at 38, 122 S. Ct. at 2027,

153 L. Ed. 2d at 60. In this part of his opinion, Justice Kennedy

borrowed from earlier language in Sandin v. Conner, 515 U.S. 472, 484,

115 S. Ct. 2293, 2300, 132 L. Ed. 2d 418, 430 (1995), which held that

challenged prison conditions cannot give rise to a due process violation

unless they impose “atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.”

Yet Justice Kennedy also declined to treat the compulsion inquiry

as simply a comparison between the individual’s conditions after he or

she invoked Fifth Amendment rights and a preexisting “baseline.”

McKune, 536 U.S. at 45–47, 122 S. Ct. at 2031–32, 153 L. Ed. 2d at 65.

Such an approach was unsatisfactory, because compulsion involved “a

question of judgment.” Id. at 41, 122 S. Ct. at 2028, 153 L. Ed. 2d at 62.

Often, the criminal process presents defendants with “choices” that do

not give rise to a Fifth Amendment claim. Id. at 41, 122 S. Ct. at 2029,

153 L. Ed. 2d at 62.

Justice Kennedy pointed to several instances within the criminal

justice system where the government has been allowed to impose quite

serious consequences on defendants who stand on their Fifth

Amendment rights. Id. at 42–43, 122 S. Ct. at 2029–30, 153 L. Ed. 2d at

63 (citing Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 118 S. Ct.

1244, 140 L. Ed. 2d 387 (1998) (allowing death row inmate’s silence at a

clemency hearing to be used against him); Minnesota v. Murphy, 465 U.S.

420, 104 S. Ct. 1136, 79 L. Ed. 2d 409 (1984) (no constitutional violation

in requiring defendant to be truthful with the probation officer in all

matters as a condition of probation); Baxter v. Palmigiano, 425 U.S. 308,

96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976) (permitting punitive segregation

and downgrade of prison classification status based on silence at a
 12

prison disciplinary hearing)). As Justice Kennedy put it, “The parties in

Woodard, Murphy, and Baxter all were faced with ramifications far worse

than respondent faces here, and in each of those cases the Court

determined that their hard choice between silence and the consequences

was not compelled.” Id. at 44–45, 122 S. Ct. at 2030, 153 L. Ed. 2d at

64. Also, in the federal criminal system, defendants typically receive a

downward adjustment in their sentence for pleading guilty, and

conversely suffer a longer sentence if they do not plead guilty, but this

feature is “accepted” and not regarded as a violation of the defendant’s

Fifth Amendment rights. Id. at 47, 122 S. Ct. at 2032, 153 L. Ed. 2d at

65–66.

In the concluding paragraphs of his opinion, Justice Kennedy

returned to his initial themes and summarized as follows:
Acceptance of responsibility is the beginning of
rehabilitation. And a recognition that there are rewards for
those who attempt to reform is a vital and necessary step
toward completion. The Court of Appeals’ ruling would
defeat these objectives. . . .
The Kansas SATP [Sexual Abuse Treatment Program]
represents a sensible approach to reducing the serious
danger that repeat sex offenders pose to many innocent
persons, most often children. The State’s interest in
rehabilitation is undeniable. There is, furthermore, no
indication that the SATP is merely an elaborate ruse to skirt
the protections of the privilege against compelled self-
incrimination. Rather, the program allows prison
administrators to provide to those who need treatment the
incentive to seek it.

Id. at 47–48, 122 S. Ct. at 2032, 153 L. Ed. 2d at 66.

In short, for the plurality represented by Justice Kennedy’s

opinion, the loss of various prison privileges clearly did not amount to

compulsion because such deprivations were not “atypical and significant

hardships in relation to the ordinary incidents of prison life.” Id. at 38;

122 S. Ct. at 2027, 153 L. Ed. 2d at 60. But the plurality also indicated
 13

that degree of hardship was not the ultimate question, and they did not

define the outer limits of what prison officials could do to encourage

participation in a sex offender treatment program. Taken as a whole, the

plurality opinion approves the state’s use of incentives—even “hard

choice[s],” id. at 45, 122 S. Ct. at 2030, 153 L. Ed. 2d at 64—to obtain

participation in sex offender treatment programs requiring acceptance of

responsibility.

Justice Stevens, writing for four dissenting justices, strenuously

disagreed with the plurality’s view that Lile’s threatened loss of privileges

did not amount to unconstitutional compulsion. He acknowledged that

the SATP “clearly serves legitimate therapeutic purposes.” Id. at 68, 122

S. Ct. at 2043, 153 L. Ed. 2d at 79 (Stevens, J., dissenting). As he put it,

“Mental health professionals seem to agree that accepting responsibility

for past sexual misconduct is often essential to successful treatment,

and that treatment programs can reduce the risk of recidivism by sex

offenders.” Id. Yet he concluded that Kansas could not “punish an

inmate’s assertion of his Fifth Amendment privilege with the same

mandatory sanction that follows a disciplinary conviction for an offense

such as theft, sodomy, riot, arson, or assault.” Id. at 54, 122 S. Ct. at

2035–36, 153 L. Ed. 2d at 70.

Justice Stevens pointed out that Lile’s shift to a maximum-security

unit and his loss of visitation and the ability to earn up to minimum

wage in the present case amounted to “a serious loss of tangible

privileges.” Id. at 63–64, 122 S. Ct. at 2040–41, 153 L. Ed. 2d at 76. He

added, “[T]he sanctions are in fact severe, but even if that were not so,

the plurality’s policy judgment does not justify the evisceration of a

constitutional right.” Id. at 54, 122 S. Ct. at 2036, 153 L. Ed. 2d at 70–

71. Justice Stevens also disagreed with the proposition that the prior
 14

criminal justice cases like Woodard and Baxter were relevant because

they had upheld the imposition of sanctions on prisoners who asserted

Fifth Amendment rights. In his view, there was an important distinction

between the mandatory, official sanction present in Lile’s case and “a

mere risk of adverse consequences stemming from a voluntary choice” in

cases like Woodard, Murphy, and Baxter. Id. at 59–62, 122 S. Ct. at

2038–40, 153 L. Ed. 2d at 73–75. In Woodard, for example, the inmate’s

invocation of Fifth Amendment rights in the clemency proceeding could

be held against him, but adverse consequences were not “automatic.” Id.

at 59–60, 122 S. Ct. at 2038–39, 153 L. Ed. 2d at 74. Justice Stevens

also stated that Kansas could achieve its objectives without impinging on

the Fifth Amendment privilege by granting use immunity to participants.

Id. at 69–70, 122 S. Ct. at 2043–44, 153 L. Ed. 2d at 80.

Justice O’Connor took a third approach. In the first part of her

concurrence, she expressed the view that the penalties Lile faced were

not “sufficiently serious to compel his testimony.” Id. at 52, 122 S. Ct. at

2034, 153 L. Ed. 2d at 69 (O’Connor, J., concurring). This was a

sufficient basis for her to uphold the actions of the KDOC and concur in

the result. Nonetheless, she went on to criticize the plurality for

suggesting that more serious consequences such as “longer incarceration

and execution” could not constitute unconstitutional compulsion. Id.

Yet Justice O’Connor also criticized the dissent for its inability to

draw a reasoned distinction between the “criminal justice” cases such as

Woodard, Murphy, and Baxter—which upheld more severe sanctions than

those imposed on Lile (e.g., loss of life in Woodard)—and the “penalty”

cases such as Cunningham, Turley, Uniformed Sanitation Men, and

Spevack. Id. at 52, 122 S. Ct. at 2035, 153 L. Ed. 2d at 69. She agreed

with the plurality that the inmates in Woodard, Murphy, and Baxter, as a
 15

practical matter, faced more onerous penalties; the dissenters’ attempt to

distinguish those cases on the ground that the penalties there were not

“automatic” did not persuade her. Id.

In Justice O’Connor’s view, the critical issue for Fifth Amendment

purposes was not necessarily the actual penalty or sanction, but the

context within which it was imposed. She elaborated:
I believe the proper theory [of the Fifth Amendment
privilege against self-incrimination] should recognize that it
is generally acceptable to impose the risk of punishment,
however great, so long as the actual imposition of such
punishment is accomplished through a fair criminal process.
. . . Forcing defendants to accept such consequences seems
to me very different from imposing penalties for the refusal to
incriminate oneself that go beyond the criminal process and
appear, starkly, as government attempts to compel
testimony; in the latter context, any penalty that is capable
of compelling a person to be a witness against himself is
illegitimate.

Id. at 53, 122 S. Ct. at 2035, 153 L. Ed. 2d at 69–70.

Under the narrowest grounds doctrine, the holding of a fragmented

Supreme Court decision with no majority opinion “ ‘may be viewed as

that position taken by those Members who concurred in the judgments

on the narrowest grounds.’ ” Marks v. United States, 430 U.S. 188, 193,

97 S. Ct. 990, 993, 51 L. Ed. 2d 260, 266 (1977) (quoting Gregg v.

Georgia, 428 U.S. 153, 169 n.15, 96 S. Ct. 2909, 2923, n.15, 49 L. Ed.

2d 859, 872 n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)).

Justice O’Connor’s concurrence therefore controls here.

As we read Justice O’Connor’s concurrence, “compulsion” is not a

simple, straightforward continuum based on the severity of the sanction.

Rather, under a “proper theory,” the critical questions are whether the

sanction was “accomplished through a fair criminal process” and

whether the state was engaged in a “stark[]” attempt to compel

testimony. McKune, 536 U.S. at 53, 122 S. Ct. at 2035, 153 L. Ed. 2d at
 16

69 (O’Connor, J., concurring). Justice O’Connor thus appears to allow

for the possibility that individuals who have been convicted through a

“fair criminal process” can suffer significant adverse consequences,

including a potentially longer period of incarceration, for choosing not to

acknowledge their offense, provided the state was not engaged in a direct

effort to compel testimony. See also id. at 53, 122 S. Ct. at 2035, 153 L.

Ed. 2d at 70 (Justice O’Connor noting that the federal sentencing

guidelines offer the potential benefit of a lower sentence in exchange for

the defendant’s acceptance of responsibility).

In this regard, Justice O’Connor’s concurrence shares considerable

ground with Justice Kennedy’s plurality opinion. Both opinions, in the

end, do not regard compulsion as a simple “How serious is the

consequence?” inquiry. Rather, both of them recognize that a fair

criminal process may impose difficult choices on defendants to serve a

valid penological goal, without crossing the line into unconstitutional

compulsion.

