Adios, Fifth Amendment

July 2002

You do not have the right to remain silent. Anything you say– and anything we imagine you are thinking– can and will be used against you. If you can’t afford a lawyer, it doesn’t matter since you do not have the right to speak to an attorney.

Thus says a five-to-four majority of the US Supreme Court in McCune v. Lile.

In earlier decisions, the same court majority has sanctioned incarcerating people not charged with any crime (thus voiding habeas corpus protections), has authorized further punishment for those who’ve served all their time (thereby nullifying protections against double jeopardy), and endorsed laws that punish people for actions that were legal at the time committed (hence invalidating protections against ex post facto laws).

And with their ruling in McCune v. Lile, the high court finishes eviscerating the Fifth Amendment by allowing the government to force confessions from those convicted of sex crimes.

Robert G. Lile, convicted of rape, was told by Kansas prison officials that unless he participated in a “Sexual Abuse Treatment Program” (SATP) he would not be able to have visitors, hold a job, or access canteen privileges. Additionally, he would– despite his exemplary disciplinary record– be moved to a maximum security facility. Both he and prison officials knew the transfer would mean harsher conditions and a greater likelihood that Lile would be hurt or killed since as a sex offender, he would occupy the lowest position in prison hierarchy.

As part of his SATP “treatment,” Lile would be compelled to list all his sex crimes, name all participants, and submit to polygraph review of his answers by ill-trained prison officials. The information he thus provided could be used to charge him, and others, with yet more sex offenses. Lile (who has always maintained he’s innocent of the crime charged) refused, citing his Fifth Amendment right against self-incrimination.

Though the language of the Fifth Amendment is unambiguous (“No person shall be… compelled in any criminal case to be a witness against himself…”), a five-person Court majority upheld Kansas’s coercion, asserting that the state wasn’t threatening to punish Lile for not participating in their SATP, only to “help” him if he did.

This is, of course, the rationale of all torturers. From the Spanish Inquisition to the Star Chamber, those in power argue that prisoners can avoid the rack or thumbscrews or forfeiture of property simply by cooperating. Like their predecessors, Kansas officials see their mission as just, and blame any “loss of privileges” on prisoners’ failure to tell them what they want to hear.

Our founding fathers recognized that “confess, or be punished” is a “choice” offered only by tyrannical regimes. Thus, the Bill of Rights enshrines freedom from torture in the Fifth Amendment.

But as the current Supreme Court majority has taught us in the last decade, constitutional protections are not for those accused of sex crimes. Thus, Robert G. Lile, and all those similarly situated, can either be locked away from all visitors, with no job or television or distractions, unable to access even the smallest items of comfort, surrounded by violent criminals routinely vowing to maim or kill them– or submit to barbaric procedures euphemistically called treatment. (Such “treatment” is likely to include sniffing noxious chemicals to induce vomiting while listening to verboten sex fantasies, being hooked up to penis cuffs to measure arousal, and required reporting of bunkmates’ masturbatory practices. No such program has been shown to lower recidivism rates among released sex offenders, meaning Kansas and the Supreme Court are voiding the Constitution for a program which they know does not work, even by their own measure.)

Sexual hysteria so cripples our culture that it is hard to imagine how civil liberties lost today will ever be restored. But the Bill of Rights has endured previous assaults. As gay people, let us dedicate ourselves to hastening the day when the Court’s odious decisions will be rescinded and their authors seen as the fear-mongering despots they are.

Pasted from <http://guidemag.com/magcontent/invokemagcontent.cfm?ID=D60B8D03-C46C-4D83-86AF9A4FE95BC772>