McKUNE, WARDEN, et al. v. LILE

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
24 OCTOBER TERM, 2001
Syllabus
McKUNE, WARDEN, et al. v. LILE
certiorari to the united states court of appeals for
the tenth circuit
No. 00–1187. Argued November 28, 2001—Decided June 10, 2002
Respondent was convicted of rape and related crimes. A few years be-
fore his scheduled release, Kansas prison officials ordered respondent to
participate in a Sexual Abuse Treatment Program (SATP). As part of
the program, participating inmates are required to complete and sign
an “Admission of Responsibility” form, in which they accept responsibil-
ity for the crimes for which they have been sentenced, and complete a
sexual history form detailing all prior sexual activities, regardless of
whether the activities constitute uncharged criminal offenses. The in-
formation obtained from SATP participants is not privileged, and might
be used against them in future criminal proceedings. There is no evi-
dence, however, that incriminating information has ever been disclosed
under the SATP. Officials informed respondent that if he refused to
participate in the SATP, his prison privileges would be reduced, result-
ing in the automatic curtailment of his visitation rights, earnings, work
opportunities, ability to send money to family, canteen expenditures,
access to a personal television, and other privileges. He also would
be transferred to a potentially more dangerous maximum-security
unit. Respondent refused to participate in the SATP on the ground
that the required disclosures of his criminal history would violate his
Fifth Amendment privilege against compelled self-incrimination. He
brought this action for injunctive relief under 42 U. S. C. § 1983. The
District Court granted him summary judgment. Affirming, the Tenth
Circuit held that the compelled self-incrimination prohibited by the
Fifth Amendment can be established by penalties that do not constitute
deprivations of protected liberty interests under the Due Process
Clause; ruled that the automatic reduction in respondent’s prison privi-
leges and housing accommodations was such a penalty because of its
substantial impact on him; declared that respondent’s information would
be sufficiently incriminating because an admission of culpability regard-
ing his crime of conviction would create a risk of a perjury prosecution;
and concluded that, although the SATP served Kansas’ important inter-
ests in rehabilitating sex offenders and promoting public safety, those
interests could be served without violating the Constitution by treating
inmate admissions as privileged or by granting inmates use immunity.
Held: The judgment is reversed, and the case is remanded.
224 F. 3d 1175, reversed and remanded.

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
25 Cite as: 536 U. S. 24 (2002)
Syllabus
Justice Kennedy, joined by The Chief Justice, Justice Scalia,
and Justice Thomas, concluded that the SATP serves a vital penologi-
cal purpose, and that offering inmates minimal incentives to participate
does not amount to compelled self-incrimination prohibited by the Fifth
Amendment. Pp. 32–48.
(a) The SATP is supported by the legitimate penological objective of
rehabilitation. The SATP lasts 18 months; involves substantial daily
counseling; and helps inmates address sexual addiction, understand the
thoughts, feelings, and behavior dynamics that precede their offenses,
and develop relapse prevention skills. Pp. 32–34.
(b) The mere fact that Kansas does not offer legal immunity from
prosecution based on statements made in the course of the SATP does
not render the program invalid. No inmate has ever been charged or
prosecuted for any offense based on such information, and there is no
contention that the program is a mere subterfuge for the conduct of
a criminal investigation. Rather, the refusal to offer use immunity
serves two legitimate state interests: (1) The potential for additional
punishment reinforces the gravity of the participants’ offenses and
thereby aids in their rehabilitation; and (2) the State confirms its valid
interest in deterrence by keeping open the option to prosecute a particu-
larly dangerous sex offender. Pp. 34–35.
(c) The SATP, and the consequences for nonparticipation in it, do not
combine to create a compulsion that encumbers the constitutional right
not to incriminate oneself. Pp. 35–47.
(1) The prison context is important in weighing respondent’s con-
stitutional claim: A broad range of choices that might infringe consti-
tutional rights in a free society fall within the expected conditions of
confinement of those lawfully convicted. The limitation on prisoners’
privileges and rights also follows from the need to grant necessary
authority and capacity to officials to administer the prisons. See, e. g.,
Turner v. Safley, 482 U. S. 78. The Court’s holding in Sandin v. Con-
ner, 515 U. S. 472, 484, that challenged prison conditions cannot give rise
to a due process violation unless they constitute “atypical and significant
hardship[s] on [inmates] in relation to the ordinary incidents of prison
life,” may not provide a precise parallel for determining whether there
is compelled self-incrimination, but does provide useful instruction. A
prison clinical rehabilitation program, which is acknowledged to bear a
rational relation to a legitimate penological objective, does not violate
the privilege against compelled self-incrimination if the adverse conse-
quences an inmate faces for not participating are related to the program
objectives and do not constitute atypical and significant hardships in
relation to the ordinary incidents of prison life. Cf., e. g., Baxter v. Pal-
migiano, 425 U. S. 308, 319–320. Pp. 35–38.

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
26 McKUNE v. LILE
Syllabus
(2) Respondent’s decision not to participate in the SATP did not
extend his prison term or affect his eligibility for good-time credits or
parole. He instead complains about his possible transfer from the
medium-security unit where the program is conducted to a less desirable
maximum-security unit. The transfer, however, is not intended to pun-
ish prisoners for exercising their Fifth Amendment rights. Rather, it
is incidental to a legitimate penological reason: Due to limited space,
inmates who do not participate in their respective programs must be
moved out of the facility where the programs are held to make room for
other inmates. The decision where to house inmates is at the core of
prison administrators’ expertise. See Meachum v. Fano, 427 U. S. 215,
225. Respondent also complains that his privileges will be reduced.
An essential tool of prison administration, however, is the authority to
offer inmates various incentives to behave. The Constitution accords
prison officials wide latitude to bestow or revoke these perquisites as
they see fit. See Hewitt v. Helms, 459 U. S. 460, 467, n. 4. Respondent
fails to cite a single case from this Court holding that the denial of
discrete prison privileges for refusal to participate in a rehabilitation
program amounts to unconstitutional compulsion. Instead, he relies on
the so-called penalty cases, see, e. g., Spevack v. Klein, 385 U. S. 511,
which involved free citizens given the choice between invoking the Fifth
Amendment privilege and sustaining their economic livelihood, see, e. g.,
id., at 516. Those cases did not involve legitimate rehabilitative pro-
grams conducted within prison walls, and they are not easily extended
to the prison context, where inmates surrender their rights to pursue a
livelihood and to contract freely with the State. Pp. 38–41.
(3) Determining what constitutes unconstitutional compulsion in-
volves a question of judgment: Courts must decide whether the conse-
quences of an inmate’s choice to remain silent are closer to the physi-
cal torture against which the Constitution clearly protects or the
de minimis harms against which it does not. The Sandin framework
provides a reasonable means of assessing whether the response of prison
administrators to correctional and rehabilitative necessities are so out
of the ordinary that one could sensibly say they rise to the level of
unconstitutional compulsion. P. 41.
(d) Prison context or not, respondent’s choice is marked less by com-
pulsion than by choices the Court has held give no rise to a self-
incrimination claim. The cost to respondent of exercising his Fifth
Amendment privilege—denial of certain perquisites that make his life
in prison more tolerable—is much less than that borne by the defendant
in, e. g., McGautha v. California, 402 U. S. 183, 217, where the Court
upheld a procedure that allowed statements made by a criminal defend-

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
27 Cite as: 536 U. S. 24 (2002)
Syllabus
ant to mitigate his responsibility and avoid the death penalty to be used
against him as evidence of his guilt. The hard choices faced by the
defendants in, e. g., Baxter v. Palmigiano, supra, at 313; Ohio Adult
Parole Authority v. Woodard, 523 U. S. 272, 287–288; and Minnesota
v. Murphy, 465 U. S. 420, 422, further illustrate that the consequences
respondent faced did not amount to unconstitutional compulsion. Re-
spondent’s attempt to distinguish the latter cases on dual grounds—that
(1) the penalty here followed automatically from his decision to remain
silent, and (2) his participation in the SATP was involuntary—is unavail-
ing. Neither distinction would justify departing from this Court’s prec-
edents. Pp. 41–45.
(e) Were respondent’s position to prevail, there would be serious
doubt about the constitutionality of the federal sex offender treatment
program, which is comparable to the Kansas program. Respondent is
mistaken as well to concentrate on a so-called reward/penalty distinc-
tion and an illusory baseline against which a change in prison conditions
must be measured. Finally, respondent’s analysis would call into ques-
tion the constitutionality of an accepted feature of federal criminal law,
the downward adjustment of a sentence for acceptance of criminal re-
sponsibility. Pp. 45–47.
Justice O’Connor acknowledged that the Court is divided on the
appropriate standard for evaluating compulsion for purposes of the
Fifth Amendment privilege against self-incrimination in a prison set-
ting, but concluded that she need not resolve this dilemma because this
case indisputably involves burdens rather than benefits, and because
the penalties assessed against respondent as a result of his failure to
participate in the Sexual Abuse Treatment Program (SATP) are not
compulsive on any reasonable test. The Fifth Amendment’s text does
not prohibit all penalties levied in response to a person’s refusal to in-
criminate himself or herself—it prohibits only the compulsion of such
testimony. The Court’s so-called “penalty cases” establish that the po-
tential loss of one’s livelihood through, e. g., the loss of employment, Uni-
formed Sanitation Men Assn., Inc. v. Commissioner of Sanitation of
City of New York, 392 U. S. 280, and the loss of the right to participate
in political associations and to hold public office, Lefkowitz v. Cunning-
ham, 431 U. S. 801, are capable of coercing incriminating testimony.
Such penalties, however, are far more significant that those facing re-
spondent: a reduction in incentive level and a corresponding transfer
from medium to maximum security. In practical terms, these changes
involve restrictions on respondent’s prison privileges and living condi-
tions that seem minor. Because the prison is responsible for caring for
respondent’s basic needs, his ability to support himself is not implicated