C. Post-McKune Decisions of Federal Appellate Courts. In the

wake of McKune, a number of federal appellate courts have had to decide

whether it violates the Fifth Amendment when a sex offender receives

more prison time, rather than just stricter prison conditions, because he or

she refused to participate in a treatment program that required him or

her to admit past sex crimes. For the most part, based on their

understanding of the scope of McKune, they have rejected these Fifth

Amendment claims.

In Searcy v. Simmons, 299 F.3d 1220 (10th Cir. 2002), a case that

had been held by the appellate court pending McKune, the Tenth Circuit

concluded a Kansas sex offender’s loss of the ability to earn good-time

credits because he refused to accept responsibility for his crime and
 17

disclose other possible sex crimes did not violate the Fifth Amendment.

The court acknowledged that this specific situation was not expressly

covered by McKune. Searcy, 299 F.3d at 1225. Nonetheless, applying

Justice O’Connor’s concurrence as the dispositive opinion, the court

found that Searcy had been convicted in a “fair criminal process,” and

“[w]hile the potential for incrimination is not disputed, there is no

assertion that the KDOC is using the SATP as a surreptitious means to

obtain evidence for criminal prosecutions.” Id. at 1226–27. As the court

explained:
Mr. Searcy’s lost privileges and lost opportunity to earn
future good time credits are quite simply not the result of his
refusal to incriminate himself, but are a consequence of his
inability to complete rehabilitation the KDOC has
determined—in light of the serious offense for which Mr.
Searcy was convicted—is in the best interest for Mr. Searcy
and society.

Id. at 1227.

Ainsworth v. Stanley, 317 F.3d 1 (1st Cir. 2002), decided on

remand after McKune, reached a similar outcome. There the First Circuit

held New Hampshire could constitutionally deny parole in most

instances to sex offenders who refused to accept responsibility for their
crimes. That court commented that “Justice O’Connor does not purport

to lay out any abstract analysis or unifying theory that would prefigure

her views regarding the constitutionality of New Hampshire’s program,”

and therefore “we have no clear guideposts.” Ainsworth, 317 F.3d at 4.

Hence, the First Circuit deferred to its previously expressed view that

under recent decisions of the U.S. Supreme Court, the compulsion

analysis “is more circumscribed in the prison context” and only

“unreasonable” burdens are proscribed. Id. at 5. Reiterating its pre-

McKune approach, the First Circuit concluded that New Hampshire could
 18

subject sex offenders who refused to participate in treatment that

required acceptance of responsibility to the likelihood of a longer period

of incarceration, because the overall burden was not unreasonable in

light of the relevant circumstances, including “the voluntary nature of

the program” (i.e., participation is a choice) and the state’s “valid”

interest in effective rehabilitation. Id. at 5–6.

Although the First Circuit purported to be following its own earlier

precedents rather than Justice O’Connor’s concurrence, one can argue

that its analytical approach is not that different from hers. The “factors”

mentioned in its opinion, i.e., that the defendant was presented with a

choice within a fair criminal process and that the state’s purpose was not

testimonial, surface also in Justice O’Connor’s discussion of “proper

theory” of the Fifth Amendment. McKune, 536 U.S. at 53, 122 S. Ct. at

2035, 153 L. Ed. 2d at 69 (O’Connor, J., concurring).

A few years later, in Entzi v. Redmann, 485 F.3d 998 (8th Cir.

2007), the Eighth Circuit denied a sex offender’s claim that North Dakota

violated his Fifth Amendment rights by withholding sentence-reduction

credits when he refused to report to a sex offender education class where

he would have had to admit his offense. Relying expressly on Searcy and

Justice O’Connor’s concurrence in McKune, the court found that the loss

of an opportunity for a discretionary sentence-reduction credit “is not

among the consequences for noncompliance that go ‘beyond the criminal

process and appear, starkly, as government attempts to compel

testimony.’ ” Entzi, 485 F.3d at 1004 (quoting McKune, 536 U.S. at 53,

122 S. Ct. at 2035, 153 L. Ed. 2d at 69 (O’Connor, J., concurring)). This

court found, therefore, no unconstitutional compulsion. Id.

Likewise, in DeFoy v. McCullough, 301 F. App’x 177 (3rd Cir. 2008),

the Third Circuit upheld Pennsylvania’s denial of reparole to a sex
 19

offender based in part on the offender’s refusal to participate in a

treatment program. The treatment program would have required the

inmate to admit his guilt even though he had obtained a new trial on the

underlying charges. DeFoy, 301 F.App’x at 178. Applying Justice

O’Connor’s concurrence, the court reasoned that no unconstitutional

compulsion had occurred. DeFoy’s sentence was not extended; he

“merely had to serve the rest of his sentence, imposed through a fair

criminal process.” Id. Furthermore, “DeFoy was not denied reparole

because he invoked the Fifth Amendment, but rather, primarily because

he chose not to participate in treatment.” Id. at 182. Thus, the

considerations noted by Justice O’Connor in her concurrence—i.e., the

sanction merely forced the prisoner to serve out a sentence imposed in a

fair criminal process, the prisoner was given a choice, and the purpose of

the program was truly rehabilitative rather than to obtain testimony, see

McKune, 536 U.S. at 53, 122 S. Ct. at 2035, 153 L. Ed. 2d at 69

(O’Connor, J., concurring)—were dispositive in overruling the Fifth

Amendment claim. 3 DeFoy, 301 F.App’x at 182.

3At least one of these federal appellate decisions, i.e., Searcy, involved an

automatic loss of eligibility for sentence-reduction credits, similar to Iowa Code section
903A.2(1)(a). Under the program at issue in Searcy, failure to participate in the
treatment program meant that the inmate forfeited eligibility for sentence-reduction
credits, but (as in Iowa) participation did not guarantee a reduction in sentence.
Searcy, 299 F.3d at 1223 (noting that an inmate who refuses to participate in a sex
offender treatment program “loses the opportunity to earn any further good time
credits” and “those credits . . . cannot be regained”); see also Ainsworth, 317 F.3d at 3
(noting that “nonparticipation in the [sex offenders program] almost always results in
an inmate being denied parole”); DeFoy, 301 F. App’x at 179 (noting that “it was the
rare case that parole was granted without treatment”). As we point out above, Justice
O’Connor’s concurrence rejects the notion urged by Justice Stevens in dissent that it
makes a constitutional difference whether “the negative outcome” follows directly from
“the decision to remain silent,” McKune, 536 U.S. at 52, 122 S. Ct. at 2035, 153 L. Ed.
2d at 69 (O’Connor, J., concurring), or whether the decision simply makes that outcome
more likely.
 20

The Ninth Circuit reached a different result in United States v.

Antelope, 395 F.3d 1128 (9th Cir. 2005), but the facts there were

somewhat different. The defendant had pled guilty to possession of child

pornography and was required to participate in a treatment program as a

condition of obtaining supervised release. Antelope, 395 F.3d at 1131.

The defendant had no Fifth Amendment objection to admitting the crime

of which he had been convicted, but objected to having to disclose other

potential criminal conduct in the course of the program. Id. Although

the court found a violation of the defendant’s right against self-

incrimination, its overall interpretation of O’Connor’s concurrence does

not appear to vary from that of the other circuits. To the contrary, the

Ninth Circuit found that under her concurrence,
the compulsion inquiry does not dispositively turn on the
status of the person claiming the Fifth Amendment privilege
or on the severity of the penalty imposed, although these
factors may bear on the analysis. Instead, the controlling
issue is the state’s purpose in imposing the penalty:
Although it may be acceptable for the state to impose harsh
penalties on defendants when it has legitimate reasons for
doing so consistent with their conviction for their crimes of
incarceration, it is a different thing to impose “penalties for
the refusal to incriminate oneself that go beyond the criminal
process and appear, starkly, as government attempts to
compel testimony.”

Id. at 1137 (quoting McKune, 536 U.S. at 53, 122 S. Ct. at 2035, 153 L.

Ed. 2d at 69 (O’Connor, J., concurring)). A crucial point for the Ninth

Circuit was that the federal government was sanctioning “Antelope for

his self-protective silence about conduct that might constitute other

crimes.” Id. These kinds of disclosures, the Ninth Circuit felt, were

“starkly incriminating” regardless of their potential rehabilitative

purpose. Id. at 1138.

D. Post-McKune Decisions of State Appellate Courts. In

addition to these five federal appellate courts, several state appellate
 21

courts have addressed whether a Fifth Amendment violation occurs when

a convicted sex offender’s release date is adversely affected because the

offender refused to participate in a treatment program that required

admission of responsibility. The results have been more divided. Some

courts have found no Fifth Amendment violation. See, e.g., People v.

Lehmkuhl, 117 P.3d 98, 108 (Colo. Ct. App. 2004); Spencer v. State, 334

S.W.3d 559, 568 (Mo. Ct. App. 2010); Dzul v. State, 56 P.3d 875, 884–85

(Nev. 2002); Wilson v. Pa. Bd. of Prob. & Parole, 942 A.2d 270, 273 (Pa.

Commw. Ct. 2008); State v. Pritchett, 69 P.3d 1278, 1286–87 (Utah

2003). Others have. See, e.g., James v. State, 75 P.3d 1065, 1068

(Alaska Ct. App. 2003) (state conceded compulsion); Bender v. N.J. Dep’t

of Corr., 812 A.2d 1154, 1160–61 (N.J. Super. Ct. App. Div. 2003); State

ex rel. Tate v. Schwarz, 654 N.W.2d 438, 442–45 (Wis. 2002).

In Johnson v. Fabian, 735 N.W.2d 295 (Minn. 2007), cited by the

district court below, the Minnesota Supreme Court held that convicted

sex offenders could not have their sentences extended beyond their

presumptive terms based on their refusal to participate in sex offender

treatment programs that would have required them to admit their

crimes.

Johnson involved two consolidated appeals of defendants who had

been convicted of criminal sexual conduct. Each received an “executed

sentence,” which under Minnesota’s sentencing scheme typically equated

to a term of actual imprisonment of two-thirds that amount. 735 N.W.2d

at 299. The term of actual imprisonment was subject to extension if the

defendant committed a disciplinary offense while incarcerated. Id. When

the defendants refused to participate in Minnesota’s sex offender

treatment program, those refusals were considered disciplinary

violations, and their terms of actual imprisonment were extended by
 22

forty-five days. Id. at 298. The defendants challenged these extensions

as violating their Fifth Amendment rights.

