dissenting.
T59 Because I believe the district court erred in concluding that revoking the defendant's probation for refusing to answer the questions posed to him, as alleged in the complaint, would violate his Fifth Amendment privilege against self-inerimination, I respectfully dissent, In particular, I disagree with the majority's analysis of the Fifth Amendment compulsion question or, more to the point for a case in which no incriminating statements were ever made, the question whether the imposition of any given consequence for asserting the privilege against self-incrimination would amount to a prohibited penalty. Given the extremely unsettled state of United States Supreme Court jurisprudence in this area in general, and concerning the applicability of the privilege to the treatment of convicted sex offenders in particular, I would not leap to characterize revocation of probation, in and of itself, as a prohibited "substantial penalty" for a probationer's refusal to merely answer forthrightly whether he has violated a condition of his probation by possessing child pornography
1 60 The majority's conclusion to the contrary appears to me to rest entirely on a hypothetical example offered by the Supreme Court, over thirty years ago, suggesting a situation in. which, in contradistinetion to the case actually before it, the privilege against self-incrimination might be considered self-executing and, therefore, not have to be asserted at all. See Minnesota v. Murphy, 465 U.S. 420, 435, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984), In holding that the probationers privilege in the case actually before it was not self—executmg, and therefore did have to be invoked to .be relied on, the Court indicated that the result of its analysis "may be different" if the questions put to him called for angwers that would be incriminating; and that there was a "substantial basis" in the Court's cases for concluding that if the state indicated that invocation of the privilege would lead to revocation of probation, the failure of the probationer to assert the privilege would be excused and his answers would be deemed compelled and inadmissible in a criminal prosecution. Id. Ultimately, however, the Court did not conclude that the result would be different under those cireumstances because it found instead that in the case before it the state had taken none of the steps it identified as drawing into question whether the result might be different. See id. at 436, 104 S.Ct. 1136.
- 1 61 The maJ onty simply takes the Court’ query in Murphy as a binding conclusion and moves directly to explaining why today's case is not meaningfully distinguishable from the hypothetical posed there With regard to pronouncements of the United States Supreme Court in particular, I generally find it unhelpful to debate the question whether portions of the published opinions of a higher court represent dicta rather than part of the ratio decidendi itself, and are therefore technically not binding on lower courts, I therefore do not suggest that we should ignore the clear import of Supreme Court pronouncements, no matter how unnecessary they may have been to the outcome of the proceeding, *1050but rather that in Murphy the. Supreme Court never purported to specify cireum-stances in which a probationer's answers to questions would necessarily be compelled, and thereby make the privilege self-executing, much less to identify consequences constituting a constitutionally prohibited "substantial penalty" for asserting the privilege. In Murphy, to make its point about the situation actually at issue, the Court simply juxtaposed that situation with one in which the result "may be different." Id. at 435, 104 S.Ct. 1136.
T 62 Although the probationer in Murphy was also subjected to sex offender treatment the statements at issue there were made to a probation officer, outside any treatment program, and clearly did not implicate a refusal to answer incriminating questions as part of sex offender treatment. By contrast, eighteen years later, in McKune v. Lile, 536 U.S. 24, 122 S.Ct. 2017, 158 L.Ed.2d 47 (2002), the Supreme Court was directly faced with the question whether a prisoner's Fifth Amendment privilege was violated by transferring him to a maximum-security unit, with the accompanying loss of privileges and liberty that transfer entailed, for refusing to participate in a Sexual Abuse Treatment Program on the ground that it would have required disclosures of his criminal history. ~A four-justice plurality would not only have found an absence of unconstitutional compulsion, see id. at 35, 122 S.Ct. 2017, but, in addition, described what it considered the proper inquiry concerning a "substantial penalty" as being whether the consequences of the inmate's choice to remain silent were closer to the physical torture against which the Constitution clearly protects or the de minimis harms against which it does not, id. at 41, 122 S.Ct. 2017.
€63 A fifth justice, who also would have found no unconstitutional compulsion, offered a different standard for making this determination, largely finding constitutional the imposition of virtually any consequence or punishment for remaining silent, as long as the actual imposition was accomplished through a fair criminal process. See id. at 53, 122 S.Ct. 2017 (O'Connor, J., concurring). Importantly, however, Justice O'Connor, as the fifth justice, made clear that she would uphold the penalties assessed against the convict in that case for the reason that they were not compulsive under any reasonable test. See id. at 48-52, 122 S.Ct. 2017.