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
28 McKUNE v. LILE
Syllabus
by the reduction of his prison wages. While his visitation is reduced,
he still retains the ability to see his attorney, his family, and clergy.
The limitation on his possession of personal items, as well as the amount
he is allowed to spend at the canteen, may make his prison experience
more unpleasant, but seems very unlikely to actually compel him to
incriminate himself. Because it is his burden to prove compulsion, it
may be assumed that the prison is capable of controlling its inmates so
that respondent’s personal safety is not jeopardized by being placed in
maximum security, at least in the absence of proof to the contrary. Fi-
nally, the mere fact that the penalties facing respondent are the same
as those imposed for prison disciplinary violations does not make them
coercive. Thus, although the plurality’s failure to set forth a com-
prehensive theory of the Fifth Amendment privilege against self-
incrimination is troubling, its determination that the decision below
should be reversed is correct. Pp. 48–54.
Kennedy, J., announced the judgment of the Court and delivered an
opinion, in which Rehnquist, C. J., and Scalia and Thomas, JJ., joined.
O’Connor, J., filed an opinion concurring in the judgment, post, p. 48.
Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and
Breyer, JJ., joined, post, p. 54.
Stephen R. McAllister, State Solicitor of Kansas, argued
the cause for petitioners. With him on the briefs were
Carla J. Stovall, Attorney General, Jared S. Maag, and Tim-
othy G. Madden.
Gregory G. Garre argued the cause for the United States
as amicus curiae urging reversal. With him on the brief
were Solicitor General Olson, Acting Assistant Attorney
General Schiffer, Deputy Solicitor General Clement, and
Vicki Marani.
Matthew J. Wiltanger argued the cause for respondent.
With him on the brief was Paul W. Rebein.*
*A brief of amici curiae urging reversal was filed for the State of Ohio
et al. by Betty D. Montgomery, Attorney General of Ohio, David M. Gorm-
ley, State Solicitor, Todd R. Marti, Assistant Solicitor, Mike McGrath,
Attorney General of Montana, Jenifer Anders, Assistant Attorney Gen-
eral, and by the Attorneys General for their respective States as follows:
Bill Pryor of Alabama, Janet Napolitano of Arizona, Ken Salazar of Colo-
rado, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Steve

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
29 Cite as: 536 U. S. 24 (2002)
Opinion of Kennedy, J.
Justice Kennedy announced the judgment of the Court
and delivered an opinion, in which The Chief Justice, Jus-
tice Scalia, and Justice Thomas join.
Respondent Robert G. Lile is a convicted sex offender in
the custody of the Kansas Department of Corrections (De-
partment). A few years before respondent was scheduled
to reenter society, Department officials recommended that he
enter a prison treatment program so that he would not rape
again upon release. While there appears to be some differ-
ence of opinion among experts in the field, Kansas officials
and officials who administer the United States prison system
have made the determination that it is of considerable impor-
tance for the program participant to admit having committed
the crime for which he is being treated and other past of-
fenses. The first and in many ways most crucial step in the
Kansas rehabilitation program thus requires the participant
to confront his past crimes so that he can begin to under-
stand his own motivations and weaknesses. As this initial
step can be a most difficult one, Kansas offers sex offenders
incentives to participate in the program.
Respondent contends this incentive system violates his
Fifth Amendment privilege against self-incrimination.
Kansas’ rehabilitation program, however, serves a vital pe-
nological purpose, and offering inmates minimal incentives to
participate does not amount to compelled self-incrimination
prohibited by the Fifth Amendment.
I
In 1982, respondent lured a high school student into his
car as she was returning home from school. At gunpoint,
respondent forced the victim to perform oral sodomy on him
Carter of Indiana, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly
of Massachusetts, Don Stenberg of Nebraska, Frankie Sue Del Papa of
Nevada, Patricia A. Madrid of New Mexico, Charles M. Condon of South
Carolina, Mark L. Shurtleff of Utah, Randolph A. Beales of Virginia,
Christine O. Gregoire of Washington, and Gay Woodhouse of Wyoming.

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
30 McKUNE v. LILE
Opinion of Kennedy, J.
and then drove to a field where he raped her. After the
sexual assault, the victim went to her school, where, crying
and upset, she reported the crime. The police arrested re-
spondent and recovered on his person the weapon he used to
facilitate the crime. State v. Lile, 237 Kan. 210, 211–212, 699
P. 2d 456, 457–458 (1985). Although respondent maintained
that the sexual intercourse was consensual, a jury convicted
him of rape, aggravated sodomy, and aggravated kidnaping.
Both the Kansas Supreme Court and a Federal District
Court concluded that the evidence was sufficient to sustain
respondent’s conviction on all charges. See id., at 211, 699
P. 2d, at 458; 45 F. Supp. 2d 1157, 1161 (Kan. 1999).
In 1994, a few years before respondent was scheduled to
be released, prison officials ordered him to participate in
a Sexual Abuse Treatment Program (SATP). As part of
the program, participating inmates are required to complete
and sign an “Admission of Responsibility” form, in which
they discuss and accept responsibility for the crime for which
they have been sentenced. Participating inmates also are
required to complete a sexual history form, which details all
prior sexual activities, regardless of whether such activities
constitute uncharged criminal offenses. A polygraph exami-
nation is used to verify the accuracy and completeness of the
offender’s sexual history.
While information obtained from participants advances
the SATP’s rehabilitative goals, the information is not privi-
leged. Kansas leaves open the possibility that new evidence
might be used against sex offenders in future criminal pro-
ceedings. In addition, Kansas law requires the SATP staff
to report any uncharged sexual offenses involving minors to
law enforcement authorities. Although there is no evidence
that incriminating information has ever been disclosed under
the SATP, the release of information is a possibility.
Department officials informed respondent that if he re-
fused to participate in the SATP, his privilege status would
be reduced from Level III to Level I. As part of this reduc-

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
31 Cite as: 536 U. S. 24 (2002)
Opinion of Kennedy, J.
tion, respondent’s visitation rights, earnings, work opportu-
nities, ability to send money to family, canteen expenditures,
access to a personal television, and other privileges automat-
ically would be curtailed. In addition, respondent would be
transferred to a maximum-security unit, where his move-
ment would be more limited, he would be moved from a two-
person to a four-person cell, and he would be in a potentially
more dangerous environment.
Respondent refused to participate in the SATP on the
ground that the required disclosures of his criminal history
would violate his Fifth Amendment privilege against self-
incrimination. He brought this action under Rev. Stat.
§ 1979, 42 U. S. C. § 1983, against the warden and the secre-
tary of the Department, seeking an injunction to prevent
them from withdrawing his prison privileges and transfer-
ring him to a different housing unit.
After the parties completed discovery, the United States
District Court for the District of Kansas entered summary
judgment in respondent’s favor. 24 F. Supp. 2d 1152 (1998).
The District Court noted that because respondent had testi-
fied at trial that his sexual intercourse with the victim was
consensual, an acknowledgment of responsibility for the rape
on the “Admission of Guilt” form would subject respondent
to a possible charge of perjury. Id., at 1157. After review-
ing the specific loss of privileges and change in conditions
of confinement that respondent would face for refusing to
incriminate himself, the District Court concluded that these
consequences constituted coercion in violation of the Fifth
Amendment.
The Court of Appeals for the Tenth Circuit affirmed. 224
F. 3d 1175 (2000). It held that the compulsion element of a
Fifth Amendment claim can be established by penalties that
do not constitute deprivations of protected liberty interests
under the Due Process Clause. Id., at 1183. It held that
the reduction in prison privileges and housing accommoda-
tions was a penalty, both because of its substantial impact

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
32 McKUNE v. LILE
Opinion of Kennedy, J.
on the inmate and because that impact was identical to the
punishment imposed by the Department for serious discipli-
nary infractions. In the Court of Appeals’ view, the fact
that the sanction was automatic, rather than conditional, sup-
ported the conclusion that it constituted compulsion. More-
over, because all SATP files are subject to disclosure by sub-
poena, and an admission of culpability regarding the crime
of conviction would create a risk of a perjury prosecution,
the court concluded that the information disclosed by re-
spondent was sufficiently incriminating. Id., at 1180. The
Court of Appeals recognized that the Kansas policy served
the State’s important interests in rehabilitating sex offend-
ers and promoting public safety. It concluded, however,
that those interests could be served without violating the
Constitution, either by treating the admissions of the in-
mates as privileged communications or by granting inmates
use immunity. Id., at 1192.
We granted the warden’s petition for certiorari because
the Court of Appeals has held that an important Kansas
prison regulation violates the Federal Constitution. 532
U. S. 1018 (2001).
II
Sex offenders are a serious threat in this Nation. In 1995,
an estimated 355,000 rapes and sexual assaults occurred na-
tionwide. U. S. Dept. of Justice, Bureau of Justice Statistics,
Sex Offenses and Offenders 1 (1997) (hereinafter Sex Of-
fenses); U. S. Dept. of Justice, Federal Bureau of Investiga-
tion, Crime in the United States, 1999, Uniform Crime
Reports 24 (2000). Between 1980 and 1994, the population
of imprisoned sex offenders increased at a faster rate than
for any other category of violent crime. See Sex Offenses
18. As in the present case, the victims of sexual assault are
most often juveniles. In 1995, for instance, a majority of
reported forcible sexual offenses were committed against
persons under 18 years of age. University of New Hamp-
shire, Crimes Against Children Research Center, Fact Sheet
5; Sex Offenses 24. Nearly 4 in 10 imprisoned violent