In assessing the defendants’ Fifth Amendment claims, the Johnson

court agreed that McKune was the relevant precedent. But it declined to

follow the “comments about sanctions that extend the term of

incarceration” in both the plurality opinion and Justice O’Connor’s

opinion on the grounds they were dicta. Id. at 304. Instead, the Johnson

court ultimately concluded that under both opinions, “atypical and

significant hardship” was the relevant benchmark. Id. at 304–05. That

is, if the sanction amounted to such a hardship, it was “compulsion”; if

not, it was not. Id. As the Minnesota court put it:
[I]t is clear to us that a majority composed of the plurality
and Justice O’Connor (and likely the dissenting Justices as
well) agreed in McKune that consequences that impose
atypical and significant hardship in prison constitute
compulsion for purposes of the Fifth Amendment.

Id. at 306. The court then went on to hold that forty-five days of

additional incarceration met the “atypical and significant hardship” test

and therefore constituted unconstitutional compulsion. Id. at 306–09.

Two dissenting justices in Johnson disagreed with their colleagues’

reading of McKune. They maintained that neither the plurality nor

Justice O’Connor had endorsed “atypical and significant hardship” as the

standard for whether compulsion was present. Id. at 313. At most, the

presence of such a hardship was a necessary but not sufficient condition

for finding compulsion. Id. Discerning “no clear guideposts” in McKune,

the dissenters argued that Minnesota should continue to follow its pre-

McKune precedent that extending an inmate’s supervised release date

due to his failure to participate in a sex offender program was not

“compulsion” in violation of the Fifth Amendment. Id. at 312–14 (citing
 23

State ex rel. Morrow v. LaFleur, 590 N.W.2d 787, 789 (Minn. 1999)). The

dissent elaborated:
Numerous federal circuit courts have considered this
issue and held that extension of a supervised release date for
failure to participate in treatment is not compulsion. While
the majority cites cases that have held differently, I find that
the Supreme Court has not spoken clearly on this issue, nor
is there a national consensus that would compel us to
overturn Morrow. I would hold that extending an inmate’s
supervised release date because of his failure to participate
in a sex offender treatment program does not rise to the level
of compulsion necessary to violate the inmate’s Fifth
Amendment privilege against self-incrimination.

Id. at 315 (citations omitted).

We have some difficulty squaring the Johnson majority’s

interpretation of McKune with our own. While neither Justice Kennedy

nor Justice O’Connor in McKune precisely delineated the permissible

outer limits of “compulsion” in the prison context, neither indicated that

imposing an “atypical and significant hardship” would automatically

cross those limits. To the contrary, both opinions noted that in prior

cases, like Woodard, states had been allowed to impose far more serious

consequences, such as a potential loss of clemency, on inmates who

chose to exercise their Fifth Amendment rights. Thus, both opinions

found that the question of compulsion had to be analyzed in context,

with particular emphasis (according to Justice O’Connor) on whether the

consequence arose as a choice afforded by a fair criminal process and

whether the underlying purpose was rehabilitative rather than the

compulsion of testimony. In our view, the respective decisions of the

Tenth, Eighth, and Third Circuits in Searcy, Entzi, and DeFoy more

accurately reflect this approach.

E. Applying McKune to This Case. Based on our reading of

McKune, we find no Fifth Amendment violation here. The requirement
 24

that Harkins participate in the SOTP to be eligible for earned-time credits

was part of “a fair criminal process.” McKune, 536 U.S. at 53, 122 S. Ct.

at 2035, 153 L. Ed. 2d at 69 (O’Connor, J., concurring). Section

903A.2(1)(a), which established this requirement, was the law both when

Harkins was alleged to have sexually assaulted his victim, and when he

was convicted of doing so. Thus, from the moment Harkins committed

his crime, it was clear that if he was convicted and chose not to

participate in the prescribed treatment program, he would not be eligible

for earned-time credits. That was the set of consequences for his

conduct prescribed by the legislature.

Encouraging a convicted sex offender to participate in a SOTP

where he has to acknowledge his crime also serves important

rehabilitative goals. The State of Iowa is not “starkly . . . attempt[ing] to

compel testimony.” Id. Rather, the undisputed purpose of the program

is to get the offender to confront his or her past behavior so it does not

reoccur. Harkins does not claim that he will be forced to disclose other,

as-yet-unknown sex offenses. Cf. Antelope, 395 F.3d at 1137. In fact,

the only admission the State could obtain here is one it almost certainly

does not need, since Harkins has been convicted and his conviction has

been upheld on direct appeal.

The specifics of this case illustrate what the legislature might have

had in mind when it enacted section 903A.2(1)(a). The evidence,

summarized above, supports a finding that Harkins committed a rather

violent sexual assault. Harkins’s original story to the police was that he

had not had sexual relations with the victim. At trial, Harkins changed

course and admitted having had sex with the victim, but claimed it was

consensual. Now, according to a memo that is part of the record,

Harkins maintains, “I am not guilty and am not going to take the
 25

program.” Under these circumstances, a rehabilitation program

requiring the offender to confront his past offense might be particularly

beneficial. We do not see the Fifth Amendment as a barrier to an earned-

credit incentive for Harkins to participate in such a program.

Both the plurality and the special concurrence in McKune

indicated that compulsion in the prison setting is not a simple question

of, “How big is the stick or carrot?” Instead, Justice Kennedy and

Justice O’Connor recognized that a convicted criminal defendant may be

confronted with choices, such as whether to take the stand at a clemency

hearing or whether to participate in sex offender treatment, which might

be considered compulsion in other circumstances, but are deemed

legitimate exercises of state authority here. We therefore need to ask

whether the choice arose as a result of the defendant’s conviction within

the criminal justice system and whether imposing the choice serves a

proper goal of that system. We have and we believe the answers are

clear.

Thus, while a loss of eligibility for earned-time credits clearly

“implicates a liberty interest,” Reilly v. Iowa Dist. Ct., 783 N.W.2d 490,

496 (Iowa 2010), it does not equate in this case with unconstitutional

compulsion. The State is not using a threatened loss of credits to try to

extract testimony; instead, it is attempting to administer a bona fide

rehabilitation program for sex offenders who have already been found

guilty under a statutory scheme that afforded them all required due

process.
We also find support for this conclusion in In re C.H., 652 N.W.2d
144 (Iowa 2002), where we addressed a father’s claim that his Fifth
Amendment rights had been violated when his parental rights were
terminated after he failed to complete a sex offender treatment program.
 26

We made clear that “sexual offender treatment where the offender refuses
to take responsibility for the abuse may constitute ineffective therapy,”
and that the State of Iowa could terminate parental rights based on a
parent sex offender’s “failure to obtain treatment for his or her
problems.” In re C.H., 652 N.W.2d at 150. We specifically noted that “a
person’s exercise of a constitutional right may indeed have
consequences”—without resulting in a Fifth Amendment violation. Id.
Just as in C.H., where we held that a father who failed to complete a
treatment program due to his assertion of Fifth Amendment rights could
suffer loss of parental rights, so here we hold that a convicted sex
offender who failed to complete a treatment program due to his assertion
of Fifth Amendment rights may constitutionally have his eligibility for
earned-time credits suspended. If the loss of parental rights does not
amount to unconstitutional compulsion, it is difficult to see how the
suspension of earned-time credits would either—so long as in both cases
the State is not simply trying to obtain testimony for future use. 4
IV. Conclusion.
Harkins had every right not to be a witness against himself, a right
he actually chose to waive at trial by taking the stand. Now that he has
been convicted as a sex offender, though, the State of Iowa may
constitutionally establish an incentive for him to obtain treatment in
prison by withholding earned-time credits if he declines to participate.

4It is true we said in C.H., “The State may require parents to otherwise undergo

treatment, but it may not specifically require an admission of guilt as part of the
treatment.” 652 N.W.2d at 150. Thus, a distinction exists between the present case,
where the SOTP expressly requires acceptance of responsibility, and C.H., where the
State simply required treatment and admission of responsibility was part of the
treatment. Yet the more significant distinction cuts the other way. In this case,
Harkins has already been convicted of a sex offense in a criminal proceeding; in C.H.,
the father had not been. Hence, there were more grounds for concern in C.H. about
“stark[] government attempts to compel testimony.” McKune, 536 U.S. at 53, 122 S. Ct.
at 2035, 153 L. Ed. 2d at 69 (O’Connor, J., concurring).
 27

For the foregoing reasons, we sustain the writ requested by the
State, we set aside the district court’s order to the extent it reinstated
Harkins’s earned time for the period July 9, 2008, through March 21,
2009, and we remand for further proceedings consistent herewith.
STATE’S WRIT SUSTAINED; HARKINS’S WRIT ANNULLED;
CASE REMANDED.
All justices concur except Wiggins, Hecht, and Appel, JJ., who
dissent.
 28

#09–0982, State v. Iowa Dist. Ct./Harkins v. Iowa Dist. Ct.

APPEL, Justice (dissenting).

I respectfully dissent. I would hold that Harkins is entitled to use

and derivative-use immunity under the Federal Constitution with respect

to incriminating statements that he may be required to make pursuant

to his participation in the sex offender treatment program (SOTP) in this

case.

I. Factual and Procedural Background.

The facts are simple and undisputed. Harkins has been convicted

of a sex crime. The State of Iowa has determined that he should receive

treatment in prison for sex offenders. The SOTP requires Harkins to

accept full responsibility for his offenses and behavior. The program also

requires that Harkins agree to undergo a polygraph examination. If

Harkins declines to participate in the SOTP, he will not receive earned-

time credit. Simply put, if he chooses to remain silent by not

participating in the program, he will likely be incarcerated for a

substantially longer period of time.

Harkins cries foul. He filed without the assistance of counsel a

petition in district court challenging the process as violating his privilege

against self-incrimination. Harkins claims if he participates in the SOTP

and makes the required disclosures, he could be criminally prosecuted

for perjury because of his testimony in the underlying criminal trial.

Harkins further asserts that the admissions required in the SOTP could

be used against him in a subsequent trial on the underlying offense if he

is granted a new trial on postconviction relief. He claims that he is

entitled to use immunity. In the district court, he did not identify

whether he was proceeding under the Federal or State Constitution.
 29

The district court granted Harkins’s application in part and denied

it in part. Harkins filed a writ of certiorari. In his pro se briefing, he

declared that he was proceeding based on “the Fifth Amendment right

against self-incrimination . . . and [the] right to due process.”

