By Buck Files
On May 10, 2016, a panel of the United States Court of Appeals for the Tenth Circuit held that a defendant faced some danger of self-incrimination if he was required to answer mandatory questions during a sex offender history polygraph; and, the government’s threat to seek revocation of the defendant’s supervised release constituted an unconstitutional compulsion to submit to such a polygraph under the Fifth Amendment. [The panel: Circuit Judges Briscoe, Seymour and Lucero (opinion by Seymour)] United States v. Von Behren, ___F.3d___, 2016 WL 2641270 (10th Cir. 2016)
A Synopsis of the Facts of the Case
I thought I heard you say, “Hold still little catfish — all I want to do is gut ya!” That could have been the reaction of Bureau of Prisons inmate Brian Von Behren when he learned that the government had requested several new conditions of supervised release and that one of them would require him to participate and successfully complete a sex offender treatment program. At the time that he received this news, Von Behren was close to completing a 121 month sentence for the receipt and distribution of child pornography and faced a term of three years supervised release.
After returning to the free world, Von Behren learned that he was to be assigned to Redirecting Sexual Aggression (RSA), a certified treatment provider mandated by the Colorado Sex Offender Management Board (SOMB). One of the SOMB Guidelines mandated that Von Behren sign a non-negotiable treatment agreement requiring him to complete a non-deceptive sexual history polygraph. A failure to complete this requirement would cause him to be removed from the program. And then there was the cherry on the sundae of the SOMB Guidelines: Von Behren would be required to sign this agreement concerning any crimes committed by him. Continue reading THE FIFTH AMENDMENT AND SEXUAL HISTORY POLYGRAPHS