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
33 Cite as: 536 U. S. 24 (2002)
Opinion of Kennedy, J.
sex offenders said their victims were 12 or younger. Id.,
at iii.
When convicted sex offenders reenter society, they are
much more likely than any other type of offender to be
rearrested for a new rape or sexual assault. See id., at 27;
U. S. Dept. of Justice, Bureau of Justice Statistics, Recidi-
vism of Prisoners Released in 1983, p. 6 (1997). States
thus have a vital interest in rehabilitating convicted sex
offenders.
Therapists and correctional officers widely agree that clini-
cal rehabilitative programs can enable sex offenders to man-
age their impulses and in this way reduce recidivism. See
U. S. Dept. of Justice, Nat. Institute of Corrections, A Prac-
titioner’s Guide to Treating the Incarcerated Male Sex Of-
fender xiii (1988) (“[T]he rate of recidivism of treated sex
offenders is fairly consistently estimated to be around 15%,”
whereas the rate of recidivism of untreated offenders has
been estimated to be as high as 80%. “Even if both of these
figures are exaggerated, there would still be a significant
difference between treated and untreated individuals”). An
important component of those rehabilitation programs re-
quires participants to confront their past and accept respon-
sibility for their misconduct. Id., at 73. “Denial is gener-
ally regarded as a main impediment to successful therapy,”
and “[t]herapists depend on offenders’ truthful descrip-
tions of events leading to past offences in order to deter-
mine which behaviours need to be targeted in therapy.”
H. Barbaree, Denial and Minimization Among Sex Offenders:
Assessment and Treatment Outcome, 3 Forum on Correc-
tions Research, No. 4, p. 30 (1991). Research indicates that
offenders who deny all allegations of sexual abuse are three
times more likely to fail in treatment than those who admit
even partial complicity. See B. Maletzky & K. McGovern,
Treating the Sexual Offender 253–255 (1991).
The critical first step in the Kansas SATP, therefore, is
acceptance of responsibility for past offenses. This gives in-
mates a basis to understand why they are being punished

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
34 McKUNE v. LILE
Opinion of Kennedy, J.
and to identify the traits that cause such a frightening and
high risk of recidivism. As part of this first step, Kansas
requires each SATP participant to complete an “Admission
of Responsibility” form, to fill out a sexual history form dis-
cussing their offending behavior, and to discuss their past
behavior in individual and group counseling sessions.
The District Court found that the Kansas SATP is a valid
“clinical rehabilitative program,” supported by a “legitimate
penological objective” in rehabilitation. 24 F. Supp. 2d,
at 1163. The SATP lasts for 18 months and involves sub-
stantial daily counseling. It helps inmates address sexual
addiction; understand the thoughts, feelings, and behavior
dynamics that precede their offenses; and develop relapse
prevention skills. Although inmates are assured of a sig-
nificant level of confidentiality, Kansas does not offer legal
immunity from prosecution based on any statements made
in the course of the SATP. According to Kansas, however,
no inmate has ever been charged or prosecuted for any of-
fense based on information disclosed during treatment.
Brief for Petitioners 4–5. There is no contention, then, that
the program is a mere subterfuge for the conduct of a crimi-
nal investigation.
As the parties explain, Kansas’ decision not to offer immu-
nity to every SATP participant serves two legitimate state
interests. First, the professionals who design and conduct
the program have concluded that for SATP participants to
accept full responsibility for their past actions, they must
accept the proposition that those actions carry consequences.
Tr. of Oral Arg. 11. Although no program participant has
ever been prosecuted or penalized based on information re-
vealed during the SATP, the potential for additional punish-
ment reinforces the gravity of the participants’ offenses and
thereby aids in their rehabilitation. If 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. The practical effect of guaran-

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
35 Cite as: 536 U. S. 24 (2002)
Opinion of Kennedy, J.
teed immunity for SATP participants would be to absolve
many sex offenders of any and all cost for their earlier
crimes. This is the precise opposite of the rehabilitative
objective.
Second, while Kansas as a rule does not prosecute inmates
based upon information revealed in the course of the pro-
gram, the State confirms its valid interest in deterrence by
keeping open the option to prosecute a particularly danger-
ous sex offender. Brief for 18 States as Amici Curiae 11.
Kansas is not alone in declining to offer blanket use immu-
nity as a condition of participation in a treatment program.
The Federal Bureau of Prisons and other States conduct sim-
ilar sex offender programs and do not offer immunity to the
participants. See, e. g., Ainsworth v. Risley, 244 F. 3d 209,
214 (CA1 2001) (describing New Hampshire’s program).
The mere fact that Kansas declines to grant inmates use
immunity does not render the SATP invalid. Asking at the
outset whether prison administrators can or should offer
immunity skips the constitutional inquiry altogether. If the
State of Kansas offered immunity, the self-incrimination
privilege would not be implicated. See, e. g., Kastigar v.
United States, 406 U. S. 441, 453 (1972); Brown v. Walker,
161 U. S. 591, 610 (1896). The State, however, does not offer
immunity. So the central question becomes whether the
State’s program, and the consequences for nonparticipation
in it, combine to create a compulsion that encumbers the con-
stitutional right. If there is compulsion, the State cannot
continue the program in its present form; and the alterna-
tives, as will be discussed, defeat the program’s objectives.
The SATP does not compel prisoners to incriminate them-
selves in violation of the Constitution. The Fifth Amend-
ment Self-Incrimination Clause, which applies to the States
via the Fourteenth Amendment, Malloy v. Hogan, 378 U. S.
1 (1964), provides that no person “shall be compelled in
any criminal case to be a witness against himself.” The
“Amendment speaks of compulsion,” United States v. Monia,

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
36 McKUNE v. LILE
Opinion of Kennedy, J.
317 U. S. 424, 427 (1943), and the Court has insisted that the
“constitutional guarantee is only that the witness not be
compelled to give self-incriminating testimony.” United
States v. Washington, 431 U. S. 181, 188 (1977). The conse-
quences in question here—a transfer to another prison
where television sets are not placed in each inmate’s cell,
where exercise facilities are not readily available, and where
work and wage opportunities are more limited—are not ones
that compel a prisoner to speak about his past crimes despite
a desire to remain silent. The fact that these consequences
are imposed on prisoners, rather than ordinary citizens,
moreover, is important in weighing respondent’s constitu-
tional claim.
The privilege against self-incrimination does not terminate
at the jailhouse door, but the fact of a valid conviction and
the ensuing restrictions on liberty are essential to the Fifth
Amendment analysis. Sandin v. Conner, 515 U. S. 472, 485
(1995) (“[L]awful incarceration brings about the necessary
withdrawal or limitation of many privileges and rights, a re-
traction justified by the considerations underlying our penal
system” (citation and internal quotation marks omitted)). A
broad range of choices that might infringe constitutional
rights in a free society fall within the expected conditions of
confinement of those who have suffered a lawful conviction.
The Court has instructed that rehabilitation is a legitimate
penological interest that must be weighed against the exer-
cise of an inmate’s liberty. See, e. g., O’Lone v. Estate of
Shabazz, 482 U. S. 342, 348, 351 (1987). Since “most offend-
ers will eventually return to society, [a] paramount objective
of the corrections system is the rehabilitation of those com-
mitted to its custody.” Pell v. Procunier, 417 U. S. 817, 823
(1974). Acceptance of responsibility in turn demonstrates
that an offender “is ready and willing to admit his crime and
to enter the correctional system in a frame of mind that af-
fords hope for success in rehabilitation over a shorter period

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
37 Cite as: 536 U. S. 24 (2002)
Opinion of Kennedy, J.
of time than might otherwise be necessary.” Brady v.
United States, 397 U. S. 742, 753 (1970).
The limitation on prisoners’ privileges and rights also fol-
lows from the need to grant necessary authority and capacity
to federal and state officials to administer the prisons. See,
e. g., Turner v. Safley, 482 U. S. 78 (1987). “Running a
prison is an inordinately difficult undertaking that requires
expertise, planning, and the commitment of resources, all
of which are peculiarly within the province of the legisla-
tive and executive branches of government.” Id., at 84–85.
To respect these imperatives, courts must exercise restraint
in supervising the minutiae of prison life. Ibid. Where, as
here, a state penal system is involved, federal courts have
“additional reason to accord deference to the appropriate
prison authorities.” Ibid.
For these reasons, the Court in Sandin held that chal-
lenged prison conditions cannot give rise to a due process
violation unless those conditions constitute “atypical and sig-
nificant hardship[s] on [inmates] in relation to the ordinary
incidents of prison life.” See 515 U. S., at 484. The deter-
mination under Sandin whether a prisoner’s liberty interest
has been curtailed may not provide a precise parallel for
determining whether there is compelled self-incrimination,
but it does provide useful instruction for answering the lat-
ter inquiry. Sandin and its counterparts underscore the
axiom that a convicted felon’s life in prison differs from that
of an ordinary citizen. In the context of a legitimate reha-
bilitation program for prisoners, those same considerations
are relevant to our analysis. The compulsion inquiry must
consider the significant restraints already inherent in prison
life and the State’s own vital interests in rehabilitation goals
and procedures within the prison system. A prison clinical
rehabilitation program, which is acknowledged to bear a ra-
tional relation to a legitimate penological objective, does not
violate the privilege against self-incrimination if the adverse

