Allen v. Illinois

PETITIONER:Allen
RESPONDENT:Illinois
LOCATION:Hardwick’s Apartment

DOCKET NO.: 85-5404
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: Supreme Court of Illinois

CITATION: 478 US 364 (1986)
ARGUED: Apr 30, 1986
DECIDED: Jul 01, 1986

ADVOCATES:
Mark L. Rotert – Chicago, Illinois
Verlin R. Meinz – on behalf of the petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – April 30, 1986 in Allen v. Illinois

Warren E. Burger:

We will hear arguments first this morning in Allen against Illinois.

Mr. Meinz, you may proceed whenever you are ready.

Verlin R. Meinz:

Mr. Chief Justice, and may it please the Court, as I speak to the Court this morning, the petitioner, Terry Allen, is incarcerated in a maximum security penal institution in the State of Illinois.

He is there with persons who have been formally convicted of crime, and like them, receives the mental health treatment that is available in that facility.

The petitioner, though, has not faced trial.

The state of Illinois could have pursued traditional prosecution against him, but chose not to.

Instead, the state chose an alternative.

They sought to have him declared a sexually dangerous person under Article 105 of the Illinois Code of Criminal Procedure.

Warren E. Burger:

Is that a criminal procedure or a civil procedure?

You cite it as under the Criminal Code.

Verlin R. Meinz:

It is under the Criminal Code, Your Honor.

The statute itself carries a civil label.

We are arguing, though, that it is criminal for purposes of the Fifth Amendment.

That is our precise argument here.

Warren E. Burger:

But you concede the legislature has described this as a civil proceeding.

Verlin R. Meinz:

It has in the statute itself.

The state pursued this adjudication of Allen as a sexually dangerous person.

It conducted–

Thurgood Marshall:

Excuse me.

Did he have preponderance, or did he have reasonable doubt?

Verlin R. Meinz:

–That is the proof beyond a reasonable doubt.

The state must make its case that Allen is a sexually dangerous person beyond a reasonable doubt.

Thurgood Marshall:

Is that possible in a civil case?

Verlin R. Meinz:

That was the thrust of the decision in Statulak versus Coughlin, a Seventh Circuit case in 1975: which ruled that the proceeding, though denominated civil, was sufficiently criminal as to require the imposition of a burden beyond a reasonable doubt.

That is an opinion, by the way, upon which we rely.

Lewis F. Powell, Jr.:

Will you elaborate a little bit on the type of institution in which these persons are confined?

I think you said they were confined also with people convicted of crime.

Is it a state prison?

Verlin R. Meinz:

It is a state prison, Your Honor.

Lewis F. Powell, Jr.:

Is it indistinguishable from other prisons that do not have psychiatric cases?

Verlin R. Meinz:

It is indistinguishable in our judgment, Your Honor, from other institutions.

Indeed, it is simply a part of a larger institution, the Menard Correctional Center in Illinois.

In 1933, the Menard Psychiatric Center was set off as a separate institution.

A new wall was constructed between it and the rest of the minority correctional center.

Mental health treatment is available there.

Byron R. White:

It is a hospital.

Verlin R. Meinz:

It is a mental health treatment center.

It is not a hospital as such.

It is certainly not a mental health hospital, as one might imagine a hospital to be.

Byron R. White:

This person confined in there is just not an outpatient.

He is an inpatient.

He stays there.

Verlin R. Meinz:

He stays there.

He stays there indefinitely, Your Honor.

Byron R. White:

Are the persons in the psychiatric wing or whatever the building is segregated completely from persons in the criminal part of the structure?

Verlin R. Meinz:

No, they are not, Your Honor.

Within the Menard–

Byron R. White:

Do they dine together?

Verlin R. Meinz:

–Yes, they do.

Within the Menard Psychiatric Center–

Byron R. White:

Do the psychiatric people, are they required to occupy cells at night?

Verlin R. Meinz:

–Yes, Your Honor.

Byron R. White:

They are?

Verlin R. Meinz:

Yes, Your Honor.

Perhaps I should clarify this just a bit.

Menard Psychiatric Center houses about 300 some inmates.

About 30 to 35 of those at any one time will be sexually dangerous persons, persons adjudicated under Article 105 of the Code of Criminal Procedure in Illinois.

The remainder of the population, obviously, the majority of the population are convicted criminals, convicted felons who have been sent to the Menard Psychiatric Center for psychiatric care.

There are convicted sex offenders there who are sent to the center for the sex offender treatment program, which is also available to the sexually dangerous person.

Also sent to the Menard Psychiatric Center are inmates from other institutions, also convicted felons, who have been found to be in need of short-term psychiatric care.

William H. Rehnquist:

Mr. Meinz, do I understand from your response that Justice Marshall’s question about the burden of proof that the source of the beyond a reasonable doubt burden was not the Illinois legislature but a Court of Appeals for the Seventh Circuit decision?

Verlin R. Meinz:

Yes, Your Honor.

Originally the statute, and certainly the case law under it, specified a preponderance of the evidence standard.

That was litigated in a habeas corpus action, and in 1975 in Stachulak versus Coughlin, an opinion by Chief Judge Fairchild at that time, the Seventh Circuit ruled that there must be proof beyond a reasonable doubt.

That standard must be applied.

After that decision, the Illinois Supreme Court in People versus Pembrock also ruled, albeit independently, they said, that there was a reasonable doubt standard.

The legislature picked up the cue and incorporated a reasonable doubt standard in that legislation in its revision in 1981.

Harry A. Blackmun:

Mr. Meinz, Mr. Allen was indicted, wasn’t he?

Verlin R. Meinz:

Mr. Allen was indicted.

Harry A. Blackmun:

Is that indictment still outstanding?

Verlin R. Meinz:

Yes, it is, and it will be until such time as Mr. Allen can prove that he has recovered from the sexually dangerous person condition.

At that time, and only at that time, will the underlying charge against him be dismissed.

But it isn’t likely that he will ever be tried for that crime?

It is not likely that he will ever be tried for the crime, a crime of deviant sexual assault and–

Byron R. White:

As long as he is not cured, he won’t be tried, and when he is cured, it will be dismissed.

Verlin R. Meinz:

–That is true.

The question is, and one significant focus of our argument is that we may be talking about… we are certainly talking about an indefinite period of time before he can prove that he has recovered and before that charge is dismissed.

William J. Brennan, Jr.:

And he may never be able to prove it.

Verlin R. Meinz:

He may never be able to prove that he has recovered.

Byron R. White:

So he will be there until his death.

Verlin R. Meinz:

That is true.

Byron R. White:

Like in a civil commitment.

Verlin R. Meinz:

That is possible, except we argue there are very real distinctions.

Byron R. White:

Well, I know, but in that respect it is the same.

Verlin R. Meinz:

Yes, Your Honor, but there would be periodic review available in such a civil mental health commitment that is not available in a sexually dangerous person commitment.

The state will be obliged to come back to court time and time again to prove that the commitment to a secure institution is the least restrictive alternative placement that is appropriate for treatment.

