(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.
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 Com-*530petted 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: 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.
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:
[Rjeflects ... our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusa-torial 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 *531Amendment 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 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. 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 *532so 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.
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 imper-missibly imposed a penalty on the exercise of the constitutional 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, *533626-27, 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 Chiffin, 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 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.
3. Pre-McKune penalty cases involving Fifth Amendment ñghts 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 *534Amendment 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 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 eases, 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 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 com*535pelled 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 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, 249 Mont. 82, 813 P.2d 979, 985 (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. 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 *536Fifth 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 F.3d 209 (1st Cir.2001), the court attempted to reconcile potentially inconsistent eases 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. 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 *537in 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.
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 Mtirphy, 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.
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). *538Justice Kennedy wrote a plurality opinion joined by Chief Justice Rehnquist, Justice Scalia, and Justice Thomas. Justice Kennedy concluded that Lile was not imper-missibly 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 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 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 *539turned 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 2038^0, 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 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 mini-, mum, 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 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 con*540texts. 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 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 Sear-cy, 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 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 *541that 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 Kasti-gar 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 exacts an unconstitutional penalty under the Fifth Amendment — represented a striking departure from Fifth Amendment ease 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’Con-nor 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(l)(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 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, *542536 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 Ains-worth, 244 F.3d at 220 (finding no compulsion where parole not automatically denied for failure to complete course), and Sear-cy, 299 F.3d at 1226 (finding no 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, *543the majority indicates that Harkins has not preserved his state constitutional law claim.
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 ease, 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 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 *544majority’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 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.
IY. 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.
. Justice 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).
. If, 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).
. Our 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.
.See, e.g., State v. Bowe, 77 Hawaii 51, 881 P.2d 538, 546-47 (1994) (holding under Hawaii Constitution that coerced confession obtained by private party must be excluded); State v. Isom, 306 Or. 587, 761 P.2d 524, 528-29 (1988) (holding that Oregon Constitution barred impeachment of defendant with prior inconsistent statements obtained in violation of Miranda); Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309, 1314 (1979) (stating Pennsylvania Constitution requires proof of waiver of Fifth Amendment rights beyond a *543reasonable 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) (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).