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
38 McKUNE v. LILE
Opinion of Kennedy, J.
consequences an inmate faces for not participating are re-
lated to the program objectives and do not constitute atypi-
cal and significant hardships in relation to the ordinary inci-
dents of prison life.
Along these lines, this Court has recognized that lawful
conviction and incarceration necessarily place limitations
on the exercise of a defendant’s privilege against self-
incrimination. See, e. g., Baxter v. Palmigiano, 425 U. S.
308 (1976). Baxter declined to extend to prison disciplinary
proceedings the rule of Griffin v. California, 380 U. S. 609
(1965), that the prosecution may not comment on a defend-
ant’s silence at trial. 425 U. S., at 319–320. As the Court
explained, “[d]isciplinary proceedings in state prisons . . .
involve the correctional process and important state inter-
ests other than conviction for crime.” Id., at 319. The in-
mate in Baxter no doubt felt compelled to speak in one sense
of the word. The Court, considering the level of compulsion
in light of the prison setting and the State’s interests in reha-
bilitation and orderly administration, nevertheless rejected
the inmate’s self-incrimination claim.
In the present case, respondent’s decision not to partici-
pate in the Kansas SATP did not extend his term of incarcer-
ation. Nor did his decision affect his eligibility for good-
time credits or parole. 224 F. 3d, at 1182. Respondent
instead complains that if he remains silent about his past
crimes, he will be transferred from the medium-security
unit—where the program is conducted—to a less desirable
maximum-security unit.
No one contends, however, that the transfer is intended
to punish prisoners for exercising their Fifth Amendment
rights. Rather, the limitation on these rights is incidental
to Kansas’ legitimate penological reason for the transfer:
Due to limited space, inmates who do not participate in their
respective programs will be moved out of the facility where
the programs are held to make room for other inmates. As
the Secretary of Corrections has explained, “it makes no

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
39 Cite as: 536 U. S. 24 (2002)
Opinion of Kennedy, J.
sense to have someone who’s not participating in a program
taking up a bed in a setting where someone else who may be
willing to participate in a program could occupy that bed and
participate in a program.” App. 99.
It is well settled that the decision where to house inmates
is at the core of prison administrators’ expertise. See Mea-
chum v. Fano, 427 U. S. 215, 225 (1976). For this reason the
Court has not required administrators to conduct a hearing
before transferring a prisoner to a bed in a different prison,
even if “life in one prison is much more disagreeable than in
another.” Ibid. The Court has considered the proposition
that a prisoner in a more comfortable facility might begin
to feel entitled to remain there throughout his term of incar-
ceration. The Court has concluded, nevertheless, that this
expectation “is too ephemeral and insubstantial to trigger
procedural due process protections as long as prison officials
have discretion to transfer him for whatever reason or for
no reason at all.” Id., at 228. This logic has equal force in
analyzing respodent’s self-incrimination claim.
Respondent also complains that he will be demoted from
Level III to Level I status as a result of his decision not to
participate. This demotion means the loss of his personal
television; less access to prison organizations and the gym
area; a reduction in certain pay opportunities and canteen
privileges; and restricted visitation rights. App. 27–28.
An essential tool of prison administration, however, is the
authority to offer inmates various incentives to behave.
The Constitution accords prison officials wide latitude to be-
stow or revoke these perquisites as they see fit. Accord-
ingly, Hewitt v. Helms, 459 U. S. 460, 467, n. 4 (1983), held
that an inmate’s transfer to another facility did not in itself
implicate a liberty interest, even though that transfer re-
sulted in the loss of “access to vocational, educational, recre-
ational, and rehabilitative programs.” Respondent con-
cedes that no liberty interest is implicated in this case.
Tr. of Oral Arg. 45. To be sure, cases like Meachum and

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
40 McKUNE v. LILE
Opinion of Kennedy, J.
Hewitt involved the Due Process Clause rather than the
privilege against compelled self-incrimination. Those cases
nevertheless underscore the axiom that, by virtue of their
convictions, inmates must expect significant restrictions, in-
herent in prison life, on rights and privileges free citizens
take for granted.
Respondent fails to cite a single case from this Court hold-
ing that the denial of discrete prison privileges for refusal
to participate in a rehabilitation program amounts to uncon-
stitutional compulsion. Instead, relying on the so-called
penalty cases, respondent treats the fact of his incarceration
as if it were irrelevant. See, e. g., Garrity v. New Jersey,
385 U. S. 493 (1967); Spevack v. Klein, 385 U. S. 511 (1967).
Those cases, however, involved free citizens given the choice
between invoking the Fifth Amendment privilege and sus-
taining their economic livelihood. See, e. g., id., at 516
(“[T]hreat of disbarment and the loss of professional stand-
ing, professional reputation, and of livelihood are powerful
forms of compulsion”). Those principles are not easily ex-
tended to the prison context, where inmates surrender upon
incarceration their rights to pursue a livelihood and to con-
tract freely with the State, as well as many other basic free-
doms. The persons who asserted rights in Garrity and
Spevack had not been convicted of a crime. It would come
as a surprise if Spevack stands for the proposition that when
a lawyer has been disbarred by reason of a final criminal
conviction, the court or agency considering reinstatement of
the right to practice law could not consider that the dis-
barred attorney has admitted his guilt and expressed contri-
tion. Indeed, this consideration is often given dispositive
weight by this Court itself on routine motions for reinstate-
ment. The current case is more complex, of course, in that
respondent is also required to discuss other criminal acts for
which he might still be liable for prosecution. On this point,
however, there is still a critical distinction between the
instant case and Garrity or Spevack. Unlike those cases,

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
41 Cite as: 536 U. S. 24 (2002)
Opinion of Kennedy, J.
respondent here is asked to discuss other past crimes as
part of a legitimate rehabilitative program conducted within
prison walls.
To reject out of hand these considerations would be to ig-
nore the State’s interests in offering rehabilitation programs
and providing for the efficient administration of its prisons.
There is no indication that the SATP is an elaborate attempt
to avoid the protections offered by the privilege against com-
pelled self-incrimination. Rather, the program serves an
important social purpose. It would be bitter medicine to
treat as irrelevant the State’s legitimate interests and to in-
validate the SATP on the ground that it incidentally burdens
an inmate’s right to remain silent.
Determining what constitutes unconstitutional compulsion
involves a question of judgment: Courts must decide whether
the consequences of an inmate’s choice to remain silent are
closer to the physical torture against which the Constitution
clearly protects or the de minimis harms against which it
does not. The Sandin framework provides a reasonable
means of assessing whether the response of prison adminis-
trators to correctional and rehabilitative necessities are so
out of the ordinary that one could sensibly say they rise to
the level of unconstitutional compulsion.
Prison context or not, respondent’s choice is marked less
by compulsion than by choices the Court has held give no
rise to a self-incrimination claim. The “criminal process,
like the rest of the legal system, is replete with situations
requiring the making of difficult judgments as to which
course to follow. Although a defendant may have a right,
even of constitutional dimensions, to follow whichever course
he chooses, the Constitution does not by that token always
forbid requiring him to choose.” McGautha v. California,
402 U. S. 183, 213 (1971) (citation and internal quotation
marks omitted). It is well settled that the government need
not make the exercise of the Fifth Amendment privilege cost
free. See, e. g., Jenkins v. Anderson, 447 U. S. 231, 238

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
42 McKUNE v. LILE
Opinion of Kennedy, J.
(1980) (a criminal defendant’s exercise of his Fifth Amend-
ment privilege prior to arrest may be used to impeach his
credibility at trial); Williams v. Florida, 399 U. S. 78, 84–85
(1970) (a criminal defendant may be compelled to disclose
the substance of an alibi defense prior to trial or be barred
from asserting it).
The cost to respondent of exercising his Fifth Amendment
privilege—denial of certain perquisites that make his life in
prison more tolerable—is much less than that borne by the
defendant in McGautha. There, the Court upheld a proce-
dure that allowed statements, which were made by a crimi-
nal defendant to mitigate his responsibility and avoid the
death penalty, to be used against him as evidence of his guilt.
402 U. S., at 217. The Court likewise has held that plea bar-
gaining does not violate the Fifth Amendment, even though
criminal defendants may feel considerable pressure to admit
guilt in order to obtain more lenient treatment. See, e. g.,
Bordenkircher v. Hayes, 434 U. S. 357 (1978); Brady, 397
U. S., at 751.
Nor does reducing an inmate’s prison wage and taking
away personal television and gym access pose the same hard
choice faced by the defendants in Baxter v. Palmigiano, 425
U. S. 308 (1976), Ohio Adult Parole Authority v. Woodard,
523 U. S. 272 (1998), and Minnesota v. Murphy, 465 U. S. 420
(1984). In Baxter, a state prisoner objected to the fact that
his silence at a prison disciplinary hearing would be held
against him. The Court acknowledged that Griffin v. Cali-
fornia, 380 U. S. 609 (1965), held that the Fifth Amendment
prohibits courts from instructing a criminal jury that it may
draw an inference of guilt from a defendant’s failure to tes-
tify. The Court nevertheless refused to extend the Griffin
rule to the context of state prison disciplinary hearings be-
cause those proceedings “involve the correctional process
and important state interests other than conviction for
crime.” 425 U. S., at 319. Whereas the inmate in the pres-
ent case faces the loss of certain privileges, the prisoner in

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
43 Cite as: 536 U. S. 24 (2002)
Opinion of Kennedy, J.
Baxter faced 30 days in punitive segregation as well as the
subsequent downgrade of his prison classification status.
Id., at 313.
In Murphy, the defendant feared the possibility of addi-
tional jail time as a result of his decision to remain silent.
The defendant’s probation officer knew the defendant had
committed a rape and murder unrelated to his probation.
One of the terms of the defendant’s probation required him
to be truthful with the probation officer in all matters. Seiz-
ing upon this, the officer interviewed the defendant about
the rape and murder, and the defendant admitted his guilt.
The Court found no Fifth Amendment violation, despite the
defendant’s fear of being returned to prison for 16 months if
he remained silent. 465 U. S., at 422, 438.
In Woodard, the plaintiff faced not loss of a personal televi-
sion and gym access, but loss of life. In a unanimous opinion
just four Terms ago, this Court held that a death row inmate
could be made to choose between incriminating himself at
his clemency interview and having adverse inferences drawn
from his silence. The Court reasoned that it “is difficult to
see how a voluntary interview could ‘compel’ respondent to
speak. He merely faces a choice quite similar to the sorts
of choices that a criminal defendant must make in the course
of criminal proceedings, none of which has ever been held to
violate the Fifth Amendment.” 523 U. S., at 286. As here,
the inmate in Woodard claimed to face a Hobson’s choice: He
would damage his case for clemency no matter whether he
spoke and incriminated himself, or remained silent and the
clemency board construed that silence against him. Unlike
here, the Court nevertheless concluded that the pressure the
inmate felt to speak to improve his chances of clemency did
not constitute unconstitutional compulsion. Id., at 287–288.
Woodard, Murphy, and Baxter illustrate that the con-
sequences respondent faced here did not amount to unconsti-
tutional compulsion. Respondent and the dissent attempt
to distinguish Baxter, Murphy, and Woodard on the dual