Byron R. White:

You mean in a civil commitment.

Verlin R. Meinz:

In a civil commitment.

Byron R. White:

And here who has the burden?

Verlin R. Meinz:

The defendant… excuse me, the accused.

Verlin R. Meinz:

He is called the respondent in the proceeding.

Byron R. White:

How often can he raise the question?

Verlin R. Meinz:

He can raise the question as often as he wants and as soon as he wants upon being committed to the Menard Psychiatric Center.

He could come in within six months.

He could come in in a year.

He could come in every three months if he wanted to.

Importantly, though, at that time he has the burden of proving his entitlement to release.

He must show that he is entitled to release.

If he fails, he simply goes back to the Menard Psychiatric Center, where he has been.

Thurgood Marshall:

Is the hearing held in the institution or in the court?

Verlin R. Meinz:

In the committing court, Your Honor, the court in which he was originally found to be a sexually dangerous person, and that court must make the decision whether or not the respondent, the accused, remains a sexually dangerous person.

If I could, I would like to say just a few more words about the sexually dangerous person process.

The statutory definition I should get to first of all.

The statute defines a sexually dangerous person as a person who has a mental disorder existing for a year or more, as a person who also has criminal propensities to the commission of sex offenses, and a person who has demonstrated those propensities towards acts of sexual assault or molestation.

The Illinois Supreme Court in this case, as a matter of fact, gave us a definitive construction of the third element of that definition.

The court said that as to the third element, the demonstrated propensity, the state must show that respondent has committed at least one sexual offense.

Clearly, then, the definition involves both a mental condition and past misconduct.

A petition to have a person adjudicated a sexually dangerous person must be filed in a criminal case.

There must be an underlying criminal charge.

It is not an independent process in any way, once again, unlike the civil mental health process.

Such petition seeking SDP adjudication can only be filed by the prosecutor, not by the accused, not by the court, not by a friend or a relative on the accused’s behalf.

Only the prosecutor can trigger this SDP process.

Warren E. Burger:

Does Illinois provide for a civil commitment that might be brought by family or next friend?

Verlin R. Meinz:

Yes, it does, as does every other treatment program that I am aware of, Your Honor, in the state of Illinois.

If it is a treatment program, if it is a mental health commitment, in Illinois, then the court importantly, or any friend or relative on behalf of the accused, or the accused himself can petition for treatment.

Warren E. Burger:

So if the family became aware of the potentialities, they, the family might proceed independently of the civil action and ask that the person be committed.

Is that right?

Verlin R. Meinz:

In the civil area.

They could not do so, however, Your Honor, in a sexually dangerous person.

They could not ask to have someone adjudicated a sexually dangerous person.

Verlin R. Meinz:

Let’s assume, for example, that a friend or relative saw the accused now unfortunately charged with his third or fourth sex offense.

They said, well, he has pled guilty before, he has done this before, he did a short stretch in prison.

We need treatment.

There is a Sexually Dangerous Persons Act.

Let’s try to get him some help.

They can’t do it.

Only the prosecutor can make the decision that the accused should be adjudicated or treated as a sexually dangerous person.

Byron R. White:

Well, the issue here is the Fifth Amendment, I take it.

Verlin R. Meinz:

Yes, it is.

Yes, it is, Your Honor.

Byron R. White:

And since whether or not a psychiatrist’s opinion based on statements that he is making from the respondent is admissible?

Verlin R. Meinz:

Yes.

Byron R. White:

The statements themselves were not offered in this case.

Verlin R. Meinz:

Only part of the statements were actually admitted into evidence at the formal hearing.

Byron R. White:

The objection really is the opinions of the psychiatrist based on his statements.

Verlin R. Meinz:

Yes, Your Honor.

Byron R. White:

And you say that those opinions are inadmissible unless what?

Verlin R. Meinz:

Unless he is informed that he has a right to silence, and if he is informed of the consequences of his speaking.

Byron R. White:

Would you say he had to have a lawyer present at the time of the–

Verlin R. Meinz:

No, Your Honor.

We have made no claim–

Byron R. White:

–You say it is a criminal proceeding.

If he wants a lawyer, shouldn’t have one?

Verlin R. Meinz:

–Our claim is a narrow one.

Our claim is that this is a criminal case for purposes of the Fifth Amendment only.

Byron R. White:

And not for jury trial later?

Verlin R. Meinz:

Not for jury trial.

We are claiming no entitlement to jury trial.

By statute he is given the right to a jury trial.

Byron R. White:

Why are you claiming… what makes the Fifth Amendment so… why do you think you are entitled to the Fifth Amendment privilege, but not the jury trial?

Verlin R. Meinz:

Because this is a criminal case within the scope of the Fifth Amendment, which is construed more broadly than the criminal case provisions of the Sixth Amendment, in our judgment.

We make, once again, no claim as to an entitlement to a jury trial.

Byron R. White:

I know, but surely the Fifth Amendment can be claimed in a civil proceeding, but it can’t if it isn’t incriminating, and these statements certainly can’t be used in any criminal case, a wholly criminal case.

Verlin R. Meinz:

We believe they can, Your Honor.

Our first point, though, is that he should not have been compelled.

Byron R. White:

How could they ever be used in a criminal proceeding?

Verlin R. Meinz:

I am sorry, Your Honor.

Byron R. White:

How could they ever be used in a criminal proceeding?

Verlin R. Meinz:

After the sexually dangerous person or the person alleged to be a sexually dangerous person had spoken to a psychiatrist, and was compelled to speak for that psychiatrist, it is our judgment that the statements could thereafter be used in a criminal prosecution.

Byron R. White:

Which criminal prosecution?

Verlin R. Meinz:

If the state fails to prove beyond a reasonable doubt that a person is a sexually dangerous person, we believe that the state can return to the underlying criminal charge.

We also believe that–

Byron R. White:

It would be inadmissible then as having been compelled.

Verlin R. Meinz:

–But the state of Illinois, the Illinois Supreme Court does not give us that.

William H. Rehnquist:

The Supreme Court of Illinois said you had immunity though.

Verlin R. Meinz:

A use immunity, Your Honor.

William H. Rehnquist:

Use immunity.

Well, that is not enough?

Verlin R. Meinz:

No, Your Honor.

It is not even equivalent to the immunity that is required for a waiver of the Fifth Amendment.

It is not coextensive with the waiver of the privilege.

We need a derivative use.

As a matter of fact, in Illinois we have as a general matter a transactional immunity.

We are not given transactional immunity here.

We are not even given derivative use immunity, which is our most important point.

William H. Rehnquist:

What you say is that your client ought to have the same sort of privilege as a defendant has in a criminal case, and he can’t even be called to the stand against his will, and no amount of immunity would do him any good unless it is full transactional immunity.

Verlin R. Meinz:

We are insisting that he not be called to the stand, which under our judgment is also possible, given the ruling of the Illinois Supreme Court that he has no privilege against self-incrimination.

In our judgment, that is the only thing keeping him off the stand.

Byron R. White:

You are saying that all a defendant has to do is refuse to speak to the psychiatrist and that is the end of it.