€ 64 While I agree with the majority that Justice O'Connor's proposal for a comprehensive method of evaluating the constitutionality of penalties imposed upon the exercise of the privilege did not carry the day, her conclusion that the penalty imposed in McKune was not unconstitutionally compulsive under any reasonable test, as the narrowest ground for the judgment of reversal in that case, did represent the holding of the court. See Marks v. United States, 480 U.S. 188, 193, 97 S.Ct. 990, 51 LEd2d 260 (1977); see also People v. Schaufele, 2014 CO 43, ¶ 64 n. 3, 825 P.3d 1060, 1073 n. 3 (Eid, J., concurring). I believe the majority. can reconclle its reading of Murphy with this holding of McKune only by assuming that the Court intended a clean, but unspoken, demarcation between the treatment of sex offenders in prison and the identical treatment of sex offenders as a condition of probation. By contrast, I understand McKune as implying, at least partially, an answer to the suggestion left unresolved in Murphy: Some further infringement on the liberty of a convicted sex offender is not necessarily a constitutionally prohibited "substantial penalty" for refusing to answer incriminating questions that are essential for the sex offender's rehabilitation.
T 65 While McKunme addressed a sex abuse treatment program offered in prison, I believe both the plurality opinion and separate opinion of Justice O'Connor apply equally to similar treatment programs for probationers. In particular, unlike the so-called "penalty cases," both probationers and prisoners have already been convicted of crimes. Both situations involve the same legitimate penological interest in rehabilitation, which, as the Supreme Court has emphasized in the past, must be weighed against the exercise of a criminal conviet's liberty, See, e.g., O'Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 8.Ct. 2400, 96 LEd.2d 282 (1987). Also unlike the penalty cases, the principle of accepting responsibility as the beginning of rehabilitation, which applies equally whether the convict is in prison or has avoided prison by agreeing in advance to accept responsibility as a condition of probation, runs counter to *1051any grant of immunity, which would deprive acceptance of its beneficial effect.
T 66 Both opinions forming the majority in McKune expressed concern for the constitutional validity of both state and federal sentencing considerations and practices taking into account the acceptance of responsibility for purposes of sentencing, probation, or preferential treatment in various penal and rehabilitation programs, if the differential treatment of those admitting and those not admitting their crimes can constitute a "substantial penalty" for Fifth Amendment purposes. See 536 U.S. at 47, 122 S.Ct. 2017; id. at 53, 122 S.Ct. 2017 (O'Connor, J., concurring). A benefit for one who accepts responsibility can easily be cast as a penalty imposed upon another who refuses to do so.
167 As we have often noted in the past, probation is fundamentally rehabilitative in nature, and in order to best serve the ends of justice and the interests of the public, the probationary power of the courts must retain flexibility, See, e.g., People v. Guatney, 214 P.3d 1049, 1052 (Colo.2009). The conditions of any probation must be voluntarily accepted by the prospective probationer, and notwithstanding a violation of those conditions, revocation of probation always remains within the discretion of the court. Id. Similarly, unless the probationer commits a new crime making him ineligible, the court retains the power to re-grant probation on different, and perhaps more onerous, conditions better suited to the probationer's rehabilitation and protection of the public following a decision to revoke. Because the revocation of probation can mean so many different things and have such a wide range of impacts on the liberty interests of a convicted defendant, just as can changing the conditions of confinement of a prisoner, I believe it to be conceptually premature to categorize the revocation of probation, in and of itself, as an unconstitutional penalty for refusing to answer questions integral to sex offender rehabilitation, whether or not the answers may be incriminating.
168 Finally, I note that a convicted sex offender is hardly stripped of due process by being forced to choose between the provisional liberty of probation and rehabilitating himself, even at the cost of self-inerimination. In this jurisdiction, quite apart from constitutional limitations, both the granting and revocation of probation are subject to extensive procedural safeguards,. See Guatney, 214 P.3d at 1051-52, With regard to the nature and extent of self-inerimination permissibly required as a condition of probation, it is also far from clear that the legislative requirement to "participate" in sex offender treatment contemplates mandatory self-inerimination, see §§ 18-1.3-1007(2), -1008(1), C.R.S. (2015); and even if so, that the statute contemplates revocation, rather than simply an inability to successfully complete probation until the probationer is able to admit and discuss his crime. And if not statutorily mandated, the question whether it is within the discretion of a trial court to make sue-cessful rehabilitation a condition of probation is itself subject to exacting standards. See People v. Brockelman, 933 P.2d 1315, 1319 (Colo.1997).
T 69 For all of these reasons, I would make the rule absolute and return the matter for consideration of any remaining disputed issues and the district court's ultimate exercise of discretion concerning the defendant's probationary status. I therefore respectfully dissent.
I am authorized to state that JUSTICE EID joins in this dissent.