II. Analysis Under Federal Constitution.

A. Background to Fifth Amendment. The Fifth Amendment

provides that “[n]o person . . . shall be compelled in any criminal case to

be a witness against himself.” U.S. Const. amend. V. A brief review of

the historical background of the Fifth Amendment provides the context of

my consideration of this case.

After the Norman Conquest, ecclesiastical courts were established

to settle disputes. Leonard W. Levy, Origins of the Fifth Amendment: The

Right Against Self-Incrimination 43 (Macmillan Publ’g Co., 2d ed. 1986)

[hereinafter Levy]. These courts were inquisitorial in nature. Id. at 45.

Persons were forced to appear and subject themselves to general

examination under oath without knowledge of the charges being

investigated. Id.; Stefan J. Padfield, Self-Incrimination and Acceptance of

Responsibility in Prison Sex Offender Treatment Programs, 49 U. Kan. L.

Rev. 487, 491 (2001). The most infamous of these courts was the “Star

Chamber.” See Mark A. Godsey, Rethinking the Involuntary Confession

Rule: Toward A Workable Test for Identifying Compelled Self-Incrimination,

93 Cal. L. Rev. 465, 481 (2005).

Star Chamber proceedings were classic fishing expeditions in

which interrogators could roam far and wide in an attempt to establish

misconduct of persons under examination. See Akhil Reed Amar &

Renee B. Lettow, Fifth Amendment Principles: The Self-Incrimination

Clause, 93 Mich. L. Rev. 857, 896 (1995); Kenworthey Bilz, Self-

Incrimination Doctrine Is Dead; Long Live Self-Incrimination Doctrine:
 30

Confessions, Scientific Evidence, and the Anxieties of the Liberal State, 30

Cardozo L. Rev. 807, 846 (2008). A person appearing before the Star

Chamber had no notice of charges and was forced, under oath, to answer

any and all questions. Levy at 50–51; 8 John Henry Wigmore, Evidence

in Trials at Common Law § 2250, at 278 & n.43 (McNaughton rev. ed.

1961). The Star Chamber presented the target with a classic Hobson’s

choice: answer questions and incriminate yourself or do not answer

questions and be punished for your silence.

Common law courts eventually supplanted the ecclesiastic

authorities and rejected, in large part, the inquisitorial approach. David

Heim, Note, Damned If You Do, Damned If You Don’t—Why Minnesota’s

Prison-Based Sex Offender Treatment Program Violates the Right Against

Self-Incrimination, 32 Wm. Mitchell L. Rev. 1217, 1226 (2006). At

common law, in addition to a right to be free from compelled testimony,

an affirmative right to remain silent developed—a right that was

recognized both in court proceedings and in interrogations by agents of

the state. Id. These restrictions, however, were mere rules of evidence.

State constitutions enacted after the American Revolution, but

prior to the constitutional convention, embraced the right against self-

incrimination as a constitutional norm. For example, the Virginia

Declaration of Rights provided “in all capital or criminal prosecutions a

man . . . cannot . . . be compelled to give evidence against himself.” Levy

at 405–06. The framers relied on these state constitutional precedents in

fashioning the Fifth Amendment to the United States Constitution. Id. at

409. While it is commonly believed that state constitutional provisions

were modeled after the Federal Constitution, the opposite is generally

true with respect to the Fifth Amendment. See id.
 31

The purposes of the Fifth Amendment have been discussed in

numerous cases in both state and federal courts. In Murphy v.

Waterfront Commission of New York Harbor, 378 U.S. 52, 84 S. Ct. 1594,

12 L. Ed. 2d 678 (1964), the United States Supreme Court stated that

the Fifth Amendment:
[R]eflects . . . our unwillingness to subject those suspected of
crime to the cruel trilemma of self-accusation, perjury or
contempt; our preference for an accusatorial rather than an
inquisitorial system of criminal justice; . . . our sense of fair
play which dictates a fair state-individual balance by
requiring the government to leave the individual alone until
good cause is shown for disturbing him and by requiring the
government in its contest with the individual to shoulder the
entire load; . . . our distru[s]t of self-deprecatory statements;
and our realization that the privilege, while sometimes a
shelter to the guilty, is often a protection to the innocent.

Murphy, 378 U.S. at 55, 84 S. Ct. at 1596–97, 12 L. Ed. 2d at 681

(internal quotation marks and citations omitted).

B. Framework for Resolution of Fifth Amendment Issues.

While murky on the edges, the United States Supreme Court has

established a general framework for analysis of Fifth Amendment issues.

It is well established that the Fifth Amendment applies in any

proceeding, criminal or civil, in which officials seek answers that might

incriminate the party providing the responses in future criminal

proceedings. Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 322, 38

L. Ed. 2d 274, 281 (1973). There is thus no dispute that requiring

statements from a prisoner as part of a sex offender treatment program

is within the scope of proceedings where the protections of the Fifth

Amendment apply.

In addition, while the Fifth Amendment privilege is not always self-

executing, United States v. Monia, 317 U.S. 424, 427, 63 S. Ct. 409, 410–

11, 87 L. Ed. 376, 380 (1943), the facts establish that Harkins timely
 32

asserted the privilege. He has refused to participate in the SOTP

explicitly on self-incrimination grounds.

Finally, while the Fifth Amendment applies only where the

statements sought by the state might incriminate the person asserting

the privilege in future criminal proceedings, Lefkowitz, 414 U.S. at 77, 94

S. Ct. at 322, 38 L. Ed. 2d at 281, there is no question in this case that

Harkins meets this threshold requirement. The Iowa SOTP requires that

Harkins accept responsibility for his offenses and behavior without any

assurances of confidentiality or immunity from prosecution if he provides

the information required.

The remaining question of Harkins’s Fifth Amendment claim is

whether the SOTP compels Harkins to make incriminating statements. It

has generally been held that truly voluntary statements may be admitted

without violating the Fifth Amendment. Garner v. United States, 424

U.S. 648, 654, 96 S. Ct. 1178, 1182, 47 L. Ed. 2d 370, 377 (1976). Even

when statements are otherwise the product of compulsion, however, any

potential constitutional infirmity under the Fifth Amendment may be

resolved if the state provides use and derivative-use immunity from

prosecution. Kastigar v. United States, 406 U.S. 441, 459–62, 92 S. Ct.

1653, 1664–65, 32 L. Ed. 2d 212, 225–27 (1972).

In this case, the State of Iowa has given Harkins a choice:

participate in a program that requires him to accept full responsibility for

his offenses and behavior or lose his entitlement to earned-time credits

and stay in prison longer.

The nub of this case is whether the State of Iowa can force Harkins

to make this choice consistent with the Fifth Amendment or whether the

State must provide Harkins with Kastigar-type immunity from future

prosecution for the program to survive Fifth Amendment review.
 33

Reaching a decision in this case is made somewhat complex because of a

highly fractured Supreme Court opinion in a key case involving the Fifth

Amendment rights of prisoners required to participate in sex offender

therapy programs—McKune v. Lile, 536 U.S. 24, 122 S. Ct. 2017, 153

L. Ed. 2d 47 (2002).

C. Pre-McKune Development of Fifth Amendment Element of

Compulsion By the United States Supreme Court.

1. Early cases involving compulsion. Early United States Supreme

Court cases considered the question of whether statements made by an

accused were compelled under the Fifth Amendment. For instance, in

Brown v. Walker, 161 U.S. 591, 596–97, 16 S. Ct. 644, 647, 40 L. Ed.

819, 821 (1896), the Supreme Court, noting that the Fifth Amendment

was a protest against inquisitorial methods, observed that the temptation
to press the witness unduly, to browbeat him if he be timid
or reluctant, to push him into a corner, and to entrap him
into fatal contradictions . . . made the system so odious as to
give rise to a demand for its total abolition.

Similarly, in Bram v. United States, 168 U.S. 532, 18 S. Ct. 183, 42

L. Ed. 568 (1897), the Supreme Court cited with favor English precedent,

which declared: “A confession . . . which is obtained from a defendant,

either by the flattery of hope, or by the impressions of fear, however

slightly the emotions may be implanted is not admissible evidence.”

Bram, 168 U.S. at 547, 18 S. Ct. at 188, 42 L. Ed. at 575 (internal

quotation marks and citation omitted). The Bram Court noted that

because the law cannot measure the precise power of the influence

exerted against the accused, the declaration must be excluded if any

influence has been exerted to obtain the statement. Id. at 565, 18 S. Ct.

at 195, 42 L. Ed. at 581.
 34

As late as 1964, in Malloy v. Hogan, 378 U.S. 1, 7, 84 S. Ct. 1489,

1493, 12 L. Ed. 2d 653, 659 (1964), the Supreme Court observed that

the Fifth Amendment was the “essential mainstay” of our “American

system of criminal prosecution.” The Court noted that the Fifth

Amendment protected a defendant’s “ ‘free choice to admit, to deny, or to

refuse to answer’ ” questions posed by the state. Malloy, 378 U.S. at 7,

84 S. Ct. at 1493, 12 L. Ed. 2d at 659 (quoting Lisenba v. California, 314

U.S. 219, 241, 62 S. Ct. 280, 292, 86 L. Ed. 166, 182 (1941)). The Court

further stated that it had held inadmissible “a confession secured by so

mild a whip as the refusal . . . to allow a suspect to call his wife until he

confessed.” Id.

Plainly, these early cases under the Fifth Amendment were

generous to the accused and strongly emphasized the need for liberal

construction of the Fifth Amendment in order to protect the underlying

rights of the accused.

2. Development of concept of penalty and costs. Beginning with

Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106

(1965), the Supreme Court began to characterize the issue of compelled

testimony under the Fifth Amendment in terms of “penalty” or “costs.” In

Griffin, the defendant refused to testify. Griffin, 380 U.S. at 609–10, 85

S. Ct. at 1230, 14 L. Ed. 2d at 107. In closing, the prosecutor argued

that the jury could draw an adverse inference from this failure. Id. at

610–11, 85 S. Ct. at 1231, 14 L. Ed. 2d at 107–08. The trial court also

instructed the jury that, while the defendant had a constitutional right

not to testify, the jury could draw an adverse inference from his failure.

Id. at 610, 85 S. Ct. at 1230, 14 L. Ed. 2d at 107. The Supreme Court

held that the comment of the prosecutor and the trial court instruction

impermissibly imposed a penalty on the exercise of the constitutional
 35

right to remain silent. Id. at 614–15, 85 S. Ct. at 1232–33, 14 L. Ed. 2d

at 109–10. In particular, the Court noted that the prosecution’s

commentary “cuts down on the privilege by making its assertion costly.”