Verlin R. Meinz:

Yes.

Byron R. White:

So for all practical purposes the state may not compel him to go through the sexually criminal proceeding.

Verlin R. Meinz:

No, Your Honor, they cannot compel him to speak to those examples.

If he chooses to speak to–

Byron R. White:

How else are they going to determine it?

Verlin R. Meinz:

–They have a great many other ways to make their case, Your Honor.

Byron R. White:

Like what?

Verlin R. Meinz:

They have to prove once again a mental condition and past misconduct.

How is past misconduct most often proved?

By reference to prior convictions which the Sexually Dangerous Person Act specifically contemplates, the introduction of other crimes evidence.

The Sexually Dangerous Persons Act contemplates the introduction of lay witnesses who have been the victims perhaps of past sexual assaults, who have been the victims of the persons–

Sandra Day O’Connor:

But how would you prove the mental condition?

Verlin R. Meinz:

–The mental condition could be derived from psychiatric observations of the defendant, of the respondent, rather, at a proceeding, or from past records, prior records of one sort or another.

William H. Rehnquist:

But that isn’t a very satisfactory way, is it?

If it is proof beyond a reasonable doubt, it strikes me that the mental condition just couldn’t be established, period.

Verlin R. Meinz:

Your Honor, my experience shows that indeed the state can and has proved a sexually dangerous person without regard, without–

Sandra Day O’Connor:

When a person being committed has refused to speak at all to the examining physician?

You have seen cases like that?

Verlin R. Meinz:

–Where the… I should point out where they emphasize where the state’s evidence emphasizes past criminal conduct of the respondent, and where the state’s case emphases the alleged underlying offense, and where the psychiatric testimony was merely a by-product was merely only another portion of the evidence that was introduced.

I have certainly seen that type of case.

In terms of the difficulty of proving, it indeed may be more difficult for the state to prove that an individual is sexually dangerous if the person within that proceeding has privilege against self-incrimination.

Byron R. White:

Under the Illinois law, must he speak to the psychiatrist?

Verlin R. Meinz:

He certainly must.

Byron R. White:

Does the law say so?

Verlin R. Meinz:

Yes, it does, the law and the case law.

Certainly the Illinois Supreme Court–

Byron R. White:

And if he refuses to speak, is he subject to contempt?

Verlin R. Meinz:

–Yes, he is.

Byron R. White:

That is clear from the law.

Verlin R. Meinz:

That is clear from the law.

A case that we have cited in brief, People versus Redlich, is in fact a contempt appeal, an appeal from a contempt proceeding–

Byron R. White:

I would think compelled testimony like that would be very difficult to get into a later purely criminal proceeding.

Verlin R. Meinz:

–Except, Your Honor, we read the Illinois Supreme Court’s decision for what it is, and what it is is a statement that the person enjoys only a use immunity, and no more.

Byron R. White:

And what is wrong with that?

Verlin R. Meinz:

I don’t believe it is coextensive with the privilege which they are requesting him to waive under Kastigar versus the United States.

It is certainly not the equivalent of the transactional immunity which he–

Byron R. White:

We haven’t insisted on that.

Verlin R. Meinz:

–Not transactional immunity.

No, Your Honor.

Derivative immunity you have.

Warren E. Burger:

We don’t have that issue before us in this case, however, its possible use in a truly criminal trial at some future date.

That is not before us now.

Verlin R. Meinz:

That is not before the Court.

Warren E. Burger:

Hasn’t Illinois, having two prongs to deal with this, given people in this unfortunate situation an opportunity to avoid a criminal conviction and a criminal record by providing a civil means of dealing with it?

Verlin R. Meinz:

We wish they had, Your Honor.

Warren E. Burger:

Well, haven’t they?

Verlin R. Meinz:

No, they haven’t.

In our judgment they haven’t.

They have certainly–

Warren E. Burger:

Well, in your judgment, but they have two statutes, two provisions.

One is civil, and one is criminal.

Verlin R. Meinz:

–Three provisions, Your Honor, We would submit.

Warren E. Burger:

Well, the underlying civil commitment.

But this is a civil proceeding here.

Verlin R. Meinz:

It is announced by the legislature to be civil.

It must be distinguished, though, from the civil mental health process.

That is Charter 91 and a half.

That is the Mental Health Code in Illinois.

This is Chapter 38, the Criminal Code.

It has two processes, formal, traditional prosecution and the sexually dangerous person proceeding.

Warren E. Burger:

Are you suggesting that that makes it a criminal case and not a civil case because of the means?

Verlin R. Meinz:

No, not the mere placement of this particular piece of legislation in the Criminal Code as opposed to the Mental Health Code or elsewhere.

We are looking at everything that is involved here, the entire process from the fact that it can only be initiated in a criminal prosecution to the point that it can only be initiated by the prosecutor, to the point that it involves a formal hearing, rules of evidence, and proof beyond a reasonable doubt that involves–

William H. Rehnquist:

How strong is your argument to include proof beyond a reasonable doubt when that was really imposed by the Seventh Circuit?

They just took a view similar to the one you are arguing here, that this proceeding was a criminal one, but that doesn’t indicate that the legislature independently would have come to that conclusion.

Verlin R. Meinz:

–The legislature has since… well, has incorporated it, yes.

William H. Rehnquist:

Yes, but it is doubtful it would have done that without the Seventh Circuit constitutional–

Verlin R. Meinz:

And the Illinois Supreme Court had done so as well without regard to Stachulak versus Coughlin on the grounds that they recognized that there were very serious consequences.

I should point out that Stachulak versus Coughlin in our judgment was well reasoned, and they took a look, the court in that case took a look at decisions of this case, two types of cases from this Court, the sexual psychopath legislation cases–

William H. Rehnquist:

–However well reasoned it may have been, I thought you were arguing that here Illinois has incorporated a number of elements into this type of case, and therefore Illinois must have intended it to be a criminal case, because it has put so many criminal protections into it, and all I am saying is that it seems to me that the argument about reasonable doubt is somewhat different because that really didn’t start with the Illinois legislature.

Verlin R. Meinz:

–That is true, Your Honor.

We are arguing that without regard to the intent of the legislature, and I would perhaps concede that the intent of the legislature… was to come up with a civil proceeding.

Byron R. White:

The Illinois Supreme Court in this case has dealt with it as a civil proceeding.

Verlin R. Meinz:

They have indeed, and that is our complaint.

Byron R. White:

Well, I know.

I know, but it certainly, even though independently it decided on a reasonable doubt standard, it doesn’t believe that the Fifth Amendment privilege is available here because it is a civil case.

Verlin R. Meinz:

And we disagree strenuously with that decision on the grounds of the sexual psychopath legislation cases and on the grounds particularly of In Re Gault.

Warren E. Burger:

In our case, Addington against Texas, that was seven or eight years ago, was that a civil case or a criminal case?

Verlin R. Meinz:

That was a civil case.

That had to do with the civil–

Warren E. Burger:

Now, didn’t we hold there that there could be an enhanced, a greater than preponderance of the evidence without altering the character of the proceeding as a civil proceeding?

