Compelled Statements Barred in Sentencing

     (CN) – Using a man’s earlier compelled admission to sexually abusing children to determine his sentence in a later child pornography case violates his 5th Amendment rights, the 9th Circuit ruled.
     In 2003, Richard Roosevelt Bahr, Jr. was convicted of third degree rape, and released to a sex offender treatment program.
     As part of this program, he was required to take a “full disclosure” polygraph test, during which he revealed that he had multiple sexual encounters with minors, both as a minor and as an adult. In a workbook exercise, he admitted he had sexually abused 18 children.
     Bahr was later convicted on two counts of possessing child pornography, and sentenced to two concurrent 240-month sentences, after the prosecution included Bahr’s polygraph and workbook admissions in its pre-sentence report.
     But the 9th Circuit reversed the sentences Monday, finding that “the use of the compulsory treatment disclosures at sentencing violated Bahr’s Fifth Amendment privilege against self-incrimination.”
     “Although Bahr did not assert his Fifth Amendment right against self-incrimination at the time of the disclosures, that right is self-executing where its assertion ‘is penalized so as to foreclose a free choice,'” wrote Judge Alfred Goodwin on behalf of the three-judge panel.
     “When the government conditions continued supervised release on compliance with a treatment program requiring full disclosure of past sexual misconduct, with no provision of immunity for disclosed conduct, it unconstitutionally compels self-incrimination,” he said.
     The panel found it irrelevant that Bahr was not prosecuted on the basis of his disclosures. They were still compelled because he was never officially granted immunity, and even though his counselor said she had never seen anyone prosecuted on the basis of their answers.
     “At bottom, Bahr faced revocation of his supervised release for a failure to successfully complete treatment, and he received no assurance that his admissions during treatment would not be used to prosecute him. The government therefore compelled Bahr’s treatment disclosures in violation of the Fifth Amendment, and the district court should not have considered the information,” Goodwin said.
     In addition, the testimony of Bahr’s mother, Sandra Brown, is not an independent basis to uphold Bahr’s sentences, because “the district court relied on the treatment disclosures’ admissibility to justify admitting Brown’s testimony.”

%d bloggers like this: