(dissenting).
I respectfully dissent. The DOC’s policy of imposing DCTA for an inmate’s failure to complete a sex offender treatment program because of the inmate’s refusal to answer official inquiries about his offense during a pending appeal of his conviction violates that *797inmate’s Fifth Amendment privilege against self-incrimination.
The Fifth Amendment provides that “[n]o person * * * shall be compelled in any criminal case to be a witness against himself.” 1 The privilege allows an individual to refuse to answer official questions put to him in any civil or criminal proceeding if the answers might incriminate him in future criminal proceedings.2 When an individual asserts the privilege, “he ‘may not be required to answer a question if there is some rational basis for believing that it will incriminate him, at least without at that time being assured that neither it nor its fruits may be used against him’ in a subsequent criminal proceeding.”3 The fact that the individual is considered to be a bad person should not compel a different result.
Upon entry into the sex offender treatment program at MCF-Lino Lakes, the DOC required Morrow to admit that the conduct resulting in his conviction was “inappropriate, illegal, or harmful” in order to continue with the program. While the DOC required Morrow to admit his conduct, it did not assure him that any admissions he made would not be used against him in any subsequent criminal proceeding. Rather than make any admissions, Morrow asserted his Fifth Amendment privilege against compelled self-incrimination because his conviction was on appeal. From the record it is clear that Morrow’s invocation of his Fifth Amendment privilege was the sole basis for his termination from the program. It is also clear that the only reason he was unwilling to discuss or accept responsibility for his offense was because his appeal was pending. Consequently, it cannot seriously be argued that the imposition of 90 days DCTA resulted from something other than the invocation of his constitutional right.
By its decision in this case, the court now holds that an inmate’s Fifth Amendment privilege is not implicated by being required to answer official inquiries when the state does not seek an order to compel answers to an inquiry, require a waiver of immunity, or threaten the inmate with use of the statements in a future criminal proceeding.4 The distinction the court makes between these last three forms of compulsion and “merely” requiring a response to an official inquiry is lost on me. Making such a distinction is an exercise in semantics and exalts form over substance. Here, the state conceded that, if Morrow had made incriminating statements during the treatment program and subsequently obtained a new trial, it might attempt to use those incriminating statements against him at the new trial. Whether compelled by a court' order, a requirement to waive immunity, a threat to use Morrow’s statements against him, or the addition of DCTA, the compulsion to speak is no different.
Moreover, the court contends that the mere compulsion to speak does not violate, the Fifth Amendment because the state has a legitimate penological interest in treatment of sex offenders. The determination that the state has a legitimate interest should not end the inquiry because the state always has an interest in procuring a statement from the accused.5 The fact that the state may have a *798legitimate interest in procuring a statement does not mean that the state can compel statements in violation of the Fifth Amendment. All that is required to find compulsion in violation of the Fifth Amendment is that the DOC “sought to induce [Morrow] to forgo the Fifth Amendment privilege by threatening to impose economic or other sanctions ‘capable of forcing the self-incrimination which the Amendment forbids.’ ”6
Any contention that the imposition of DCTA is not a sanction capable of forcing self-incrimination is absurd. Although the 90 days DCTA did not alter Morrow’s sentence, it did serve to lengthen the amount of time he actually had to spend in prison. Therefore, without an assurance that his statements would not be used against him, compelling Morrow to answer official inquiries violates his Fifth Amendment privilege.7 The simple solution to this problem, as noted in Welfare of J.W. and A.W.,8 is for the state to grant Morrow immunity for any incriminating statements made relating to the specific crime for which he was convicted and which was the subject of his appeal to the court of appeals.
The fundamental problem with the court’s analysis is its use of substantive due process jurisprudence to prop up its conclusion that the imposition of DCTA does not violate Morrow’s Fifth Amendment rights. The court focuses on whether Morrow has a right to early release and correctly concludes that he does not have a right to a specific supervised release date. However, the court’s reliance on cases such as Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex9 in the context of Fifth Amendment analysis is misplaced. The absence of a substantive due process violation does not necessarily mean that the sanction imposed is not a compulsion in violation of the Fifth Amendment. The inquiry should focus on whether the imposition of DCTA is a sanction “capable of forcing the self-incrimination which the Amendment forbids.” Assuming Morrow’s sentence “belonged presumptively to the state,” the additional 90 days DCTA is still a sanction capable of forcing self-incrimination. Thus, although Morrow is not entitled to a specific supervised release date, on the facts presented here I conclude that he was compelled to waive his privilege against self-incrimination in violation of the Fifth Amendment.
. U.S. Const. amend. V.
. Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984).
. Id. at 429, 104 S.Ct. 1136 (quoting Maness v. Meyers, 419 U.S. 449, 473, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975) (White, J., concurring in result)) (emphasis in original).
. The Second Circuit in Asherman v. Meachum, 957 F.2d 978 (2d Cir.1992) (en banc), distinguished these three forms of compulsion from requiring an inmate to answer official inquiries to prevent revocation of his supervised home release status. Id. at 982. The court assumed that the inmate could not have been subjected to a court order directing him to answer questions upon pain of contempt for refusing to answer. Id. at 981., Further, the court determined that the inmate could not have been ordered to waive his self-incrimination privilege, id. (citing Gard-ner v. Broderick, 392 U.S. 273, 279, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968)), and that the "state may not take adverse action in response to an invocation of the privilege in response to questions not reasonably related to the exercise of state authority." Id. (citing Slochower v. Bd. of Higher Educ., 350 U.S. 551, 558-59, 76 S.Ct. 637, 100 L.Ed. 692 (1956)).
.See, e.g., Lefkowitz v. Cunningham, 431 U.S. 801, 806, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977) (discussing state's legitimate interest in "securing from public employees an accounting of their public trust"). In fact, the court fails to explain *798the difference between the state's legitimate interest in treatment in this case and, for example, the state’s interest in rooting out corruption in Cunningham, or for that matter, the state's interest in determining whether the accused in a murder case committed the crime.
. Murphy, 465 U.S. at 434, 104 S.Ct. 1136 (quoting Cunningham, 431 U.S. at 806, 97 S.Ct. 2132).
. See Asherman, 957 F.2d at 989 (Cardamone, J., dissenting).
. 415 N.W.2d 879, 884 (Minn.1987).
. 442 U.S. 1, 9, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) (discussing the “distinction between being deprived of a liberty one has * * * and being denied a conditional liberty that one desires”).