Verlin R. Meinz:

–Yes.

Warren E. Burger:

Why do you… you have spent a great deal of time now arguing that because of the nature of the burden of proof there, that that makes it a criminal case, but Addington is directly contrary, is it not?

Verlin R. Meinz:

Then perhaps I have misspoken, and especially in light of Justice Rehnquist’s question.

Perhaps I have misspoken.

We do not focus particularly strongly at all on the fact that there is a burden here beyond a reasonable doubt.

We focus on other aspects of the proceeding.

We focus particularly on the commitment that is involved here, a commitment that is vastly different from the commitment that was involved in Addington versus Texas.

That is vastly different from the commitment undergone by a civil mental health committee under the Mental Health Code in Illinois.

They don’t go to Menard Psychiatric Center.

They don’t go to a maximum security penal institution like sexually dangerous persons do.

Verlin R. Meinz:

Those committees, the mental health committees, unlike the sexually dangerous person, has his situation periodically reviewed.

The SDP does not.

The state has a burden, a repeated burden to show the need for secure commitment.

There is no such process involved here.

A civil committee, one who is in a… even one in a secure institution, has a bill of rights under Illinois law.

Lewis F. Powell, Jr.:

May I ask you another question?

I still don’t understand.

If you prevail on your Fifth Amendment argument, will the proceedings that you think this Court should approve be regarded as civil or criminal?

Verlin R. Meinz:

I think, Your Honor, that–

Lewis F. Powell, Jr.:

Are you still contemplating a third type of proceeding where the party involved is a sexually dangerous person, or is so alleged?

Verlin R. Meinz:

–No, we believe that there is room for the sexually dangerous person proceeding in Illinois.

Lewis F. Powell, Jr.:

So there could be three proceedings.

Verlin R. Meinz:

There would be, in our view, three proceedings.

We believe that proceeding can exist.

We are not arguing it out of existence.

Lewis F. Powell, Jr.:

So one is criminal, one is purely civil, and the other is sort of a hybrid one in between?

Verlin R. Meinz:

Yes, but we would argue that the sexually dangerous person proceeding, while it lies between the middle of the traditional criminal prosecution and the civil mental health commitment, is skewed to one side, and is skewed very drastically toward the criminal side, and that is why we argue that the proceeding must be considered so far criminal in nature as to warrant the privilege, the application of the privilege against self-incrimination, and we urge this Court to find such privilege.

If it does, then there is no question but that the petitioner’s adjudication and commitment as a sexually dangerous person must be reversed.

Warren E. Burger:

If you prevail here, is it reasonable to assume that the state will proceed against him on a criminal charge?

Verlin R. Meinz:

They cannot proceed against Allen on a criminal charge, though they might, they might.

If this case is, the adjudication is reversed, in our judgment the state would be free to proceed against Mr. Allen in a formal criminal prosecution.

My personal guess is, they wouldn’t.

They had problems with their proof the first time around.

John Paul Stevens:

Refresh my recollection about the Sachulak case.

That case did not hold, did it, that this was a criminal proceeding?

Verlin R. Meinz:

Not in so many words, Your Honor.

It just viewed–

John Paul Stevens:

Didn’t it hold that the consequences or the stigma in the punitive consequences were severe enough to justify the proof beyond reasonable doubt standard, which also applied in the criminal case?

Verlin R. Meinz:

–Yes, Your Honor.

Thank you, Your Honor.

Warren E. Burger:

Mr. Rotert.

Mark L. Rotert:

Mr. Chief Justice, and may it please the Court, there are several points on which respondents differ significantly from the petitioner on both the facts and the law that are relevant to this particular inquiry this morning.

One of the most important differences that I would like to emphasize at the outset is that the immunity provision as provided by the Illinois Supreme Court in this very case is coextensive with the privilege against self-incrimination which the respondent to a Sexually Dangerous Persons Act should have.

There is no question that the respondent to a sexually dangerous persons proceeding has the ability to claim a Fifth Amendment privilege in any proceeding, but there is also no question that in this case the Illinois Supreme Court has immunized that person.

Nothing that Terry Allen said to any psychiatrist at any point in time can ever be used against him in any criminal prosecution for the underlying sex offenses.

The Illinois Supreme Court has made that very clear.

And this is coextensive with the Fifth Amendment privilege, and this Court has recognized that repeatedly, that transactional immunity is not what the Fifth Amendment requires.

William H. Rehnquist:

But of course his claim is that because this was so much like a criminal proceeding, it shouldn’t have been used against him in this proceeding, that he shouldn’t have been callable for any purpose, I guess.

Mark L. Rotert:

That is certainly true, Justice Rehnquist, and I think that leads us to the second major fundamental distinction between the parties, and that is the position of the state of Illinois that this is a civil statute.

It is a civil statute because the legislature that drafted it and enacted it said it was civil.

It is a civil statute because the Supreme Court of Illinois, which has had the opportunity to evaluate it, has concluded it to be civil.

And it is a civil statute because in its effect and in its purpose it does what a civil statute is designed to do.

Now, I admit that it does it in the context of due process safeguards which are often found in criminal cases, but we point out in our brief how ironic it is that the state of Illinois provides more due process safeguards to a civil proceeding and the result is that people therefore identify it as a criminal prosecution, and I think that that is the ironic result that is proffered to the Court this morning.

Thurgood Marshall:

Mr. Rotert, one point I am worried about is, at the hearing, if the judge put the respondent on the stand and asked him a question, and the guy said, I refuse to testify, what could you do about it?

Nothing.

Mark L. Rotert:

Your Honor, I believe that if the respondent to a sexually dangerous persons proceeding is put in that circumstance he faces the same options that a grand jury witness would have faced had he been given–

Thurgood Marshall:

I am not talking about grand jury.

I am talking about the proceeding in this case.

Mark L. Rotert:

–In this case.

Thurgood Marshall:

The judge put him on the stand, and asked him a question, and the respondent says, on the basis of the Fifth Amendment, I refuse to answer.

Would that be recognized?

Mark L. Rotert:

It would be recognized if he were claiming the privilege for any criminal prosecution that might result, because he can claim it at any time, but it would not be recognized if he said, I refuse to answer because I think I might be found sexually dangerous as a result of my answer, because being found sexually dangerous is not a criminal prosecution, conviction, or punishment, so it is not something that the Fifth Amendment would provide protection for.

Thurgood Marshall:

So this is a civil procedure which ends up with a jail sentence.

Mark L. Rotert:

It is a civil provision which ends up with nothing of the sort, Justice Marshall, and that is another very serious factual distinction between the parties.

The idea that this is a criminal sentence is simply not supported by the data that is before the Court.

Thurgood Marshall:

Well, it is a jail, isn’t it?

Mark L. Rotert:

It is a facility for psychiatric care–

Thurgood Marshall:

It is a jail, isn’t it–

Mark L. Rotert:

–No, Your Honor, it is–

Thurgood Marshall:

–It is not a jail?

Mark L. Rotert:

–It is not a jail.

