6
White, J., dissenting
quently resentenced respondent, again to a 5-year term of imprisonment, and the Montana Supreme Court upheld that sentence in a judgment not now before us for review.
Thus, no matter which party might prevail in this Court, the respondent's term of imprisonment will be the same. At oral argument, neither counsel identified any way in which the interests of his client would be advanced by a favorable decision on the merits—except, of course, for the potential benefit that might flow from an advisory opinion.* Because it is not the business of this Court to render such opinions, it wisely decides to dismiss a petition that should not have been granted in the first place.
Justice White, dissenting.
We granted certiorari to consider whether the Fifth Amendment bars a State from conditioning probation upon the probationer's successful completion of a therapy program in which he would be required to admit responsibility for his criminal acts. In the decision below, the Montana Supreme Court held that, "absent any grant of immunity" from prosecution for incriminating statements made during therapy, the Fifth Amendment "prohibit[s] augmenting a defendant's sentence because he refuses to confess to a crime or invokes his privilege against self-incrimination." 249 Mont. 82, 91, 813 P. 2d 979, 985 (1991). The constitutional question is an important one and the decision below places the Montana Supreme Court in conflict with other courts. See State v. Gleason, 154 Vt. 205, 576 A. 2d 1246 (1990); Henderson v.
*Indeed, counsel for the State went so far as to explain that a victory for Montana on the merits would actually work to the advantage of respondent, by subjecting him to treatment leading to parole eligibility:
"Question: So you're really trying to advance his [respondent's] interests?
"[Answer]: Yes, sir, we are. "Question: He is better off if you win than if you lose. "[Answer]: In our judgment that is certainly the case." Tr. of Oral Arg. 5.
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