Id. at 614, 85 S. Ct. at 1233, 14 L. Ed. 2d at 110.

The Supreme Court also found threats of termination of

employment violated the Fifth Amendment because the threatened

discharge imposed a penalty on the right to remain silent. See Gardner

v. Broderick, 392 U.S. 273, 279, 88 S. Ct. 1913, 1916, 20 L. Ed. 2d 1082,

1087 (1968); see also Garrity v. New Jersey, 385 U.S. 493, 497–98, 87

S. Ct. 616, 618–19, 17 L. Ed. 2d 562, 565–66 (1967). In Garrity, the

Court emphasized that the protection against coerced statements is a

right “of constitutional stature whose exercise a State may not condition

by the exaction of a price.” Garrity, 385 U.S. at 500, 87 S. Ct. at 620, 17

L. Ed. 2d at 567.

In a case decided the same day as Garrity, the Supreme Court, in

Spevack v. Klein, 385 U.S. 511, 512–13, 87 S. Ct. 625, 626–27, 17

L. Ed. 2d 574, 576 (1967), considered a case in which an attorney was

disbarred for refusing to testify at a judicial inquiry and failing to comply

with a subpoena duces tecum calling for the production of financial

records. The Spevack Court noted that a penalty “is not restricted to a

fine or imprisonment” and includes “the imposition of any sanction

which makes assertion of the Fifth Amendment privilege ‘costly.’ ”

Spevack, 385 U.S. at 515, 87 S. Ct. at 628, 17 L. Ed. 2d at 577 (quoting

Griffin, 380 U.S. at 614, 85 S. Ct. at 1233, 14 L. Ed. 2d at 110). The

Court continued, warning:

“It may be that it is the obnoxious thing in its mildest
and least repulsive form; but illegitimate and
unconstitutional practices get their first footing in that way,
namely, by silent approaches and slight deviations from legal
 36
modes of procedure. This can only be obviated by adhering
to the rule that constitutional provisions for the security of
person and property should be liberally construed. A close
and literal construction deprives them of half their efficacy,
and leads to gradual depreciation of the right, as if it
consisted more in sound than in substance. It is the duty of
courts to be watchful for the constitutional rights of the
citizen, and against any stealthy encroachments thereon.”

Id. (quoting Boyd v. United States, 116 U.S. 616, 635, 6 S. Ct. 524, 535,

29 L. Ed. 746, 752 (1886), abrogated on other grounds by Warden v.

Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967)).

Similarly, in Uniformed Sanitation Men Association v. Commissioner of

Sanitation, 392 U.S. 280, 283–84, 88 S. Ct. 1917, 1919, 20 L. Ed. 2d

1089, 1092–93 (1968), the Supreme Court held that the discharge of

public employees for invoking and refusing to waive the privilege against

self-incrimination, during an investigation of the employees, violated the

employees’ Fifth Amendment rights.

In Lefkowitz, the Supreme Court considered whether the potential

loss of business contracts for licensed architects constituted a penalty

under the Fifth Amendment. Lefkowitz, 414 U.S. at 71–73, 94 S. Ct. at

320–21, 38 L. Ed. 2d at 278–80. In Lefkowitz, the Court emphasized the

role of immunity in overcoming potential Fifth Amendment objections.

Id. at 84–85, 94 S. Ct. at 325–26, 38 L. Ed. 2d at 285–86. According to

the majority, employees must be offered “whatever immunity is required

to supplant the privilege” and may not be required to “waive such

immunity.” Id. at 85, 94 S. Ct. at 326, 38 L. Ed. 2d at 286. In Kastigar,

the Supreme Court determined that use and derivative-use immunity

was sufficient to satisfy Fifth Amendment concerns arising from

otherwise compelled testimony. Kastigar, 406 U.S. at 458, 92 S. Ct. at

1664, 32 L. Ed. 2d at 225.
 37

3. Pre-McKune penalty cases involving Fifth Amendment rights of

persons convicted of crimes. The first case in which the United States

Supreme Court considered the issue of compelled testimony under the

Fifth Amendment in the context of prisoners was Baxter v. Palmigiano,

425 U.S. 308, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976). In Baxter, the

majority held that permitting adverse inferences to be drawn from an

inmate’s silence at a disciplinary proceeding was not, on its face, an

invalid practice. Baxter, 425 U.S. at 320, 96 S. Ct. at 1559, 47 L. Ed. 2d

at 822. The majority emphasized that the inmate’s silence at the

disciplinary hearing was in and of itself insufficient to support an

adverse disciplinary decision. Id. at 317, 96 S. Ct. at 1557, 47 L. Ed. 2d

at 821. As a result, the Court emphasized that “the case is very

different” from the Garrity-Lefkowitz decisions, “where refusal to submit

to interrogation and to waive [a] Fifth Amendment privilege, standing

alone and without regard to other evidence, resulted in loss of

employment or opportunity to contract with the State.” Id. at 318, 96

S. Ct. at 1557–58, 47 L. Ed. 2d at 821 (emphasis added).

The Court next confronted a Fifth Amendment question in the

context of probation. In Minnesota v. Murphy, 465 U.S. 420, 422, 104

S. Ct. 1136, 1139, 79 L. Ed. 2d 409, 416 (1984), a probationer was

required, as a condition of probation, to regularly meet with his

probation officer. During his required appearance, the probationer

admitted that he committed a rape and murder. Murphy, 465 U.S. at

424, 104 S. Ct. at 1140, 79 L. Ed. 2d at 417. After a grand jury returned

an indictment for murder, the probationer sought to suppress the

incriminating statements on Fifth Amendment grounds. Id. at 425, 104

S. Ct. at 1141, 79 L. Ed. 2d at 417. The Supreme Court, under the facts

presented, held that there was no Fifth Amendment violation because the
 38

probationer did not timely assert his Fifth Amendment privilege during

the interview with the probation officer. Id. at 440, 104 S. Ct. at 1149,

79 L. Ed. 2d at 428. The Supreme Court majority repeatedly framed the

issue as one of “waiver” and “timely” assertion of Fifth Amendment

rights. Id. at 428–29, 437–40, 104 S. Ct. at 1142–43, 1147–49, 79

L. Ed. 2d at 420, 426–28.

The Murphy Court distinguished the penalty cases. While a timely

assertion of Fifth Amendment privileges was not required in penalty

cases, the Murphy Court noted that the state did not impose a penalty

because the probationer was only required to appear before his probation

officer and discuss matters concerning probation. Id. at 435, 104 S. Ct.

at 1146, 79 L. Ed. 2d at 424. The state did not require the probationer

to surrender his Fifth Amendment privilege or face a penalty. Id. at 436–

37, 104 S. Ct. at 1147, 79 L. Ed. 2d at 425–26. Once the probation

officer exercised his discretion to ask questions requiring the probationer

to provide potentially incriminating answers, the probationer was

required to assert the privilege. Id. at 437–38, 104 S. Ct. at 1147–48, 79

L. Ed. 2d at 426–27. At that point, the state would have the option of

dropping the inquiry or providing immunity sufficient to address the

privilege. 5 Id. at 435 n.7, 104 S. Ct. at 1146 n.7, 79 L. Ed. 2d at 425

n.7.

The Murphy Court emphasized, however, that the probationer did

not lose his Fifth Amendment protection simply because he had been

5Justice Marshall, joined by Justice Stevens in part and by Justice Brennan,
dissented. The dissent recognized that the key issue in the case was whether the
probationer was required to timely assert the privilege or whether the privilege was self-
executing. Murphy, 465 U.S. at 442, 104 S. Ct. at 1150, 79 L. Ed. 2d at 429 (Marshall,
J., dissenting) (asserting that the flaw in the majority’s approach lies not in analysis of
constitutional rights, but in finding that rights were not violated in this case because of
Murphy’s failure to assert privilege).
 39

convicted of a prior crime. Id. at 426, 104 S. Ct. at 1141, 79 L. Ed. 2d at

418. Further, the Murphy Court implied that the outcome would have

been different if the probationer had timely invoked his Fifth Amendment

privileges. See id. at 435, 104 S. Ct. at 1146, 79 L. Ed. 2d at 424–25. As

noted by the Murphy Court:
There is . . . a substantial basis in our cases for concluding
that if the State, either expressly or by implication, asserts
that invocation of the privilege would lead to revocation of
probation, it 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 and inadmissible in a criminal prosecution.

Id. Plainly, Murphy turned on the fact that the probationer waived his

Fifth Amendment rights by responding to the probation officer’s

questions. See id. at 429, 104 S. Ct. at 1143, 79 L. Ed. 2d at 420.

In Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 277, 118

S. Ct. 1244, 1248, 140 L. Ed. 2d 387, 394 (1998), a state prisoner

sentenced to death alleged that Ohio’s clemency statute violated his Fifth

Amendment right to remain silent. The prisoner claimed that there was

a substantial risk of incrimination because postconviction proceedings

were in progress and also because he could potentially incriminate

himself on other crimes at the clemency interview. Woodard, 523 U.S. at

285, 118 S. Ct. at 1252, 140 L. Ed. 2d at 399. Though the Supreme

Court was highly divided on a number of issues, it unanimously held

that giving an inmate the option of voluntarily participating in an

interview as part of the clemency process does not offend the Fifth

Amendment. Id. at 287–88, 118 S. Ct. at 1253, 140 L. Ed. 2d at 400–01.

According to the Court, the prisoner failed to establish that his testimony

at a clemency hearing would be “compelled” under the Fifth Amendment.

Id. at 286, 118 S. Ct. at 1252, 140 L. Ed. 2d at 399–400. The choice of
 40

whether to participate in a clemency hearing, according to the Court, was

no different than the choice to take the stand in a criminal case. Id. at

286–87, 118 S. Ct. at 1252–53, 140 L. Ed. 2d at 400. No automatic

sanction attached to the refusal to participate in the clemency hearing

other than potential impact on the clemency hearing itself. See id.

D. Pre-McKune Case Law Regarding Fifth Amendment

Implications of Sex Offender Therapy Programs.

1. Approach of lower federal courts and state courts. Prior to

McKune, the results of court challenges to required sex offender

treatment programs were mixed. In Mace v. Amestoy, 765 F. Supp. 847,

850–51 (D. Vt. 1991), a federal district court held that the Fifth

Amendment is violated when a sex offender is required to disclose past

misconduct as a condition of probation or a court-suspended sentence.

