March 20, 2017

Supreme Court upholds sex offender probation conditions

Noting that “[h]ow to manage and supervise [registered sex] offenders is one of the most difficult challenges facing government policymakers today,” the Supreme Court today upholds parts of 2010 legislation that imposes conditions the offenders must accept as prerequisites to probation.  Under that law, mandatory treatment for a sex offender includes requiring the offender to waive “any” self-incrimination privilege and psychotherapist-patient privilege, and also to participate in polygraph examinations.

The court’s opinion — in People v. Garcia — by Justice Mariano-Florentino Cuéllar explains that “any” should not be interpreted literally regarding the self-incrimination-privilege-waiver condition, so as not to run afoul of the Fifth Amendment.  The court concludes, in an anti-textualist approach to statutory construction, “The condition is properly read . . . to require that probationers answer all questions . . . fully and truthfully, with the knowledge that these compelled responses could not be used against them in a subsequent criminal proceeding.”

Although signing the court’s opinion, Justice Leondra Kruger writes a concurring opinion to “elaborate” why the condition requiring a waiver of any privilege against self-incrimination should not include an “anticipator[y] waive[r]” by offenders of the “right to object if the state later uses their answers against them in criminal proceedings.”  Justice Goodwin Liu signs only Justice Kruger’s concurrence, not the court’s opinion.

The court affirms the Sixth District Court of Appeal.

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