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
44 McKUNE v. LILE
Opinion of Kennedy, J.
grounds that (1) the penalty here followed automatically
from respondent’s decision to remain silent, and (2) respond-
ent’s participation in the SATP was involuntary. Neither
distinction would justify departing from this Court’s prece-
dents, and the second is question begging in any event.
It is proper to consider the nexus between remaining si-
lent and the consequences that follow. Plea bargains are not
deemed to be compelled in part because a defendant who
pleads not guilty still must be convicted. Cf. Brady, supra,
at 751–752. States may award good-time credits and early
parole for inmates who accept responsibility because silence
in these circumstances does not automatically mean the pa-
role board, which considers other factors as well, will deny
them parole. See Baxter, supra, at 317–318. While the au-
tomatic nature of the consequence may be a necessary condi-
tion to finding unconstitutional compulsion, however, that is
not a sufficient reason alone to ignore Woodard, Murphy,
and Baxter. Even if a consequence follows directly from a
person’s silence, one cannot answer the question whether the
person has been compelled to incriminate himself without
first considering the severity of the consequences.
Nor can Woodard be distinguished on the alternative
ground that respondent’s choice to participate in the SATP
was involuntary, whereas the death row inmate in Woodard
chose to participate in clemency proceedings. This distinc-
tion assumes the answer to the compulsion inquiry. If re-
spondent was not compelled to participate in the SATP, his
participation was voluntary in the only sense necessary for
our present inquiry. Kansas asks sex offenders to partici-
pate in SATP because, in light of the high rate of recidivism,
it wants all, not just the few who volunteer, to receive treat-
ment. Whether the inmates are being asked or ordered to
participate depends entirely on the consequences of their de-
cision not to do so. The parties in Woodard, Murphy, and
Baxter all were faced with ramifications far worse than re-
spondent faces here, and in each of those cases the Court

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
45 Cite as: 536 U. S. 24 (2002)
Opinion of Kennedy, J.
determined that their hard choice between silence and the
consequences was not compelled. It is beyond doubt, of
course, that respondent would prefer not to choose between
losing prison privileges and accepting responsibility for his
past crimes. It is a choice, nonetheless, that does not
amount to compulsion, and therefore one Kansas may require
respondent to make.
The Federal Government has filed an amicus brief de-
scribing its sex offender treatment program. Were re-
spondent’s position to prevail, the constitutionality of the
federal program would be cast into serious doubt. The fact
that the offender in the federal program can choose to partic-
ipate without being given a new prisoner classification is not
determinative. For, as the Government explains, its pro-
gram is conducted at a single, 112-bed facility that is more
desirable than other federal prisons. Tr. of Oral Arg. 22.
Inmates choose at the outset whether to enter the federal
program. Once accepted, however, inmates must continue
to discuss and accept responsibility for their crimes if they
wish to maintain the status quo and remain in their more
comfortable accommodations. Otherwise they will be ex-
pelled from the program and sent to a less desirable facility.
Id., at 27. Thus the federal program is different from Kan-
sas’ SATP only in that it does not require inmates to sacri-
fice privileges besides housing as a consequence of nonpartic-
ipation. The federal program is comparable to the Kansas
program because it does not offer participants use immunity
and because it conditions a desirable housing assignment on
inmates’ willingness to accept responsibility for past behav-
ior. Respondent’s theory cannot be confined in any mean-
ingful way, and state and federal courts applying that view
would have no principled means to determine whether these
similarities are sufficient to render the federal program
unconstitutional.
Respondent is mistaken as well to concentrate on the so-
called reward/penalty distinction and the illusory baseline

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
46 McKUNE v. LILE
Opinion of Kennedy, J.
against which a change in prison conditions must be meas-
ured. The answer to the question whether the government
is extending a benefit or taking away a privilege rests
entirely in the eye of the beholder. For this reason, empha-
sis of any baseline, while superficially appealing, would be
an inartful addition to an already confused area of juris-
prudence. The prison warden in this case stated that it is
largely a matter of chance where in a prison an inmate
is assigned. App. 59–63. Even if Inmates A and B are
serving the same sentence for the same crime, Inmate A
could end up in a medium-security unit and Inmate B in a
maximum-security unit based solely on administrative fac-
tors beyond their control. Under respondent’s view, how-
ever, the Constitution allows the State to offer Inmate B the
opportunity to live in the medium-security unit conditioned
on his participation in the SATP, but does not allow the State
to offer Inmate A the opportunity to live in that same
medium-security unit subject to the same conditions. The
consequences for Inmates A and B are identical: They may
participate and live in medium security or refuse and live
in maximum security. Respondent, however, would have
us say the Constitution puts Inmate A in a superior position
to Inmate B solely by the accident of the initial assignment
to a medium-security unit.
This reasoning is unsatisfactory. The Court has noted be-
fore that “[w]e doubt that a principled distinction may be
drawn between ‘enhancing’ the punishment imposed upon
the petitioner and denying him the ‘leniency’ he claims would
be appropriate if he had cooperated.” Roberts v. United
States, 445 U. S. 552, 557, n. 4 (1980). Respondent’s reason-
ing would provide States with perverse incentives to assign
all inmates convicted of sex offenses to maximum security
prisons until near the time of release, when the rehabilitation
program starts. The rule would work to the detriment of
the entire class of sex offenders who might not otherwise be
placed in maximum-security facilities. And prison adminis-

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
47 Cite as: 536 U. S. 24 (2002)
Opinion of Kennedy, J.
trators would be forced, before making routine prison hous-
ing decisions, to identify each inmate’s so-called baseline
and determine whether an adverse effect, however marginal,
will result from the administrative decision. The easy alter-
natives that respondent predicts for prison administrators
would turn out to be not so trouble free.
Respondent’s analysis also would call into question the
constitutionality of an accepted feature of federal criminal
law: the downward adjustment for acceptance of criminal
responsibility provided in § 3E1.1 of the United States Sen-
tencing Commission, Guidelines Manual (Nov. 2002). If the
Constitution does not permit the government to condition
the use of a personal television on the acceptance of responsi-
bility for past crimes, it is unclear how it could permit the
government to reduce the length of a prisoner’s term of in-
carceration based upon the same factor. By rejecting re-
spondent’s theory, we do not, in this case, call these policies
into question.
* * *
Acceptance of responsibility is the beginning of rehabilita-
tion. And a recognition that there are rewards for those
who attempt to reform is a vital and necessary step toward
completion. The Court of Appeals’ ruling would defeat
these objectives. If the State sought to comply with the
ruling by allowing respondent to enter the program while
still insisting on his innocence, there would be little incentive
for other SATP participants to confess and accept counseling;
indeed, there is support for Kansas’ view that the dynamics
of the group therapy would be impaired. If the State had
to offer immunity, the practical effect would be that serial
offenders who are incarcerated for but one violation would
be given a windfall for past bad conduct, a result potentially
destructive of any public or state support for the program
and quite at odds with the dominant goal of acceptance of
responsibility. If the State found it was forced to graduate
prisoners from its rehabilitation program without knowing

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
48 McKUNE v. LILE
O’Connor, J., concurring in judgment
what other offenses they may have committed, the integrity
of its program would be very much in doubt. If the State
found it had to comply by allowing respondent the same per-
quisites as those who accept counseling, the result would be
a dramatic illustration that obduracy has the same rewards
as acceptance, and so the program itself would become self-
defeating, even hypocritical, in the eyes of those whom
it seeks to help. The Fifth Amendment does not require the
State to suffer these programmatic disruptions when it seeks
to rehabilitate those who are incarcerated for valid, final
convictions.
The Kansas SATP represents a sensible approach to reduc-
ing the serious danger that repeat sex offenders pose to
many innocent persons, most often children. The State’s
interest in rehabilitation is undeniable. There is, further-
more, no indication that the SATP is merely an elaborate
ruse to skirt the protections of the privilege against
compelled self-incrimination. Rather, the program allows
prison administrators to provide to those who need treat-
ment the incentive to seek it.
The judgment of the Court of Appeals is reversed, and the
case is remanded for further proceedings.
It is so ordered.
Justice O’Connor, concurring in the judgment.
The Court today is divided on the question of what stand-
ard to apply when evaluating compulsion for the purposes
of the Fifth Amendment privilege against self-incrimination
in a prison setting. I write separately because, although I
agree with Justice Stevens that the Fifth Amendment
compulsion standard is broader than the “atypical and sig-
nificant hardship” standard we have adopted for evaluating
due process claims in prisons, see post, at 58–60 (dissenting
opinion) (citing Meachum v. Fano, 427 U. S. 215 (1976)), I do
not believe that the alterations in respondent’s prison condi-
tions as a result of his failure to participate in the Sexual