Thurgood Marshall:

But it has bars?

Mark L. Rotert:

It has bars.

Thurgood Marshall:

And you can’t get out?

Mark L. Rotert:

You are not free to leave.

Thurgood Marshall:

And it is not a jail?

0 [Generallaughter.]

Mark L. Rotert:

Justice Marshall–

Thurgood Marshall:

It is an institution.

Mark L. Rotert:

–It is an institution.

Thurgood Marshall:

Like Sing Sing.

Mark L. Rotert:

No, Your Honor, not like Sing Sing.

0 [Generallaughter.]

Thurgood Marshall:

Well, isn’t Sing Sing an institution?

Mark L. Rotert:

There are many institutions, not all of which are like Sing Sing, Justice Marshall.

This particular institution is staffed by a psychiatrist, not by a warden.

It is staffed by mental health care professionals, not by guards.

It is an institution which does restrict the liberty of someone who is a sexually dangerous person.

Thurgood Marshall:

Don’t you eat and live with the… I mean, and exercise with the other criminal prisoners?

Mark L. Rotert:

You have the right to all the facilities available to anyone at the Menard Institution.

Thurgood Marshall:

Well, it is a criminal institution.

Mark L. Rotert:

I understand, Justice Marshall, that that is your belief, but I don’t believe that that is what you would conclude if you had an opportunity to examine all of the data.

If you had an opportunity to consider that it offers vocational and educational training, that it offers psychiatric therapy, group milieu therapy.

Thurgood Marshall:

You assume I didn’t read that?

I read all that.

Mark L. Rotert:

Mr. Justice Marshall–

Thurgood Marshall:

I read it in other places.

This is an institution that has a wall that separates two groups of people.

Mark L. Rotert:

–That’s correct.

Thurgood Marshall:

But they are all in one institution.

Mark L. Rotert:

That is not correct.

Thurgood Marshall:

Well, don’t they all eat together?

Mark L. Rotert:

The dining arrangements may well be such that they eat in the same facility–

Thurgood Marshall:

You say it may be or is true?

Mark L. Rotert:

–It is true, Justice Marshall.

Thurgood Marshall:

It is true.

Fine.

Mark L. Rotert:

But the Illinois Supreme Court has insisted years ago that the person committed under the Sexually Dangerous Persons Act is not to be kept at Menard Prison.

He is not to be treated like a prisoner at the Menard Penitentiary.

He is not to be kept down there without receiving psychiatric care.

This is something that the Illinois Supreme Court has been very insistent about.

They have said, if you treat him like he is in Menard prison, we will have a problem, but you will not so treat him.

You will provide therapy.

Thurgood Marshall:

Does the record show how many people are there?

Mark L. Rotert:

Menard Psychiatric Institute has about 30 sexually dangerous persons.

Thurgood Marshall:

How many?

Mark L. Rotert:

About 30 sexually dangerous persons respondents are there.

Thurgood Marshall:

And how many psychiatrists?

Mark L. Rotert:

I am not aware of the number of psychiatrists on staff.

I know that the director of the institutions is a psychiatrist.

Thurgood Marshall:

Is he a physical–

Mark L. Rotert:

He is an MD with a specialty in psychiatry.

I think something else that–

John Paul Stevens:

–May I ask one other question about the institution?

Mark L. Rotert:

–Please.

John Paul Stevens:

Menard, as I understand it, part of Menard is a correctional institution in the punitive sense as well as the part that is for psychiatric care.

Mark L. Rotert:

Most certainly.

John Paul Stevens:

Now, if you take the whole unit, how many inmates altogether are there?

Mark L. Rotert:

There are about 300 in the Menard Psychiatric Center at any given moment.

John Paul Stevens:

I am asking about the whole unit.

Mark L. Rotert:

The whole unit.

Justice Stevens, I don’t know the number of the population at Menard Prison.

John Paul Stevens:

That is what I was asking.

Mark L. Rotert:

But Menard Prison is one of the three major maximum security facilities in the state Department of Corrections.

It is most certainly a maximum security prison.

Is the hospital portion of Menard… I don’t know, whatever portion the 300 represents of the total, is that also under the jurisdiction of the Department of Corrections?

It is managed by the Department of Corrections Jurisdictionally.

It is staffed by psychiatrists and health care professionals.

John Paul Stevens:

And then the 300 inmates, persons, patients, whatever we call them, within that group include 30 or 35 sexually dangerous persons and another 250 or 270 other convicted felons who need psychiatric treatment.

Mark L. Rotert:

This is correct.

John Paul Stevens:

And the 35 and the 270 basically are all in the same–

Mark L. Rotert:

They intermingle.

John Paul Stevens:

–Right.

Mark L. Rotert:

They intermingle, Justice Stevens, and I think that it is important to remember that the Menard Psychiatric Institute is not warehousing these people.

It is not throwing them into cells and forgetting that they exist.

In point of fact, the American Correctional Association in 1980 made the Menard Psychiatric Institution the first state facility of its kind among the 50 states for accreditation for its psychiatric care unit.

It has been reaccredited since in 1983.

It is a place where people receive treatment from health care professionals who want to provide treatment.

I won’t deny that their liberty is restrained, but I will vigorously resist the implication that they are just… good as being in jail.

The petitioner’s own brief says at their conditions of incarcerations differ from those afforded to the convicted felons at the Menard Penitentiary.

Byron R. White:

As part of this special proceeding, must not there be proof beyond a reasonable doubt of the sex act that he had been charged with?

Justice–

Mark L. Rotert:

Yes, there is such a requirement, Justice–

Byron R. White:

–So he has been convicted of a felony in the sense that… not by a jury but by the judge.

Mark L. Rotert:

–No, I don’t believe he has been convicted of a felony even in an equivalent sense.

Byron R. White:

Well, beyond a reasonable doubt has it been proved that he committed the act?

Mark L. Rotert:

Yes, it has, Justice White.

Warren E. Burger:

Would this proof on this record be sufficient to sustain if it were admissible, if all the proof were admissible, to sustain a conviction under the criminal statute?

Mark L. Rotert:

I believe it would have been, Mr. Chief Justice.

It would have been because you had the victim stating that on a day certain a certain act occurred forcibly and against her will in the county of Peoria, and I think this brings an interesting point to bear.

Mark L. Rotert:

If that particular finding or showing were made by the prosecutor in a criminal prosecution, he would have the adequate evidence for conviction of a felony, but he wouldn’t have adequate evidence for a finding that the person is sexually dangerous.

Byron R. White:

Well, of course not.

Mark L. Rotert:

The sexually dangerous person proceeding requires more information, and as the Illinois… I am sorry.

Byron R. White:

But he nevertheless has produced evidence to show that a crime has been committed?

Mark L. Rotert:

There has to be a showing that the propensity–

Byron R. White:

Beyond a reasonable doubt.

Mark L. Rotert:

–Correct.

Byron R. White:

And then it requires a lot of other things.

