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Parallel Habeas Petitions and the Privilege Against Self-Incrimination

By Eric L. Lipman

In an interesting unpublished opinion issued today, the Minnesota Court of Appeals turned away the challenge of a prison inmate who was disciplined for refusing to participate in sex offender treatment.

At issue in the case are the limits of the Commissioner of Corrections? authority to outwardly adjust the date on which an inmate will be released from prison, as a punishment for the inmate?s earlier refusal to participate in sex offender treatment. Joe Henry Bandy-Bey, whose supervised release date was adjusted outward by 15 months for his refusal to discuss his offenses with prison therapists, argued that he could not be disciplined for such a refusal while he had a habeas corpus petition pending in federal court.

As readers of these pages will recall, precisely where the Fifth Amendment privilege against self-incrimination ends and Commissioner Fabian?s power to discipline rule-breaking inmates begins, is a vigorously disputed boundary.

Adding to the overlay of earlier decided cases, the appellate panel affirmed a lower court?s denial of Bandy-Bey?s challenge. The panel held that because there was not an appreciable risk of self-incrimination following the expiration of both Bandy-Bey?s direct appeals and the denials of two separate habeas corpus petitions. Wrote Chief Judge Toussaint for the panel:

Based on this procedural history, appellant can show even less of a likelihood of success, or a ?manifest injustice? waiting to be remedied, as expressed in this court?s Henderson opinion, than the offender in Henderson. The supreme court granted review in Henderson and reversed based on the risk of a perjury prosecution, without addressing the effect of the pendency or possibility of collateral-review proceedings. Because the supreme court did not reach that issue, or criticize this court?s reasoning on the issue, we choose to follow that reasoning for purposes of consistency. Thus, even if Minnesota courts were ultimately to hold that the Fifth Amendment privilege extends into the period of collateral review, based on this court?s Henderson opinion, appellant has not shown that the privilege would survive for him.

The panel?s complete analysis is accessible here.

Full post as published by Within the Scope on June 17, 2008 (boomark / email).