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
49 Cite as: 536 U. S. 24 (2002)
O’Connor, J., concurring in judgment
Abuse Treatment Program (SATP) were so great as to con-
stitute compulsion for the purposes of the Fifth Amendment
privilege against self-incrimination. I therefore agree with
the plurality that the decision below should be reversed.
The text of the Fifth Amendment does not prohibit all
penalties levied in response to a person’s refusal to incrim-
inate himself or herself—it prohibits only the compulsion
of such testimony. Not all pressure necessarily “compel[s]”
incriminating statements.
For instance, in Miranda v. Arizona, 384 U. S. 436, 455
(1966), we found that an environment of police custodial in-
terrogation was coercive enough to require prophylactic
warnings only after observing that such an environment ex-
erts a “heavy toll on individual liberty.” But we have not
required Miranda warnings during noncustodial police ques-
tioning. See, e. g., Beckwith v. United States, 425 U. S. 341
(1976). In restricting Miranda’s applicability, we have not
denied that noncustodial questioning imposes some sort of
pressure on suspects to confess to their crimes. See Oregon
v. Mathiason, 429 U. S. 492, 495 (1977) (per curiam) (“Any
interview of one suspected of a crime by a police officer will
have coercive aspects to it . . .”); Berkemer v. McCarty,
468 U. S. 420, 440 (1984) (describing the “comparatively
nonthreatening character of [noncustodial] detentions” (em-
phasis added)). Rather, as suggested by the text of the
Fifth Amendment, we have asked whether the pressure im-
posed in such situations rises to a level where it is likely
to “compe[l]” a person “to be a witness against himself.”
The same analysis applies to penalties imposed upon a per-
son as a result of the failure to incriminate himself—some
penalties are so great as to “compe[l]” such testimony, while
others do not rise to that level. Our precedents establish
that certain types of penalties are capable of coercing incrim-
inating testimony: termination of employment, Uniformed
Sanitation Men Assn., Inc. v. Commissioner of Sanitation
of City of New York, 392 U. S. 280 (1968), the loss of a profes-

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
50 McKUNE v. LILE
O’Connor, J., concurring in judgment
sional license, Spevack v. Klein, 385 U. S. 511 (1967), ineligi-
bility to receive government contracts, Lefkowitz v. Turley,
414 U. S. 70 (1973), and the loss of the right to participate in
political associations and to hold public office, Lefkowitz v.
Cunningham, 431 U. S. 801 (1977). All of these penalties,
however, are far more significant than those facing respond-
ent here.
The first three of these so-called “penalty cases” involved
the potential loss of one’s livelihood, either through the loss
of employment, loss of a professional license essential to em-
ployment, or loss of business through government contracts.
In Lefkowitz, we held that the loss of government contracts
was constitutionally equivalent to the loss of a profession
because “[a government contractor] lives off his contracting
fees just as surely as a state employee lives off his salary.”
414 U. S., at 83; contra, post, at 68, n. 11. To support oneself
in one’s chosen profession is one of the most important abili-
ties a person can have. A choice between incriminating one-
self and being deprived of one’s livelihood is the very sort of
choice that is likely to compel someone to be a witness
against himself. The choice presented in the last case, Cun-
ningham, implicated not only political influence and prestige,
but also the First Amendment right to run for office and to
participate in political associations. 431 U. S., at 807–808.
In holding that the penalties in that case constituted compul-
sion for Fifth Amendment purposes, we properly referred to
those consequences as “grave.” Id., at 807.
I do not believe the consequences facing respondent in
this case are serious enough to compel him to be a witness
against himself. These consequences involve a reduction
in incentive level, and a corresponding transfer from a
medium-security to a maximum-security part of the prison.
In practical terms, these changes involve restrictions on the
personal property respondent can keep in his cell, a reduc-
tion in his visitation privileges, a reduction in the amount of
money he can spend in the canteen, and a reduction in the

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
51 Cite as: 536 U. S. 24 (2002)
O’Connor, J., concurring in judgment
wage he can earn through prison employment. See ante,
at 30–31. These changes in living conditions seem to me
minor. Because the prison is responsible for caring for re-
spondent’s basic needs, his ability to support himself is not
implicated by the reduction in wages he would suffer as a
result. While his visitation is reduced as a result of his fail-
ure to incriminate himself, he still retains the ability to see
his attorney, his family, and members of the clergy. App.
27. The limitation on the possession of personal items, as
well as the amount that respondent is allowed to spend at
the canteen, may make his prison experience more unpleas-
ant, but seems very unlikely to actually compel him to in-
criminate himself.
Justice Stevens also suggests that the move to the
maximum-security area of the prison would itself be coer-
cive. See post, at 63–64. Although the District Court
found that moving respondent to a maximum-security sec-
tion of the prison would put him “in a more dangerous envi-
ronment occupied by more serious offenders,” 24 F. Supp. 2d
1152, 1155 (Kan. 1998), there was no finding about how great
a danger such a placement posed. Because it is respondent’s
burden to prove compulsion, we may assume that the prison
is capable of controlling its inmates so that respondent’s per-
sonal safety is not jeopardized by being placed in the
maximum-security area of the prison, at least in the absence
of proof to the contrary.
Justice Stevens argues that the fact that the penalties
facing respondent for refusal to incriminate himself are the
same as those imposed for prison disciplinary violations also
indicates that they are coercive. See post, at 62–63. I do
not agree. Insofar as Justice Stevens’ claim is that these
sanctions carry a stigma that might compel respondent to
incriminate himself, it is incorrect. Because the same sanc-
tions are also imposed on all prisoners who refuse to partici-
pate in any recommended program, App. 19–20, any stigma
attached to the reduction would be minimal. Insofar as

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
52 McKUNE v. LILE
O’Connor, J., concurring in judgment
Justice Stevens’ claim is that these sanctions are designed
to compel behavior because they are used as disciplinary
tools, it is also flawed. There is a difference between the
sorts of penalties that would give a prisoner a reason not
to violate prison disciplinary rules and what would compel
him to expose himself to criminal liability. Therefore, on
this record, I cannot conclude that respondent has shown
that his decision to incriminate himself would be compelled
by the imposition of these penalties.
Although I do not think the penalties respondent faced
were sufficiently serious to compel his testimony, I do not
agree with the suggestion in the plurality opinion that these
penalties could permissibly rise to the level of those in cases
like McGautha v. California, 402 U. S. 183 (1971) (holding
that statements made in the mitigation phase of a capital
sentencing hearing may be used as evidence of guilt), Bor-
denkircher v. Hayes, 434 U. S. 357 (1978) (holding that plea
bargaining does not violate the Fifth Amendment privilege
against self-incrimination), and Ohio Adult Parole Authority
v. Woodard, 523 U. S. 272 (1998) (holding that there is no
right to silence at a clemency interview). See ante, at 41–
43. The penalties potentially faced in these cases—longer
incarceration and execution—are far greater than those we
have already held to constitute unconstitutional compulsion
in the penalty cases. Indeed, the imposition of such out-
comes as a penalty for refusing to incriminate oneself would
surely implicate a “liberty interest.”
Justice Stevens attempts to distinguish these cases be-
cause, in each, the negative outcome did not follow directly
from the decision to remain silent, and because none of these
cases involved a direct order to testify. See post, at 60. As
the plurality’s opinion makes clear, however, these two fac-
tors do not adequately explain the difference between these
cases and the penalty cases, where we have found compul-
sion based on the imposition of penalties far less onerous.
See ante, at 43–45.

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
53 Cite as: 536 U. S. 24 (2002)
O’Connor, J., concurring in judgment
I believe the proper theory should recognize that it is gen-
erally acceptable to impose the risk of punishment, however
great, so long as the actual imposition of such punishment
is accomplished through a fair criminal process. See, e. g.,
McGautha v. California, supra, at 213 (“The criminal proc-
ess, like the rest of the legal system, is replete with situa-
tions requiring the making of difficult judgments as to which
course to follow. Although a defendant may have a right,
even of constitutional dimensions, to follow whichever course
he chooses, the Constitution does not by that token always
forbid requiring him to choose” (citation and internal quota-
tion marks omitted)). Forcing defendants to accept such
consequences seems to me very different from imposing pen-
alties for the refusal to incriminate oneself that go beyond
the criminal process and appear, starkly, as government at-
tempts to compel testimony; in the latter context, any pen-
alty that is capable of compelling a person to be a witness
against himself is illegitimate. But even this explanation of
the privilege is incomplete, as it does not fully account for
all of the Court’s precedents in this area. Compare Griffin
v. California, 380 U. S. 609 (1965) (holding that prosecutor
may not comment on a defendant’s failure to testify), with
Ohio Adult Parole Authority v. Woodard, supra (holding
that there is no right to silence at a clemency interview).
Complicating matters even further is the question of
whether the denial of benefits and the imposition of burdens
ought to be analyzed differently in this area. Compare ante,
at 45–47, with post, at 64–65. This question is particularly
important given the existence of United States Sentencing
Commission, Guidelines Manual § 3E1.1 (Nov. 2000), which
can be read to offer convicted criminals the benefit of a lower
sentence in exchange for accepting responsibility for their
crimes. See ante, at 47.
I find the plurality’s failure to set forth a comprehen-
sive theory of the Fifth Amendment privilege against self-
incrimination troubling. But because this case indisputably