Mark L. Rotert:

Correct, and I think that there has been a great deal of effort put into the idea that that element of the sexually dangerous persons finding makes it look very criminal, and I think that that is a very, very illusory argument when you consider that obviously–

Byron R. White:

It makes him much more like the other felons that he is in the hospital with.

Mark L. Rotert:

–In the sense I would concede that you put people in the Menard Psychiatric Center only after they have demonstrated that they are going to create problems because of forcible sexual conduct that they indulged in.

Byron R. White:

Well, he is there with a lot of other people who have psychiatric problems who aren’t sexually dangerous.

Mark L. Rotert:

That is true.

There are psychiatric problems that have been referred from within other institutions of the Department of Corrections, but they got there on the basis of a felony conviction.

I think it is important to understand that if the state of Illinois is going to provide treatment for the sexually dangerous person, treatment for those who commit forcible sex offenses, we have got to narrow the statute in some reasonable fashion.

We have narrowed it from the class of all citizens in Illinois, narrowed it further than the class of all citizens in Illinois to the mentally… mental problems, narrowed it further than those with mental problems of a psychosexual nature, and narrowed it down to that class of persons with psychosexual disorders who are going to act out on those disorders against others.

That narrowing process is what the statute reflects by saying that it will be an underlying criminal prosecution that will initiate these proceedings.

That is how the state’s attorney in an individual county learns that the person may well be sexually dangerous.

Sandra Day O’Connor:

Mr. Rotert, the provisions for commitment under this proceeding result in an indefinite commitment, as I understand it, without any provision for periodic review at the instance of the state, unlike your ordinary involuntary civil commitment proceeding.

Is that true?

Mark L. Rotert:

No, it is not, Justice O’Connor, and I think that is another factual matter that needs–

Sandra Day O’Connor:

Well, would you explain why that is not–

Mark L. Rotert:

–The Illinois regulations under which the Department… the Illinois regulations that the Department of Corrections had imposed on the Menard Psychiatric Institute quite specifically and unambiguously require that the director of the Institute every six months will evaluate every person there because of the sexually dangerous persons finding.

He will make a written report on that person.

He will submit that report to the committing court, to the committing county attorney, and to the attorney who represented that person as a respondent in the sexually dangerous persons proceeding.

Every six months this person’s attorney in the free society learns of that person’s progress, and the word indefinite as applied to the commitment to a sexually dangerous persons respondent, it may be a semantic difference at first, but–

Sandra Day O’Connor:

–How does it differ from what would happen with an ordinary involuntary commitment to a mental institution–

Mark L. Rotert:

–It differs–

Sandra Day O’Connor:

–for purposes of review?

Mark L. Rotert:

–It differs in factors that inure to the benefit of the respondent.

Mark L. Rotert:

It differs because he has got the right to appoint a counsel, something that a civil committee might not necessarily have.

It differs in that he has to be proven so beyond a reasonable doubt.

He has got the right to compulsory process.

Sandra Day O’Connor:

I am talking about the review mechanism only.

Could you focus on that for me and tell me how it differs, please, from that of an involuntary civil commitment of the normal type?

Mark L. Rotert:

Justice O’Connor, it differs in the sense that it is done… it doesn’t differ in the sense that there is automatic review.

That is available to the judicial and civil committee and to the sexually dangerous persons respondent.

It does differ in that a person committed civilly, under the Civil Mental Health Code, the state will bear the burden of showing by a preponderance that his continued confinement is justified.

In the Sexually Dangerous Persons Act–

Sandra Day O’Connor:

In the civil proceeding is it brought to the court and the state must prove by a preponderance that the commitment should continue?

Mark L. Rotert:

–That is correct.

Sandra Day O’Connor:

That doesn’t occur with these proceedings?

Mark L. Rotert:

In these proceedings the respondent files his petition, and he bears the burden of proving by a preponderance of the evidence.

Sandra Day O’Connor:

Do you think that difference is significant for our purposes under In Re Gault?

Mark L. Rotert:

No, I do not, Justice O’Connor, for the reason that the burden that the respondent shares in filing such a recovery application has to be evaluated in the grasp of the statute which requires that he be given all the procedural protections that we have discussed already.

That is something that is not available to the civil committee, who may be at his own in dealing with the Department of Mental Health and seeking release.

Here we have someone who has demonstrated a propensity towards highly antisocial conduct.

That is not something that is necessarily true of a civil committee.

They may be eccentric.

They may be suffering from the infirmities of age or some-other form of retardation, but they may not be any dancer.

Sandra Day O’Connor:

Well, your involuntary commitment in Illinois, is it not necessary to prove that the person is dangerous to himself or others to be involuntarily committed?

Mark L. Rotert:

The language differs significantly in that at some future time there may be some potential for problem, whereas the sexually dangerous person statute requires that there has been a demonstration within a specific time period in the recent past, and I do have a significant problem with the use of the word “indefinite” commitment.

I concede that this is indeterminate commitment.

I don’t know how it could be anything other than indeterminate commitment.

The state legislature has clearly designed this statute with the hope and the goal that treatment will be provided for those with psychosexual disorders.

It would be highly artificial for the legislature to say that an individual will be cured within a given period of time.

The fact of the matter is that Terry Allen need net spend any more time in the Department of Corrections at the Menard Psychiatric Institute than is required for him to be receiving treatment and responding favorably.

The briefs consistently talk about the requirement that Terry Allen be cured.

That’s not in the statute.

That’s not an element for his release.

Mark L. Rotert:

What is an element is that he is no longer dangerous to others in the opinion of psychiatrists.

That is the extent of the state’s interest insofar as others in society are concerned.

If he can live without being a danger to others, then the state will give him his release, and if there are doubts, the state will resolve them in his favor, give his conditional discharge, let him live in a free and unstructured environment and prove that he’s no longer a danger to others.

If the Court would look at the principal factors or the interests of society that we think we foster with the application of the Fifth Amendment and would lock to see whether they are actually fostered in the context of a Sexually Dangerous Persons Act proceeding, I believe the Court will very quickly conclude that the logical underpinnings of the Fifth Amendment itself have no application to these proceedings.

The Petitioner identifies as one of the most serious goals that’s to be achieved the enhancement of accuracy of factfinding.

How can we get note reliable and accurate diagnoses when the psychiatrist isn’t sure that he’s going to get responsive answers from the person whom he’s evaluating.

The Petitioner says that we want to be free of coercive techniques.

For almost 30 years the State of Illinois has allowed coersion in the taking of statements to be brought before a court in a Sexually Dangerous Persons proceeding and resolved pretrial.

There’s no element of coersion in this case.

Terry Allen has never said that he was the subject of coercive practice.

Terry Allen has never even said that the psychiatric data on which he was found to be sexually dangerous was less than accurate.

William H. Rehnquist:

Well, but there’s coersion in the sense that you say he may be required to testify against his will, and the Supreme Court of Illinois has said so, too, hasn’t it?

Mark L. Rotert:

There is compulsion, but as Minnesota v. Murphy teaches us, Justice Rehnquist, compulsion isn’t coersion.

William H. Rehnquist:

I see what you mean.

