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Compelled Admissions Made During Court Ordered Sex Treatment Inadmissible
Richard Roosevelt Bahr, Jr. is an admitted sex offender. In 2003, he was convicted in Wasco County, Oregon of third-degree rape—a Class C felony with a person under 16 years of age. He was given a six-year term followed by three years of supervised release which required participation in a sex offender program. The program mandated that he take a “full disclosure” polygraph test concerning his sexual history. Bahr provided a program counselor with the following admissions of past sexual misconduct.
- As a minor, he had sexual contact with six other minors.
- As an adult, he had sexual contact with seven different minors.
- Between ages eighteen and twenty, he had sexual encounters with 8 to 10 sexual encounters with fifteen or sixteen year old girls.
- In a workbook session of the program, he admitted he had sexually abused 18 children.
While still under supervised release, Bahr was arrested in 2010 for possessing more than 600 images depicting sexual abuse of children. He was indicted by a Portland federal grand jury. In June 2012, he pleaded guilty to two counts of possessing child pornography. U.S. District Court Judge Anna J. Brown imposed a harsh 20-year term of imprisonment followed by a life term of supervised release which included what the U.S. Attorney’s Office in Oregon said in a post-sentence statement “stringent conditions of supervision, including prohibitions on associating with minors and frequenting places where children congregate, and restrictions his use of computers … [and participation] in mental health and sex offender treatment, and must register as a sex offender.”
In imposing sentence, Judge Brown not only noted the volume, graphic nature, and sadistic content of the images but Bahr’s background and history of sexual misconduct with minors. Saying that Bahr was a recidivism candidate, the judge said the stern sentence was “enough, but not too much to protect the public, to deter similar conduct in the future, and to take into account the gravity of Bahr’s conduct and the harm done to the children depicted in the images, who were abused in ‘exceedingly outrageous ways.”
The problem is the sentence was unconstitutional—a legal fact both the trial judge and the U.S. Attorney’s office should have known.
The U.S. Supreme Court in 1999, Mitchell v. United States, recognized that the bar against using “compelled statements” in violation of the Fifth Amendment extends to the sentencing phase of a criminal case. In 2005, the Ninth Circuit Court of Appeals, which has jurisdiction over Oregon criminal cases, held that the Fifth Amendment protection against compelled statements apply to “separate criminal proceedings” i.e., compelled statements given in an earlier criminal proceeding cannot be used in a later, unrelated criminal proceeding.
“Full disclosure” polygraph statements, required as a conditions of court ordered probation, given without a guarantee of immunity in a sex offender treatment program are “compelled statements” within the meaning of the Fifth Amendment.
The U.S. Probation Office conducted a “presentence report” in Bahr case which was submitted to Judge Brown to consider in determining what type of sentence to impose. The PSR contained all the “full disclosure” statements Bahr gave in the sex offender treatments about his sexual misconduct history. Judge Brown relied upon this sexual conduct history to fashion her harsh sentence. The Ninth Circuit on September 16, 2013 rebuked the judge’s sentence, saying that the “treatment disclosures violated Bahr’s Fifth Amendment rights.”
Judge Brown and the U.S. Attorney’s office were aware that in 2005 the appeals court held that when the government conditions a “supervised release” on compliance with a “full disclosure” of past sexual misconduct without any provision of immunity for the disclosed conduct, “it unconstitutionally compels self-incrimination.” Bahr was required, as the Ninth Circuit noted, “to give full disclosure without a guarantee of immunity, and with specific acknowledgement from his parole officer that crimes would be reported to the district attorney and could be prosecuted.”
Thus, there was a threat of future criminal prosecution of Bahr for any disclosed sexual misconduct. The question then turned to whether the compelled statements through “full disclosure” were sufficiently coercive as to trigger Fifth Amendment protections. “Bahr faced terms of supervised release that mandated his successful completion of a treatment program,” the Ninth Circuit said, addressing this question. “A refusal or failure to complete the program would in fact subject him to revocation and further incarceration.”
In effect, Bahr had no choice. He was forced to provide “full disclosure” through a polygraph exam and written questions about any prior sexual misconduct lest he face a return to prison. The government tried to get around this constitutional issue by informing the appeals court that Bahr’s mother, Sandra Brown, who had been called by the government, testified about admissions her son had made to her concerning his prior sexual misconduct. The Ninth Circuit brushed aside this argument, pointing out that Judge Brown had relied on the “full disclosure” statements as the basis for admitting Sandra Brown’s testimony.
The appeals court vacated Bahr’s sentence, remanding his case for resentencing absent the “full disclosure” statements. The court did leave open Judge Brown’s discretion as to whether Sandra Brown’s testimony could be used to determine a “valid sentence.”
The Bahr case is interesting for yet another reason. Many sex offender treatment programs in the prison setting are also mandatory and require “full disclosure” of past sexual misconduct. Failure to participate in these treatment programs can result in loss of goodtime and/or the offender being placed in extended lockdown with loss of privileges. The problem is that participation is these “full disclosure” statements are being used as evidence to support indefinite civil commitment of the offender upon completion of his prison sentence. While U.S. Supreme Court has held in a 4-1-4 decision in a 42 U.S.C. § 1983 proceedings that since prisoners do not enjoy the “full protection of the Fifth Amendment,” prison officials can impose sanctions against sex offenders who refuse to participate in treatment programs. But this fractured 2002 decision, McKune v. Lile, left unanswered the question of whether the decision to participate and disclose without a guarantee of immunity would trigger Fifth Amendment protections sufficient to prevent such coercive “compelled” disclosures from being used in a civil commitment proceeding. It would seem that this issue would hinge on whether civil commitment is a purely “civil” or a collateral “criminal” penalty. And that is another discussion altogether…
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Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
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I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
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Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
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John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
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What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
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Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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Great service, very knowledgable and happy to help with any questions I had
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I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
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The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
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From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
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I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
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John and Chris are true professionals! Love those guys like family!
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Mr. Floyd and his team are very knowledgeable, informative, and helpful.
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A team you can depend on to stand up and fight for you to prove the truth the whole truth!
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Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
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The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
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I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
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I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
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Extremely helpful!!! Helping me understand the law.
John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization
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