The Mace court distinguished Murphy on the ground that the probationer

in Mace was required to detail sexual history, not simply make truthful

statements to a probation officer. Mace, 765 F. Supp. at 851. Thus, in

Mace, the court concluded that the privilege was self-executing and

placed the petitioner in a “classic penalty” situation. Id. The Mace court

recognized the legitimate state interest in rehabilitation, but observed

that citizens cannot be forced to incriminate themselves merely because

it advances a governmental need. Id. at 852; see also State v. Imlay, 813

P.2d 979, 985 (Mont. 1991) (finding “the better reasoned decisions are

those decisions which protect the defendant’s constitutional right against

self-incrimination, and which prohibit augmenting a defendant’s

sentence because he refuses to confess to a crime or invokes his privilege

against self-incrimination”).

Other courts, however, were less sympathetic to claims of Fifth

Amendment violations in the context of sex offender treatment programs.
 41

Some courts refused to grant relief on factual grounds. For instance, in

Doe v. Sauer, 186 F.3d 903, 906 (8th Cir. 1999), the Eighth Circuit held

an Iowa sex offender was not entitled to relief in a § 1983 action on the

ground that he was denied parole because of his refusal to incriminate

himself as required by Iowa authorities as part of a sex offender

treatment program. The Doe court emphasized, however, that Doe had

failed to provide any factual evidence that he was denied parole based

upon his exercise of Fifth Amendment rights and not solely based upon

the seriousness of the offense or his refusal to participate in

rehabilitation. Doe, 186 F.3d at 905–06.

On the other hand, the Supreme Court of Minnesota in State ex rel.

Morrow v. LaFleur, 590 N.W.2d 787, 792 (Minn. 1999), abrogated by

Johnson v. Fabian, 735 N.W.2d 295, 305 (Minn. 2007), considered

whether a Minnesota sex offender therapy program requiring participants

to admit the conduct for which they were convicted violated the Fifth

Amendment. While the majority noted that an offender who declined to

participate was denied early release from prison, it drew a distinction

between early release from one’s sentence, which was not a penalty

under the Fifth Amendment, and revocation of probation, which was

such a penalty. Morrow, 590 N.W.2d at 793. The Morrow majority

opinion, however, drew a sharp dissent which found the distinction

unpersuasive and noted the fact that the State of Minnesota had a

legitimate interest in rehabilitating sex offenders had nothing to do with

the question of whether the admissions in Minnesota’s sex therapy

program were compelled. Id. at 797–98 (Page, J., dissenting).

At least one pre-McKune court, however, focused on whether denial

of parole or probation automatically followed the exercise of Fifth

Amendment rights in sex therapy programs. In Ainsworth v. Risley, 244
 42

F.3d 209 (lst Cir. 2001), the court attempted to reconcile potentially

inconsistent cases by noting the distinction between cases where the

denial of parole was automatic and those where the denial of parole

rested in the discretion of prison authorities. Risley, 244 F.3d at 220,

vacated by Ainsworth v. Stanley, 536 U.S. 953, 122 S. Ct. 2652, 153

L. Ed. 2d 829 (2002) (judgment vacated and case remanded for further

consideration in light of McKune).

2. Approach of lower federal courts to Fifth Amendment implications

of sex therapy programs in McKune. In Lile v. McKune, 24 F. Supp. 2d

1152, 1155 (D. Kan. 1998), the federal district court considered whether

a Kansas prison-based sex therapy program violated the Fifth

Amendment rights of a prisoner, Robert Lile, who had been convicted of

sex offenses. At the time of his challenge, Lile had a pending habeas

corpus petition attacking his state court conviction. McKune, 24

F. Supp. 2d at 1154. Although he was not required to participate in a

sex offender therapy program at the beginning of his incarceration, Lile’s

prison counselor added the program to Lile’s inmate program agreement.

Id. at 1154–55. After an unsuccessful administrative challenge to the

addition of the program, Lile signed the modified program, but refused to

participate in sex offender treatment in part because it required him to

sign an “Admission of Guilt” form. Id. at 1155. He also objected to a

program requirement that he provide a written sexual history of all his

prior sexual activities, including uncharged criminal offenses. Id.

The consequence of failure to participate in the program included

transfer to a maximum security setting. Id. In a maximum security

setting, Lile would not have access to a personal television. Id. In

addition, Lile would be placed in a more dangerous environment and

would not be able to earn more than $0.60 a day for prison pay. Id.
 43

Restrictions would also be placed on visitation. Id. Further, the

maximum security setting limited the programming available to Lile as

well as the amount of personal property Lile could keep in his cell. Id.

The district court found that Lile’s Fifth Amendment rights were

violated. Id. at 1158. The district court found that, under the Kansas

scheme, unlike that presented in Woodard, automatic sanctions were

imposed for the assertion of Fifth Amendment rights. Id. Although the

automatic sanctions did not arise to a protected “liberty” interest, there

was no requirement that a liberty interest be implicated in order to

establish compulsion under the Fifth Amendment. Id. at 1159.

On appeal, the United States Court of Appeals for the Tenth Circuit

affirmed. Lile v. McKune, 224 F.3d 1175, 1189 (10th Cir. 2000). At the

outset, the court noted that a refusal to participate in the program did

not automatically disqualify an inmate from parole and did not lead to a

loss of good-time credits. Id. at 1182. The only automatic sanction was

the transfer from medium security to a maximum security setting and

the resulting adverse consequences flowing from the transfer. Id.

Like the district court, however, the Tenth Circuit rejected the

argument that a “liberty” interest must be implicated in order to

establish compulsion under the Fifth Amendment. Id. at 1184. The

Tenth Circuit agreed with the district court that “ ‘by grafting a protected

liberty interest to a finding of compulsion, the standard is set too high.’ ”

Id. at 1184 (quoting McKune, 24 F. Supp. 2d at 1159). The Tenth Circuit

noted that the Supreme Court had held that threat of disbarment,

damage to professional reputation, and loss of income amounted to

impermissible compulsion without an explicit characterization of the

deprivations as protected liberty interests. Id.
 44

The Tenth Circuit distinguished the case from penalty cases where

the Supreme Court had not found a Fifth Amendment violation. Id. at

1186. The Tenth Circuit thus found the case distinguishable from

Baxter, in which silence was simply a factor that might be considered in

a prison disciplinary hearing, but did not involve any automatic adverse

consequences. Id. The court also distinguished Woodard by noting that,

while the inmate who refuses to participate in a clemency proceeding

may affect his chances of receiving clemency, Woodard involved no

“separate and distinct substantial or potent consequences” that were

automatically imposed by his refusal to participate. Id. at 1187. Finally,

the court noted that, in Murphy, the plaintiff was not actually required to

make incriminating statements. Id.

Although the Tenth Circuit determined that the Kansas policy

imposed penalties that violated the Fifth Amendment privilege against

self-incrimination, the court nonetheless proceeded to balance Lile’s Fifth

Amendment right against the prison’s penological interests in

maintaining the program under the four-factor test established in Turner

v. Safley, 482 U.S. 78, 89–90, 107 S. Ct. 2254, 2262, 96 L. Ed. 2d 64,

79–80 (1987). Id. at 1190. While the court determined that the Kansas

program was rationally connected to legitimate governmental interests in

rehabilitation and public safety, it found that Lile had no alternative

means of exercising his Fifth Amendment right. Id. at 1191. The court

also concluded that accommodation of the Fifth Amendment right would

not have a negative effect on guards, other prisoners, or prison

resources. Id. Further, and most importantly, the court reasoned that

the grant of use immunity or some form of privilege was an “obvious,

easy alternative” to save the program from constitutional infirmity. Id. at

1191–92.
 45

E. Approach of United States Supreme Court to Fifth

Amendment Implications of Sex Offender Therapy Programs in

McKune. After the Tenth Circuit decided the case, the Supreme Court

granted the state’s petition for writ of certiorari and reversed. McKune,

536 U.S. at 48, 122 S. Ct. at 2032, 153 L. Ed. 2d at 66 (Kennedy, J.,

plurality opinion). Justice Kennedy wrote a plurality opinion joined by

Chief Justice Rehnquist, Justice Scalia, and Justice Thomas. Justice

Kennedy concluded that Lile was not impermissibly compelled to

incriminate himself and, therefore, was not entitled to use immunity. Id.

at 35–36, 122 S. Ct. at 2025–26, 153 L. Ed. 2d at 58–59. Justice

Stevens, joined by Justices Souter, Ginsberg, and Breyer, dissented. Id.

at 54, 122 S. Ct. at 2035, 153 L. Ed. 2d at 70 (Stevens, J., dissenting).

Justice Stevens declared that, without a grant of use immunity, the

Kansas program would violate the Fifth Amendment. Id. at 69–72, 122

S. Ct. at 2043–45, 153 L. Ed. 2d at 80–81. Justice O’Connor wrote a

concurring opinion that joined in the result reached by Justice Kennedy.

Id. at 54, 122 S. Ct. at 2035, 153 L. Ed. 2d at 66 (O’Connor, J.,

concurring). Because Justice O’Connor’s opinion provided a fifth vote in

support of the judgment, the Supreme Court denied Lile relief. See id.

In his plurality opinion, Justice Kennedy repeatedly emphasized

that the gravity of the consequences of declining to participate in the

Kansas program did not amount to compelled testimony under the Fifth

Amendment. Justice Kennedy characterized “the incentives” as

“minimal.” Id. at 29, 122 S. Ct. at 2022, 153 L. Ed. 2d at 54 (plurality

opinion). He stressed that the consequences of a transfer to the

maximum security unit were not ones that compel a prisoner to testify

about past crimes. Id. at 36, 122 S. Ct. at 2026, 153 L. Ed. 2d at 58.

Justice Kennedy observed that the decision regarding where to house an
 46

inmate was at the core of prison administrators’ expertise. Id. at 39, 122

S. Ct. at 2027, 153 L. Ed. 2d at 60.

In reaching his conclusions, Justice Kennedy utilized a due

process test developed by the Court in Sandin v. Conner, 515 U.S. 472,

115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995). Id. at 37, 122 S. Ct. at 2026–

27, 153 L. Ed. 2d at 59–60. In Sandin, the Supreme Court held that a

prisoner did not have a liberty interest for purposes of procedural due

process in the terms and conditions of confinement unless they

constituted “atypical and significant hardship[s] on the inmate in relation

to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484, 115

S. Ct. at 2300, 132 L. Ed. 2d at 430. Justice Kennedy found that the

Sandin framework provided “a reasonable means of assessing whether

the response of prison administrators to correctional and rehabilitative

necessities are so out of the ordinary that one could sensibly say they

rise to the level of unconstitutional compulsion.” McKune, 536 U.S. at

41, 122 S. Ct. at 2029, 153 L. Ed. 2d at 62 (plurality opinion).

Justice Kennedy wrote that determining compulsion was a

question of judgment. Id. at 41, 122 S. Ct. at 2028, 153 L. Ed. 2d at 62.

He found the administrative harms de minimis when compared to the

harms in Murphy, Woodard, and Baxter. Id. at 42–43, 122 S. Ct. at

2029–30, 153 L. Ed. 2d at 63. Yet, Justice Kennedy pointedly noted that

the Kansas program “did not extend [Lile’s] term of incarceration,” nor

did it “affect [Lile’s] eligibility for good-time credits or parole.” Id. at 38,

122 S. Ct. at 2027, 153 L. Ed. 2d at 60.

Justice Stevens’s dissent emphasized the Court’s historic

treatment of the Fifth Amendment and asserted that the Fifth

Amendment guaranteed the right to remain silent unless one chose to

speak “ ‘in the unfettered exercise of his own will, and to suffer no
 47

penalty’ ” for such silence. Id. at 56–58, 122 S. Ct. at 2037, 153

L. Ed. 2d at 72 (Stevens, J., dissenting) (quoting Malloy, 378 U.S. at 8,

84 S. Ct. at 1493–94, 12 L. Ed. 2d at 659). He challenged the plurality’s

treatment of Woodard, Baxter, and Murphy, noting that each turned not

on the seriousness of the consequences but on other flaws in the

asserted Fifth Amendment claims. Id. at 59–62, 122 S. Ct. at 2038–40,

153 L. Ed. 2d at 73–75.

Justice Stevens characterized as “wholly unpersuasive” the notion

that the consequences suffered by Lile for invoking his Fifth Amendment

rights were so insignificant as to not trigger Fifth Amendment

protections. Id. at 64, 122 S. Ct. at 2041, 153 L. Ed. 2d at 77. Justice

Stevens emphasized that the coerciveness of changes in prison

conditions must be measured “not by comparing the quality of life in a

prison environment with that in a free society, but rather by the contrast

between the favored and disfavored classes of prisoners.” Id. at 67, 122

S. Ct. at 2042–43, 153 L. Ed. 2d at 79. According to Justice Stevens, it

was plain that the aggregate effect of the change in prison environment

amounted to compulsion. Id.

Finally, Justice Stevens criticized the balancing approach in the

plurality opinion. Citing Lefkowitz, he noted that the Court had

previously rejected the notion that citizens may be forced to incriminate

themselves because it served a governmental need. Id. at 68–69, 122

S. Ct. at 2043, 153 L. Ed. 2d at 79–80. He noted that the state could

further its goals by granting use immunity or by establishing a voluntary

program. Id. at 69–71, 122 S. Ct. at 2043–45, 153 L. Ed. 2d at 80–81.

No matter what the goal, however, Justice Stevens wrote that inmates

should not be compelled to forfeit the privilege against self-incrimination

“simply because the ends are legitimate or because they have been
 48

convicted of sex offenses.” Id. at 71, 122 S. Ct. at 2045, 153 L. Ed. 2d at

81.

Justice O’Connor wrote that the standard for Fifth Amendment

compulsion is broader than the “atypical and significant hardship”

standard adopted in prison due process cases. Id. at 48, 122 S. Ct. at

2032, 153 L. Ed. 2d at 66–67 (O’Connor, J., concurring). Yet, she did

not find the “alterations in respondent’s prison conditions” so great as to

constitute compulsion under the Fifth Amendment. Id. at 48–49, 122

S. Ct. at 2032–33, 153 L. Ed. 2d at 66–67. Instead, she found the

alterations to be “minor” and that, while the conditions may have made

the prison experience “more unpleasant,” imposition of the conditions

were “very unlikely to actually compel [Lile] to incriminate himself.” Id.

at 51, 122 S. Ct. at 2034, 153 L. Ed. 2d at 68. Regarding the transfer

from a medium to maximum security area, Justice O’Connor noted that

there were no findings about how great a danger arose from such a

placement. Id.

But Justice O’Connor wrote that she did not believe penalties

could include longer incarceration or execution. Id. at 52, 122 S. Ct. at

2034–35, 153 L. Ed. 2d at 69. According to Justice O’Connor, the

imposition of such outcomes for refusing to incriminate oneself would

surely implicate a “liberty” interest. Id. The logical implication of Justice

O’Connor’s concurrence is that, while a “liberty” interest is not a

prerequisite for stating a Fifth Amendment compulsion claim, the

sacrifice of a protected “liberty” interest would, at minimum, raise

serious difficulties under the Fifth Amendment. See id.

Wholly absent from Justice O’Connor’s opinion is the notion of

balancing the Fifth Amendment rights of a prisoner against legitimate

interests of the state. Her opinion focuses solely on what constitutes
 49

compulsion under the Fifth Amendment. A majority of the Supreme

Court has not embraced the balancing approach in Justice Kennedy’s

plurality opinion.

F. Federal Case Law Subsequent to McKune. Subsequent to

McKune, federal courts have considered Fifth Amendment claims by

prisoners in a number of contexts. Shortly after McKune, the Tenth

Circuit decided Searcy v. Simmons, 299 F.3d 1220 (10th Cir. 2002). In

Searcy, the facts differed from McKune in that the prisoner claimed that

his good-time credits were impacted when he refused to incriminate

himself in a sex offender therapy program. Searcy, 299 F.3d at 1223.

The Searcy court concluded that, because the prisoner did not lose

guaranteed good-time credits due to his refusal to participate in the sex

offender therapy program, there was no constitutional violation. Id. at

1226; see also Wirsching v. Colorado, 360 F.3d 1191, 1203–04 (10th Cir.

2004) (no Fifth Amendment violation where loss of good-time credits is

discretionary).

Similarly, in Entzi v. Redmann, 485 F.3d 998, 1000 (8th Cir. 2007),

the Eighth Circuit considered a Fifth Amendment claim by a prisoner

whose supervised probation was conditioned on participation in a sex

offender program. While in prison, Entzi refused to comply with a state

court order that he participate in a sex offender education class as a

condition of probation. Entzi, 485 F.3d at 1000. The state filed a

petition to revoke Entzi’s probation based upon his failure to complete

the program, but the state court dismissed the petition because it

concluded that the program violated the Fifth Amendment. Id. at 1002.

Entzi brought a § 1983 action claiming that the state violated the Fifth

Amendment by filing the revocation petition and withholding his good-

time credits for failing to participate in sex offender treatment. Id. at
 50

1001. The district court granted summary judgment and judgment on

the pleadings against Entzi, and Entzi appealed. Id. at 1001, 1003.

The Eighth Circuit denied relief. Id. at 1004. On the issue of

probation, the court noted that the only consequence of the refusal to

participate in the sex offender treatment program was the filing of a

probation revocation petition, which the district court refused to grant.

Id. at 1002. The mere filing of a petition, according to the Eighth Circuit,

was not sufficient compulsion under the Fifth Amendment. Id. With

respect to the good-time credit issue, the Eighth Circuit noted that, as in

Searcy, there was no automatic revocation of good-time credits. Id. at

1004. Instead, the North Dakota Department of Corrections had

discretionary authority to order, or not to order, such reductions. Id.

The Ninth Circuit faced a situation different than that in Searcy

and Entzi in United States v. Antelope, 395 F.3d 1128 (9th Cir. 2005).

Antelope was a convicted sex offender who was made an offer of

supervised release from prison. Antelope, 395 F.3d at 1130. The offer

was conditioned, however, upon participation in a sex offender therapy

program where he was required to submit to polygraph examinations

detailing his sexual history. Id. Antelope refused to submit to the

polygraphs on Fifth Amendment grounds because of the risk that he

might reveal past crimes that could lead to his prosecution. Id. at 1130.

In response, the state twice revoked his conditional liberty and sent him

back to prison. Id. at 1131. In Antelope, the Ninth Circuit reviewed the

established Fifth Amendment case law and proceeded to analyze two

prongs required to successfully invoke the Fifth Amendment:

incrimination and compulsion. Id. at 1134.

With respect to incrimination, the Ninth Circuit found that the risk

was “real and appreciable.” Id. at 1135. Antelope was required to detail
 51

his sexual history to a probation officer and submit to “full disclosure”

polygraph examinations verifying his sexual history. Id. The sex

offender therapy counselor testified that if Antelope revealed past sex

offenses, he would turn over the evidence to prosecutorial authorities.

Id. The counselor further testified that in the past his reports had

resulted in convictions. Id. The disclosure form Antelope was required

to sign specifically authorized the counselor to make such reports. Id.

The Ninth Circuit next turned to the compulsion prong. The court

noted while Justice Kennedy’s plurality opinion in McKune rejected

reliance on “the so-called penalty cases,” Justice O’Connor’s concurring

opinion found only that the penalties involved in McKune were not severe

enough. Id. at 1136. The court further observed that Justice O’Connor

rejected the notion that “ ‘penalties [like] longer incarceration’ ” were

insufficient to trigger Fifth Amendment protection. Id. at 1137 (quoting

McKune, 536 U.S. at 52, 122 S. Ct. at 2034, 153 L. Ed. 2d at 69

(O’Connor, J., concurring)).

Following Justice O’Connor’s opinion, the Ninth Circuit held that

the state could not sanction Antelope for his silence about other crimes.

Id. Although the court recognized that the state had a legitimate

purpose, the court stated that “[t]he irreconcilable constitutional problem

. . . is that even though the disclosures sought here may serve a valid

rehabilitative purpose, they also may be starkly incriminating.” Id. at

1138. As a result, the Ninth Circuit found that Antelope was entitled to

Kastigar immunity. Id. at 1140–41.

G. Discussion of Fifth Amendment Issue.

1. Controlling authority in context of plurality opinions. Justice

Kennedy’s plurality opinion in McKune—which imports the Sandin

framework in determining whether a sex offender treatment program
 52

exacts an unconstitutional penalty under the Fifth Amendment—

represented a striking departure from Fifth Amendment case law. The

approach of Justice Kennedy’s plurality opinion, however, is not

controlling in this case. When there is no majority opinion, the holding

of the Supreme Court is expressed by those members of the Court who

concurred in the judgment on the narrowest grounds. Marks v. United

States, 430 U.S. 188, 193, 97 S. Ct. 990, 993, 51 L. Ed. 2d 260, 266

(1977). As a result, the standard articulated by Justice O’Connor is

controlling.