Okay, there is compulsion.

Mark L. Rotert:

There is compulsion.

Now, the spectre of potential abuse of the statute is raised in one of the briefs.

Well, that just doesn’t work when you look at the way the statute works.

The brief says what if we’ve got a recalcitrant witness.

The prosecutor will use this method to get rid of problem cases that he couldn’t prove criminally in the court.

Well, when we recall that the problem is going to be the same, he’s still going to have to bring in some proof that there was sexual misconduct, he’s still got to bring in some witness to testify, as Christine Ray did in this case, he’s not going to get around recalcitrant witnesses by going to a statute that requires more proof than the actual criminal felony requires.

There’s… the idea is put forth in the brief that people under 91 1/2 in Illinois, the civil commitment procedure, are admonished, but the point of the matter is that they can claim their proceeding in any proceeding, they can claim their privilege.

They don’t have counsel appointed to them.

They may well be exposing themselves to other criminal prosecutions.

That doesn’t mean that they’ve got a right to silence in the civil mental health treatment context.

It means that they’ve got the right to claim the privilege in any proceeding.

Thurgood Marshall:

Did he claim the… where did he have a right to claim the privilege here, before the psychiatrist?

Mark L. Rotert:

He had the right at all times, in any proceeding, to claim a privilege if he thought–

Thurgood Marshall:

Well, didn’t the law say out there that you are compelled under penalty of being held in contempt?

Is that or is that not the law of Illinois?

Mark L. Rotert:

–It’s not the statutory law, but it certainly would be the application of a trial court.

Thurgood Marshall:

Well, is it the law?

Mark L. Rotert:

It is the law.

Thurgood Marshall:

That if you don’t testify, you are going to be held in contempt.

Mark L. Rotert:

That’s correct, Justice Marshall.

Thurgood Marshall:

And you consider that compulsion?

Mark L. Rotert:

No, I do not, where he is immunized from criminal prosecution.

The Fifth Amendment certainly protects him against criminal prosecutions that might result from anything he said, but there is no criminal prosecution at issue here.

If the state wanted a criminal prosecution here, it could have proceeded him on two Class X felonies that led to–

Thurgood Marshall:

Well, if I for one decided that this has enough of the indicia of a criminal prosecution to require the same rules, then you’re in trouble.

Mark L. Rotert:

–If you determine that this is–

Thurgood Marshall:

Yes.

Mark L. Rotert:

–a criminal prosecution, I can see that he’s–

Thurgood Marshall:

No, I didn’t say “is”, has the indicia of a criminal prosecution.

Mark L. Rotert:

–All right.

If the Court feels that–

Thurgood Marshall:

Which is you go to jail.

Mark L. Rotert:

–If the Court feels that this is the functional equivalent of a criminal prosecution, then certainly the Fifth Amendment applies.

Thurgood Marshall:

Right.

Mark L. Rotert:

But what does the traditional criminal prosecution want to accomplish?

The two traditional aims, according to this–

Thurgood Marshall:

Not to be convicted out of his own mouth.

Mark L. Rotert:

–That’s the Fifth Amendment.

The criminal prosecution accomplishes two goals: one, retribution or punishment; two, deterrence.

The Illinois legislature could not have had either of those goals in mind when it enacted this statute, because if you are talking about punishment, the numbers in the briefs reflect that this person was… could have been subjected to a penalty of up to 60 years in prison.

As a minimum, he was going to get six years in prison.

The American Psychiatric Association reflects that the average mean time for a Sexually Dangerous Persons respondent is about 2.2 years.

Thurgood Marshall:

When you say prison, you mean the same prison that he’s in?

Mark L. Rotert:

Justice Marshall, I’m talking about the imprisonment–

Thurgood Marshall:

The same prison.

Mark L. Rotert:

–on a conviction for felony.

Thurgood Marshall:

The same prison.

Mark L. Rotert:

It’s… I understand that that’s the Court’s opinion, but it’s not the same facility, and it’s not a prison.

But in any event, the punishment aspect can’t be found here.

If the State of Illinois wants to punish Terry Allen, we have the weaponry to use in a criminal prosecution to far more severely sanction him for his conduct, and if you’re talking about the deterrent effect, if you look at DSM 3 or any psychiatric manual, you will find that the psychosexually disordered are impulsive personalities, and the idea that we’re going to deter an impulsive sex offender is inherently illogical.

This could not have been the intent of the legislature of Illinois.

The legislature showed its intent in 1955 when they amended the Sexually Dangerous Persons statute and they said that if you proceed as a county prosecutor against a person as a sexually dangerous person and he receives treatment from the psychiatrists and is discharged from custody as a sexually dangerous person, you may not proceed on the underlying indictment against him.

They couldn’t have been more clear in saying that the Sexually Dangerous Persons statute provides a treatment alternative to criminal prosecution.

If we want to punish and deter people like Terry Allen, we send thousands of people for sex offenses to the prisons every year.

But for those 30 or so people we send to the Menard Psychiatric Institute for treatment, we have the right to provide that treatment in a civil context, and the fact that we erect procedural safeguards around that civil procedure does not mean that it shall be labeled for Fifth Amendment purposes a criminal prosecution.

Sandra Day O’Connor:

Mr. Rotert, does In Re Gault provide the tests that we should employ in determining whether it should be treated as a criminal proceeding for purposes of the Fifth Amendment?

Mark L. Rotert:

I don’t believe that Gault is a particularly helpful case in this context, Justice O’Connor, for the reason that I think that Gault involved a juvenile statute, and the language of the Court involved quite clearly indicates that it considered the actual effect of the statute involved on the juvenile to be indistinguishable from a criminal effect that a person would suffer, and in Gault, for example, it was noted that an adult convicted of the same offense would have received a petty fine whereas the juvenile was subjected to incarceration until he reached the age of majority under certain circumstances.

So the Court was concerned that the apparent intent of the statute was to punish criminals, and I think that Gault is very much like Specht and some of the cases in the Petitioner’s brief where a conviction is obtained, and then there are benignly labeled treatments given contingent upon conviction as alternatives to sentencing, and if we required Terry Allen to be convicted of a sex offense before we offered this treatment, perhaps the issue in analysis would be different.

But I think here the fact that Illinois not only doesn’t proceed on the criminal prosecution but actually quashes the underlying charge removes this from the ambit–

Sandra Day O’Connor:

Well, but you do have to find the underlying criminal offense was committed.

Mark L. Rotert:

–We have to find that at one point within the past year.

For example it wasn’t necessary… if the State’s Attorney got a police report that Victim A had been molested by the Defendant, there’s nothing that requires him to bring in Victim A to show that within the past year there has been a demonstration of a sexual propensity.

He could bring in any person who would give testimony that within the past year there had been a sexual forcible misconduct.

So there isn’t this unbreakable link between the underlying criminal charge and a sexually dangerous persons finding.

There is a very inextricable and unbreakable link between sexual forcible misconduct and the filing of the petition and the finding of the petition.

