McKune v. Lile, 536 U.S. 24, 47 (2002)

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70

McKUNE v. LILE

Stevens, J., dissenting

sion without the threat of prosecution looming over participants' therapy sessions.

The plurality contends that requiring immunity will undermine the therapeutic goals of the program because once "inmates know society will not punish them for their past offenses, they may be left with the false impression that society does not consider those crimes to be serious ones." Ante, at 34. See also Brief for 18 States as Amici Curiae 11 ("By subjecting offenders to prosecution for newly revealed offenses, and by adhering to its chosen policy of mandatory reporting for cases of suspected child sexual abuse, Kansas reinforces the sensible notion that wrongdoing carries consequences"). The idea that an inmate who is confined to prison for almost 20 years for an offense could be left with the impression that his crimes are not serious or that wrong-doing does not carry consequences is absurd. Moreover, the argument starts from a false premise. Granting use immunity does not preclude prosecution; it merely prevents the State from using an inmate's own words, and the fruits thereof, against him in a subsequent prosecution. New Jersey v. Portash, 440 U. S. 450, 457-458 (1979). The plurality's concern might be justified if the State were required to grant transactional immunity, but we have made clear since Kastigar that use immunity is sufficient to alleviate a potential Fifth Amendment violation, 406 U. S., at 453. Nor is a State required to grant use immunity in order to have a sex offender treatment program that involves admission of responsibility.

Alternatively, the State could continue to pursue its rehabilitative goals without violating participants' Fifth Amendment rights by offering inmates a voluntary program. The United States points out that an inmate's participation in the sexual offender treatment program operated by the Federal Bureau of Prisons is entirely voluntary. "No loss of institutional privileges flows from an inmate's decision not to par-

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