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
54 McKUNE v. LILE
Stevens, J., dissenting
involves burdens rather than benefits, and because I do not
believe the penalties assessed against respondent in re-
sponse to his failure to incriminate himself are compulsive
on any reasonable test, I need not resolve this dilemma to
make my judgment in this case.
Although I do not agree that the standard for compulsion
is the same as the due process standard we identified in San-
din v. Conner, 515 U. S. 472 (1995), I join in the judgment
reached by the plurality’s opinion.
Justice Stevens, with whom Justice Souter, Justice
Ginsburg, and Justice Breyer join, dissenting.
No one could possibly disagree with the plurality’s state-
ment that “offering inmates minimal incentives to partic-
ipate [in a rehabilitation program] does not amount to
compelled self-incrimination prohibited by the Fifth Amend-
ment.” Ante, at 29. The question that this case presents,
however, is whether the State may punish an inmate’s asser-
tion of his Fifth Amendment privilege with the same manda-
tory sanction that follows a disciplinary conviction for an of-
fense such as theft, sodomy, riot, arson, or assault. Until
today the Court has never characterized a threatened harm
as “a minimal incentive.” Nor have we ever held that a per-
son who has made a valid assertion of the privilege may nev-
ertheless be ordered to incriminate himself and sanctioned
for disobeying such an order. This is truly a watershed
case.
Based on an ad hoc appraisal of the benefits of obtaining
confessions from sex offenders, balanced against the cost of
honoring a bedrock constitutional right, the plurality holds
that it is permissible to punish the assertion of the privilege
with what it views as modest sanctions, provided that those
sanctions are not given a “punitive” label. As I shall ex-
plain, the sanctions are in fact severe, but even if that were
not so, the plurality’s policy judgment does not justify the
evisceration of a constitutional right. Despite the plurality’s

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
55 Cite as: 536 U. S. 24 (2002)
Stevens, J., dissenting
meandering attempt to justify its unprecedented departure
from a rule of law that has been settled since the days of
John Marshall, I respectfully dissent.
I
The text of the Fifth Amendment provides that no person
“shall be compelled in any criminal case to be a witness
against himself.” It is well settled that the prohibition “not
only permits a person to refuse to testify against himself at
a criminal trial in which he is a defendant, but also ‘privi-
leges him not to answer official questions put to him in any
other proceeding, civil or criminal, formal or informal, where
the answers might incriminate him in future criminal pro-
ceedings.’ ” Minnesota v. Murphy, 465 U. S. 420, 426 (1984)
(quoting Lefkowitz v. Turley, 414 U. S. 70, 77 (1973)). If a
person is protected by the privilege, he may “refuse to an-
swer unless and until he is protected at least against the use
of his compelled answers and evidence derived therefrom in
any subsequent criminal case in which he is a defendant.”
Id., at 78 (citing Kastigar v. United States, 406 U. S. 441
(1972)). Prison inmates—including sex offenders—do not
forfeit the privilege at the jailhouse gate. Murphy, 465
U. S., at 426.
It is undisputed that respondent’s statements on the ad-
mission of responsibility and sexual history forms could in-
criminate him in a future prosecution for perjury or any
other offense to which he is forced to confess.1 It is also
1 As a participant in the Sexual Abuse Treatment Program (SATP),
respondent would be required to sign an “Admission of Responsibility”
form setting forth the details of the offense for which he was convicted.
Because he had testified at trial that his sexual intercourse with the vic-
tim before driving her back to her car was consensual, the District
Court found that a written admission on this form would subject respond-
ent to a possible charge of perjury. 24 F. Supp. 2d 1152, 1157 (Kan. 1998).
In addition, the SATP requires participants to “generate a written sex-
ual history which includes all prior sexual activities, regardless of
whether such activities constitute uncharged criminal offenses.” Id., at

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
56 McKUNE v. LILE
Stevens, J., dissenting
clear that he invoked his Fifth Amendment right by refusing
to participate in the SATP on the ground that he would be
required to incriminate himself. Once he asserted that
right, the State could have offered respondent immunity
from the use of his statements in a subsequent prosecution.
Instead, the Kansas Department of Corrections (Depart-
ment) ordered respondent either to incriminate himself or to
lose his medium-security status. In my opinion that order,
coupled with the threatened revocation of respondent’s Level
III privileges, unquestionably violated his Fifth Amend-
ment rights.
Putting to one side the plurality’s evaluation of the policy
judgments made by Kansas, its central submission is that
the threatened withdrawal of respondent’s Level III and
medium-security status is not sufficiently harmful to qualify
as unconstitutional compulsion. In support of this position,
neither the plurality nor Justice O’Connor cites a single
Fifth Amendment case in which a person invoked the privi-
lege and was nevertheless required to answer a potentially
incriminating question.2
The privilege against self-incrimination may have been
born of the rack and the Star Chamber, see L. Levy, Origins
of the Fifth Amendment 42 (I. Dee ed. 1999); Andresen v.
Maryland, 427 U. S. 463, 470 (1976), but the Framers had a
1155. The District Court found that the form “clearly seeks information
that could incriminate the prisoner and subject him to further criminal
charges.” Id., at 1157.
2 Petitioners relied on two cases, Fisher v. United States, 425 U. S. 391
(1976), and United States v. Washington, 431 U. S. 181, 187–188 (1977). In
Fisher, we held that the privilege does not permit the target of a criminal
investigation to prevent his lawyer from answering a subpoena to produce
incriminating documents. We reached that conclusion because the person
asserting the privilege was not the one being compelled. In Washington,
cited ante, at 36, a grand jury witness voluntarily answered questions
after being advised of the privilege, though not of the fact that he was a
potential defendant in danger of being indicted. In neither case did the
witness assert the privilege against incriminating himself.

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
57 Cite as: 536 U. S. 24 (2002)
Stevens, J., dissenting
broader view of compulsion in mind when they drafted the
Fifth Amendment.3 We know, for example, that the privi-
lege was thought to protect defendants from the moral com-
pulsion associated with any statement made under oath.4 In
addition, the language of the Amendment, which focuses on
a courtroom setting in which a defendant or a witness in a
criminal trial invokes the privilege, encompasses the compul-
sion inherent in any judicial order overruling an assertion of
the privilege. As Chief Justice Marshall observed in United
States v. Burr, 25 F. Cas. 38, 40 (No. 14,692e) (CC Va. 1807):
“If, in such a case, he say upon his oath that his answer
would incriminate himself, the court can demand no other
testimony of the fact.”
Our holding in Malloy v. Hogan, 378 U. S. 1 (1964), that
the privilege applies to the States through the Fourteenth
Amendment, determined that the right to remain silent is
itself a liberty interest protected by that Amendment. We
explained that “[t]he Fourteenth Amendment secures against
state invasion the same privilege that the Fifth Amendment
guarantees against federal infringement—the right of a per-
son to remain silent unless he chooses to speak in the unfet-
tered exercise of his own will, and to suffer no penalty . . .
3 The origins and evolution of the privilege have received significant
scholarly attention and debate in recent years. See, e. g., Hazlett, Nine-
teenth Century Origins of the Fifth Amendment Privilege Against Self-
Incrimination, 42 Am. J. Legal Hist. 235 (1998); Amar & Lettow, Fifth
Amendment First Principles: The Self-Incrimination Clause, 93 Mich. L.
Rev. 857 (1995). The historical account is complicated by the fact that
before Boyd v. United States, 116 U. S. 616 (1886), the privilege was
treated as a common-law evidentiary doctrine separate from the Fifth
Amendment. During that time, the privilege was also subsumed within
general discussions of the voluntariness of confessions.
4 Alschuler, A Peculiar Privilege in Historical Perspective, in The Privi-
lege Against Self-Incrimination 181, 192–193 (R. Helmholz et al. eds. 1997)
(discussing historical sources which indicate that the “privilege prohibited
(1) incriminating interrogation under oath, (2) torture, and (3) probably
other forms of coercive interrogation such as threats of future punishment
and promises of leniency” (footnotes omitted)).

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
58 McKUNE v. LILE
Stevens, J., dissenting
for such silence.” Id., at 8 (emphasis added). Since Malloy,
we have construed the text to prohibit not only direct orders
to testify, but also indirect compulsion effected by comments
on a defendant’s refusal to take the stand, Griffin v. Califor-
nia, 380 U. S. 609, 613–614 (1965), and we have recognized
that compulsion can be presumed from the circumstances
surrounding custodial interrogation, see Dickerson v. United
States, 530 U. S. 428, 435 (2000) (“[T]he coercion inherent in
custodial interrogation blurs the line between voluntary and
involuntary statements, and thus heightens the risk that an
individual will not be ‘accorded his privilege under the Fifth
Amendment . . . not to be compelled to incriminate himself ’ ”)
(quoting Miranda v. Arizona, 384 U. S. 436, 439 (1966)).
Without requiring the deprivation of any other liberty inter-
est, we have found prohibited compulsion in the threatened
loss of the right to participate in political associations,
Lefkowitz v. Cunningham, 431 U. S. 801 (1977), forfeiture
of government contracts, Turley, 414 U. S., at 82, loss of em-
ployment, Uniformed Sanitation Men Assn., Inc. v. Com-
missioner of Sanitation of City of New York, 392 U. S. 280
(1968), and disbarment, Spevack v. Klein, 385 U. S. 511, 516
(1967). None of our opinions contains any suggestion that
compulsion should have a different meaning in the prison
context. Nor is there any support in our Fifth Amendment
jurisprudence for the proposition that nothing short of losing
one’s livelihood is sufficient to constitute compulsion. Ac-
cord, Turley, 414 U. S., at 83.
The plurality’s suggestion that our decision in Meachum
v. Fano, 427 U. S. 215 (1976), supports a novel interpretation
of the Fifth Amendment, see ante, at 39, is inconsistent with
the central rationale of that case. In Meachum, a group of
prison inmates urged the Court to hold that the Due Process
Clause entitled them to a hearing prior to their transfer
to a substantially less favorable facility. Relying on the
groundbreaking decisions in Morrissey v. Brewer, 408 U. S.
471 (1972), and Wolff v. McDonnell, 418 U. S. 539 (1974),