If the Court analyzes every one of the interests of the Fifth Amendment that are identified by the Petitioner as those which will be promoted by application of the Fifth Amendment and then in a very logical and common sense fashion applies those goals and those ideals to the actual litigation of a Sexually Dangerous Persons Act proceeding, the Court will determine that you have taken the Fifth Amendment out of its context of applicability to a criminal prosecution and thereby undercut the efficacy and logic of the Fifth Amendment and deprived the State of Illinois of an opportunity to provide humane and enlightened treatment for people with psychosexually impulsive disorders.

Harry A. Blackmun:

Why do you say not… what do you have to say in response to your opponent’s suggestion there are other ways of proof?

Mark L. Rotert:

I think that that’s highly problematic and highly unrealistic, Justice Blackmun.

Harry A. Blackmun:

Oh, really.

Mark L. Rotert:

Yes, I do, because first of all, Terry Allen would have a constitutional right to get psychiatric examination, but where would the state be able to rebut his expert testimony?

We would fight expert testimony with lay testimony, and do you think that the witnesses for the state would be cross examined about whether they were experts?

Harry A. Blackmun:

Oh, they often prevail over psychiatric testimony.

You know that.

Mark L. Rotert:

In front of a jury with a beyond-a-reasonable-doubt standard where I’m fighting a psychiatrist with a lay person, now, who are the lay people?

Since we know that most sexual misconduct is furtive in nature, we’re not going to get a great number of witnesses to these events.

Mark L. Rotert:

We’re going to get people with obvious biases, yes, he victimized me.

Well, your bias as a witness against him is pretty patent.

Yes, he’s my son.

Your bias is very patent.

When you look at what the state would have to do, the prosecutor would be well within his discretion to say if I’m going to go through all of that trouble, I’m going to go for felony conviction, and to heck with sending him to a psychiatric institute.

The point is that you’ve placed in unnecessary fashion the Fifth Amendment in a context where it doesn’t apply and provided a disincentive for the provision for treatment.

The idea that we can use circumstantial evidence to prove something as private as a mental disorder is very, very difficult to accept.

Harry A. Blackmun:

I wouldn’t describe it all as circumstantial evidence.

Mark L. Rotert:

Well, there is direct evidence of the psychiatrist that he has examined the individual and drawn certain conclusions.

We couldn’t provide such direct evidence from a psychiatric examination.

We would have to provide secondary resources: because he did this, he must have been psychosexually disordered.

But Justice Blackmun, isn’t there also another problem that the jury is going to make less reliable findings when it doesn’t have the ability to evaluate psychiatrists from both sides?

Harry A. Blackmun:

Well, I can’t join your suffering for the State of Illinois.

Mark L. Rotert:

Well, I think that the persons who suffer here are the respondents to sexually dangerous persons proceedings.

It’s not that the State of Illinois believes that it’s being grievously wounded by this.

It’s that we don’t think we’re going to be able to continue on what we thought was an enlightened path under these circumstances.

We believe that in the long run, respondents are less likely to receive treatment and more likely to be criminally prosecuted and convicted under the analysis offered by my opponent.

It’s not a matter of us not being willing to extend the privilege.

The Supreme Court of Illinois, if the Court is familiar with the cases, the Supreme Court of Illinois has been so solicitous of the procedural and substantive rights of the sexually dangerous persons respondent, and if I’ve indicated to the Court that we’re annoyed by the application for privilege, it’s not my intent to do so.

But we fear that application of the privilege in this context will work a disservice both to the Fifth Amendment and to the people like Terry Allen.

John Paul Stevens:

May I just ask you, I suppose of course he could always waive the privilege if he wanted to to avoid that particular danger, but I notice the statute provides that he has a right to counsel at the proceeding.

If he’s unable to pay for his own lawyer, does the state provide him a lawyer?

Mark L. Rotert:

Absolutely, at the very first opportunity, Justice Stevens.

For all these reasons, I urge the Court to consider the Illinois Sexually Dangerous Persons Act to be civil, as does the General Assembly which drafted and enacted it, and as does the Supreme Court which construed it.

Based on the idea that it is a civil statute, I ask the Court to follow its own well-established precedent in determining that the Fifth Amendment privilege is not available in such a context.

Thank you.

Warren E. Burger:

Very well.

You have four minutes remaining, Mr. Meinz.

Verlin R. Meinz:

Thank you, Your Honor, and just briefly, the State argues again about the difficulty of proving a person to be a sexually dangerous person if the respondent in that proceeding is granted a privilege against self-incrimination.

They do have a burden beyond a reasonable doubt.

Verlin R. Meinz:

They have a lesser burden in a civil mental health proceeding, and yet, an individual in a civil mental health proceeding in Illinois is accorded a privilege against self-incrimination, and the State in fact in that case is obliged to prove its case by its own–

William H. Rehnquist:

Well, but they’re not accorded a privilege not to testify at all in that civil proceeding, are they?

Verlin R. Meinz:

–They are accorded a privilege that the examining psychiatrist must inform the subject of the privilege to remain silent, to refuse to speak to that examining psychiatrist, which is what we are arguing for here.

Lewis F. Powell, Jr.:

May I ask this question?

Would you rather have Terry Allen tried in a criminal case?

Verlin R. Meinz:

Absolutely, Your Honor, without question.

Lewis F. Powell, Jr.:

Absolutely not?

Verlin R. Meinz:

Absolutely I would.

Lewis F. Powell, Jr.:

Oh, you would?

Verlin R. Meinz:

I don’t… yes.

I can’t speak, and counsel has addressed the benevolence hear.

They hope to have a program like this for criminal defendants.

I speak for Allen more so than I do for other criminal defendants in Illinois, I suppose, but I know I wish that Allen had been prosecuted criminally as opposed to adjudicated–

Lewis F. Powell, Jr.:

Is that because you think he would not have been convicted?

Verlin R. Meinz:

–Because he would not have been convicted.

I have a doubt about that.

I also think he would have been out by now if he had been prosecuted criminally.

I believe he… even if he had received more than the minimum sentence, he would have a better chance of getting out.

Lewis F. Powell, Jr.:

Is this because of the facts with respect to Allen with which you are familiar or would this be a generalization?

Verlin R. Meinz:

This would be a generalization.

I should point out in that regard that the 2.2 year statistic that was cited by the State is a nationwide statistic, and that statistic simply does not reflect the average length of commitment of a sexually dangerous person in the State of Illinois.

Lewis F. Powell, Jr.:

What does the Illinois statute require in terms of maximum sentence for a criminally dangerous person, if tried?

Verlin R. Meinz:

These offenses here… and we can assume that class X felonies would be involved… would be determinant sentence of between six and thirty years, barring extreme brutality or such and such prior record.

That time of six to thirty years could be halved by day-for-day good time.

So the effective minimum here would be three years.

Lewis F. Powell, Jr.:

You would still rather have Mr. Allen run that risk?

Verlin R. Meinz:

Absolutely, Your Honor.

He would have had a privilege against self-incrimination.

He could have forced the State to make its own case.

He didn’t have that opportunity here.

Verlin R. Meinz:

Thank you, Your Honor.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.