2. Application of approach of Supreme Court precedent. The test

established by Justice O’Connor’s concurring opinion is less demanding

than that of Justice Kennedy’s plurality. The test to be applied by

Justice O’Connor is somewhat opaque, but it is clearly a lower hurdle

than the “atypical and significant hardship” standard applied in Sandin.

See McKune, 536 U.S. at 48, 122 S. Ct. at 2032, 153 L. Ed. 2d at 66–67

(O’Connor, J., concurring). She stated that the case turned on the

“minor” nature of the change in prison conditions. Id. at 51, 122 S. Ct.

at 2034, 153 L. Ed. 2d at 68. Further, unlike in this case, Justice

O’Connor emphasized that the period of incarceration was not extended.

Id. at 52, 122 S. Ct. at 2034, 153 L. Ed. 2d at 69.

In addition, although not required by Justice O’Connor’s

concurring opinion, Harkins has demonstrated he has a “liberty” interest

in his earned-time credits. In this case, by exercising his Fifth

Amendment right, Harkins is automatically deprived of earned time to

which he would be otherwise entitled. See Iowa Code § 903A.2(1)(a)

(2007). We have held that a prisoner’s interest in earned time under

such a scheme is a liberty interest under Sandin that is afforded due

process protection. Reilly v. Iowa Dist. Ct., 783 N.W.2d 490, 495 (Iowa
 53

2010). The language in Justice O’Connor’s opinion strongly implies that

the presence of a “liberty” interest would be problematic under the Fifth

Amendment. See McKune, 536 U.S. at 52, 122 S. Ct. at 2034–35, 153 L.

Ed. 2d at 69 (O’Connor, J., concurring).

Justice O’Connor does state that the proper theory should

recognize that it is “generally acceptable” to impose risk of punishment

“so long as actual imposition of such punishment is accomplished

through a fair criminal process.” Id. at 53, 122 S. Ct. at 2035, 153

L. Ed. 2d at 69. But a defendant does not receive “a fair criminal

process” in a prosecution in which the defendant’s compelled testimony

is used against him. 6

My approach is consistent with the evolving federal case law. The

lower federal courts, for purposes of the Fifth Amendment, distinguish

between loss of earned time at the discretion of prison authorities and

loss of earned time that automatically results from an exercise of Fifth

Amendment rights, both before and after McKune. 7 Compare Antelope,

395 F.3d at 1137–38 (finding compulsion where offer of released

supervision from prison was conditioned upon revealing past crimes),

and Mace, 765 F. Supp. at 850–51 (finding compulsion where probation
conditioned on self-incrimination), with Ainsworth, 244 F.3d at 220

(finding no compulsion where parole not automatically denied for failure

to complete course), and Searcy, 299 F.3d at 1226 (finding no

6If, however, this phraseology in Justice O’Connor’s opinion should be
interpreted as broadly as suggested by the majority, then Justice Kennedy’s opinion
becomes the narrowest ground. The presence of a “liberty interest” would be sufficient
under Justice Kennedy’s opinion to extend Fifth Amendment protection to Harkins. See
McKune, 536 U.S. at 41, 122 S. Ct. at 2029, 153 L. Ed. 2d at 62 (plurality opinion).
7Our decision in In re C.H., 652 N.W.2d 144 (Iowa 2002), is consistent with this

distinction. In In re C.H., there was no automatic termination of parental rights as a
result of the failure of the parent to complete a sex therapy program. In re C.H., 652
N.W.2d at 150. In re C.H. is thus more akin to Woodard than this case.
 54

compulsion where eligibility for good-time credits vested within the

discretion of penal authorities).

In light of Justice O’Connor’s approach and the developing law in

the federal appellate courts, I conclude that, under the Fifth Amendment,

the State of Iowa must provide Harkins with immunity that is

coextensive with the scope of his Fifth Amendment privilege if it seeks to

subject Harkins to the loss of earned time if he declines to participate in

the SOTP. Under Kastigar, it is clear that use and derivative-use

immunity satisfies this requirement for purposes of the Fifth

Amendment. Kastigar, 406 U.S. at 458, 92 S. Ct. at 1664, 32 L. Ed. 2d

at 225.

In light of this analysis, I conclude that Harkins has established

that the State imposes an impermissible penalty for the exercise of his

Fifth Amendment rights. The State may force Harkins to choose between

waving his Fifth Amendment rights and losing earned-time credit only if

it provides Harkins with use and derivative-use immunity from

prosecution.

III. Preservation of State Constitutional Issue.

Independent state constitutional grounds for the right against self-

incrimination are well established. 8 In a footnote, the majority indicates

that Harkins has not preserved his state constitutional law claim.

8See, e.g., State v. Bowe, 881 P.2d 538, 546–47 (Haw. 1994) (holding under
Hawaii Constitution that coerced confession obtained by private party must be
excluded); State v. Isom, 761 P.2d 524, 528–29 (Or. 1988) (holding that Oregon
Constitution barred impeachment of defendant with prior inconsistent statements
obtained in violation of Miranda); Commonwealth v. Bussey, 404 A.2d 1309, 1314 (Pa.
1979) (stating Pennsylvania Constitution requires proof of waiver of Fifth Amendment
rights beyond a reasonable doubt); Zuliani v. State, 903 S.W.2d 812, 825 (Tex. Ct. App.
1995) (rejecting federal harmless error rule under Texas Constitution where physical
violence applied to obtain confession); State v. Wood, 868 P.2d 70, 82 & n.2 (Utah
1993), abrogated on other grounds by State v. Mirquet, 914 P.2d 1144, 1147 n.2 (Utah
1996) (rejecting Supreme Court precedent in determining when person is “in custody”
for purposes of Utah Constitution); Westmark v. State, 693 P.2d 220, 222 (Wyo. 1984)
 55

The issue of whether Harkins preserved his state constitutional

claim raises a close question. His primitive filings with the district court

mention self-incrimination, but do not identify whether he poses a state

or federal claim. Ordinarily, when a party generically refers to a

constitutional claim with both state and federal counterparts but does

not identify specifically which constitution he or she is proceeding under,

we will consider the arguments raised under both constitutions. King v.

State, 797 N.W.2d 565, 571 (Iowa 2011).

This case, however, raises a new procedural issue that we have not

yet confronted. The majority suggests that Harkins waived his claim

when the district court entered a ruling based solely on the Fifth

Amendment and he failed to file a motion under Iowa Rule of Civil

Procedure 1.904(2). In Meier v. Senecaut, 641 N.W.2d 532 (Iowa 2002),

we noted that a motion for enlargement was necessary to preserve error

“ ‘when the district court fails to resolve an issue, claim, or . . . legal

theory properly submitted for adjudication.’ ” Meier, 641 N.W.2d at 539

(quoting Explore Info. Servs. v. Iowa Ct. Info. Sys., 636 N.W.2d 50, 57

(Iowa 2001)). Under our cases, it is clear that the district court may

consider state constitutional claims when a party simply identifies a

constitutional principle that could have been brought under both

constitutions. King, 797 N.W.2d at 571. When the district court does

not consider the state constitutional issue, there is a question as to

whether the claim is preserved under Meier in the absence of a motion

________________________________
(holding postarrest silence may not be used against accused under Wyoming
Constitution). See generally Mary A. Crossley, Note, Miranda and the State Constitution:
State Courts Take a Stand, 39 Vand. L. Rev. 1693, 1717–30 (1986) (discussing various
ways state courts have departed from federal precedent in interpreting state self-
incrimination provisions); 2 Jennifer Friesen, State Constitutional Law: Litigating
Individual Rights, Claims and Defenses § 12.09, at 12–112 to –115 (LexisNexis, 4th ed.
2006) (collecting cases).
 56

for enlargement of the district court’s conclusions. Where a party

claiming constitutional rights does not distinguish between the Iowa

Constitution and the Federal Constitution, the argument actually made

is applied under both constitutions. Id. As a result, no party has been

deprived of the opportunity to address a new substantive argument if

Meier error-preservation rules do not apply.

In this case, however, not only was there a failure to file a motion

for enlargement after the district court entered a ruling solely on the

federal constitutional issue, there was a failure at the appellate level as

well. The State argued that the issue of state constitutional law was not

preserved. In response, Harkins cited Fifth Amendment cases and

generally claimed that his “Fifth Amendment rights and the right to due

process” were violated. When faced with an explicit challenge regarding

whether he adequately raised a state constitutional claim with his vague

district court pleadings, Harkins had an obligation at that point to fish or

cut bait. If he had raised the state constitutional issue in his brief, the

State would then have had an opportunity to reply to his state law

argument. Harkins did not do so, and the majority’s conclusion that we

should not consider the state law claim in this unusual posture is

probably correct.

I am, however, not entirely satisfied with this approach. A pro se

plaintiff is not well schooled in legal niceties. This is not a case involving

a prolix pleading where the nature of the claim is impossible to

understand. We know exactly what the factual basis is for the claim.

Yet, we have consistently held that where a party raises only a federal or

state constitutional claim and does not mention or raise in an identifiable

way the parallel constitutional provision, the claim under the parallel

constitutional provision is not preserved. See, e.g., State v. Palmer, 791
 57

N.W.2d 840, 844 (Iowa 2010); State v. Allensworth, 748 N.W.2d 789, 791

n.2 (Iowa 2008); State v. Griffin, 691 N.W.2d 734, 736–37 (Iowa 2005).

We have further repeatedly stated that pro se litigants are not to be

provided special treatment in the appellate process. Colvin v. Story Cnty.

Bd. of Review, 653 N.W.2d 345, 348 n.1 (Iowa 2002); Johnson v.

Nickerson, 542 N.W.2d 506, 513 (Iowa 1996); State v. Walker, 236

N.W.2d 292, 294 (Iowa 1975). The question of whether we should

reconsider this approach is not before us. As a result, I conclude that

the majority did not err when it declined to entertain a state

constitutional challenge on appeal.

IV. Conclusion.

For the reasons stated above, I believe the writ requested by

Harkins should be sustained, the State’s writ annulled, and the case

remanded for reinstatement of Harkins’s earned-time credits after

March 22, 2009.

Wiggins and Hecht, JJ., join this dissent.