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
59 Cite as: 536 U. S. 24 (2002)
Stevens, J., dissenting
which had rejected the once-prevailing view that a prison
inmate had no more rights than a “slave of the State,” 5 the
prisoners sought to extend those holdings to require judicial
review of “any substantial deprivation imposed by prison
authorities.” The Court recognized that after Wolff and
its progeny, convicted felons retain “a variety of important
rights that the courts must be alert to protect.” Although
Meachum refused to expand the constitutional rights of in-
mates, we did not narrow the protection of any established
right. Indeed, Justice White explicitly limited the holding
to prison conditions that “do not otherwise violate the Con-
stitution,” 427 U. S., at 224.6
Not a word in our discussion of the privilege in Ohio Adult
Parole Authority v. Woodard, 523 U. S. 272 (1998), ante, at
43, requires a heightened showing of compulsion in the
prison context to establish a Fifth Amendment violation.
That case is wholly unlike this one because Woodard was
not ordered to incriminate himself and was not punished for
refusing to do so. He challenged Ohio’s clemency proce-
dures, arguing, inter alia, that an interview with members
of the clemency board offered to inmates one week before
their clemency hearing presented him with a Hobson’s choice
that violated the privilege against self-incrimination. He
could either take advantage of the interview and risk incrim-
inating himself, or decline the interview, in which case the
clemency board might draw adverse inferences from his deci-
sion not to testify. We concluded that the prisoner who was
offered “a voluntary interview” is in the same position as
5 See Meachum v. Fano, 427 U. S. 215, 231 (1976) (Stevens, J.,
dissenting).
6 In his opinion for the Court in the companion case, Montanye v.
Haymes, 427 U. S. 236, 242 (1976), Justice White reiterated this point: “As
long as the conditions or degree of confinement to which the prisoner is
subjected are within the sentence imposed upon him and [are] not other-
wise violative of the Constitution, the Due Process Clause does not in itself
subject an inmate’s treatment by prison authorities to judicial oversight.”

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
60 McKUNE v. LILE
Stevens, J., dissenting
any defendant faced with the option of either testifying or
accepting the risk that adverse inferences may be drawn
from his silence. 523 U. S., at 286.
Respondent was directly ordered by prison authorities to
participate in a program that requires incriminating disclo-
sures, whereas no one ordered Woodard to do anything.
Like a direct judicial order to answer questions in the court-
room, an order from the State to participate in the SATP is
inherently coercive. Cf. Turley, 414 U. S., at 82 (“The
waiver sought by the State, under threat of loss of contracts,
would have been no less compelled than a direct request for
the testimony without resort to the waiver”). Moreover,
the penalty for refusing to participate in the SATP is auto-
matic. Instead of conjecture and speculation about the indi-
rect consequences that may flow from a decision to remain
silent, we can be sure that defiance of a direct order carries
with it the stigma of being a lawbreaker or a problem inmate,
as well as other specified penalties. The penalty involved in
this case is a mandated official response to the assertion of
the privilege.
In Baxter v. Palmigiano, 425 U. S. 308 (1976), ante, at
42–43, we held that a prison disciplinary proceeding did not
violate the privilege, in part, because the State had not
“insisted [nor] asked that Palmigiano waive his Fifth
Amendment privilege,” and it was “undisputed that an in-
mate’s silence in and of itself [was] insufficient to support an
adverse decision by the Disciplinary Board.” 425 U. S., at
317–318. We distinguished the “penalty cases,” Garrity v.
New Jersey, 385 U. S. 493 (1967), and Turley, not because
they involved civilians as opposed to prisoners, as the plu-
rality assumes, ante, at 40, but because in those cases the
“refusal to submit to interrogation and to waive the Fifth
Amendment privilege, standing alone and without regard to
other evidence, resulted in loss of employment or opportu-
nity to contract with the State,” whereas Palmigiano’s si-
lence “was given no more evidentiary value than was war-

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
61 Cite as: 536 U. S. 24 (2002)
Stevens, J., dissenting
ranted by the facts surrounding his case.” 425 U. S., at 318
(emphasis added). And, in a subsequent “penalty” case, we
distinguished Baxter on the ground that refusing to incrimi-
nate oneself “was only one of a number of factors to be con-
sidered by the finder of fact in assessing a penalty, and was
given no more probative value than the facts of the case war-
ranted,” while in Cunningham “refusal to waive the Fifth
Amendment privilege [led] automatically and without more
to imposition of sanctions.” 431 U. S., at 808, n. 5.
Similarly, in Minnesota v. Murphy, 465 U. S., at 438, 439,
while “the State could not constitutionally carry out a threat
to revoke probation for the legitimate exercise of the Fifth
Amendment privilege,” because revocation was not auto-
matic under the Minnesota statute, we concluded that “Mur-
phy could not reasonably have feared that the assertion of
the privilege would have led to revocation.” 7 These deci-
sions recognized that there is an appreciable difference be-
tween an official sanction for disobeying a direct order and a
mere risk of adverse consequences stemming from a volun-
tary choice. The distinction is not a novel one, nor is it sim-
ply offered to “justify departing from this Court’s prece-
dents,” ante, at 44. Rather it is a distinction that we have
drawn throughout our cases; therefore, it is the plurality’s
7 The plurality is quite wrong to rely on Murphy for the proposition that
an individual is not compelled to incriminate himself when faced with the
threat of return to prison. Ante, at 43. In Murphy, we did not have
occasion to decide whether such a threat constituted compulsion because
we held that “since Murphy revealed incriminating information instead of
timely asserting his Fifth Amendment privilege, his disclosures were not
compelled incriminations.” 465 U. S., at 440. As we explained, “a wit-
ness confronted with questions that the government should reasonably
expect to elicit incriminating evidence ordinarily must assert the privilege
rather than answer if he desires not to incriminate himself. . . . But if
he chooses to answer, his choice is considered to be voluntary since he
was free to claim the privilege and would suffer no penalty as the result
of his decision to do so.” Id., at 429. In contrast to Murphy, respondent
has consistently asserted his Fifth Amendment privilege.

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
62 McKUNE v. LILE
Stevens, J., dissenting
disregard for both factors that represents an unjustified de-
parture. Unlike Woodard, Murphy, and Baxter, respondent
cannot invoke his Fifth Amendment rights and then gamble
on whether the Department will revoke his Level III status;
the punishment is mandatory. The fact that this case in-
volves a prison inmate, as did Woodard and Baxter, is not
enough to render those decisions controlling authority.
Since we have already said inmates do not forfeit their Fifth
Amendment rights at the jailhouse gate, Murphy, 465 U. S.,
at 426, the plurality must point to something beyond re-
spondent’s status as a prisoner to justify its departure from
our precedent.
II
The plurality and Justice O’Connor hold that the conse-
quences stemming from respondent’s invocation of the privi-
lege are not serious enough to constitute compulsion. The
threat of transfer to Level I and a maximum-security unit
is not sufficiently coercive in their view—either because
the consequence is not really a penalty, just the loss of a
benefit, or because it is a penalty, but an insignificant one.
I strongly disagree.
It took respondent several years to acquire the status that
he occupied in 1994 when he was ordered to participate in
the SATP. Because of the nature of his convictions, in 1983
the Department initially placed him in a maximum-security
classification. Not until 1989 did the Department change his
“security classification to ‘medium by exception’ because of
his good behavior.” Lile v. Simmons, 23 Kan. App. 2d 1, 2,
929 P. 2d 171, 172 (1996). Thus, the sanction at issue threat-
ens to deprive respondent of a status in the prison commu-
nity that it took him six years to earn and which he had
successfully maintained for five more years when he was or-
dered to incriminate himself. Moreover, abruptly “busting”
his custody back to Level I, App. 94, would impose the same
stigma on him as would a disciplinary conviction for any of
the most serious offenses described in petitioners’ formal

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
63 Cite as: 536 U. S. 24 (2002)
Stevens, J., dissenting
statement of Internal Management Policy and Procedure
(IMPP). As the District Court found, the sanctions imposed
on respondent “mirror the consequences imposed for serious
disciplinary infractions.” 24 F. Supp. 2d 1152, 1155 (Kan.
1998). This same loss of privileges is considered serious
enough by prison authorities that it is used as punishment
for theft, drug abuse, assault, and possession of dangerous
contraband.8
The punitive consequences of the discipline include not
only the dignitary and reputational harms flowing from the
transfer, but a serious loss of tangible privileges as well.
Because he refused to participate in the SATP, respondent’s
visitation rights will be restricted. He will be able to earn
only $0.60 per day, as compared to Level III inmates, who
can potentially earn minimum wage. His access to prison
organizations and activities will be limited. He will no
longer be able to send his family more than $30 per pay pe-
riod. He will be prohibited from spending more than $20
per payroll period at the canteen, rather than the $140 he
could spend at Level III, and he will be restricted in what
property he can keep in his cell. App. 27–28. In addition,
because he will be transferred to a maximum-security unit,
respondent will be forced to share a cell with three other
8 IMPP 11–101 provides that an inmate “shall be automatically reduced
to Level I for any of the following: (1) Termination from a work or pro-
gram assignment for cause; (2) Refusal to participate in recommended
programs at the time of placement; (3) Offenses committed in which a
felony charge is filed with the district or county prosecutor; (4) Discipli-
nary convictions for: (a) Theft; (b) Being in a condition of drunkenness,
intoxication, or a state of altered consciousness; (c) Use of stimulants,
sedatives, unauthorized drugs, or narcotics, or the misuse, or hoarding of
authorized or prescribed medication; (d) Sodomy, aggravated sodomy, or
aggravated sexual act; (e) Riot or incitement to riot; (f) Arson; (g) Assault;
(h) Battery; (i) Inmate Activity (limitations); ( j) Sexual Activity;
(k) Interference with Restraints; (l) Relationships with Staff; (m) Work
Performance; or (n) Dangerous Contraband.” App. 19–20 (citations
omitted).

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
64 McKUNE v. LILE
Stevens, J., dissenting
inmates rather than one, and his movement outside the cell
will be substantially curtailed. Id., at 73, 83. The District
Court found that the maximum-security unit is “a more dan-
gerous environment occupied by more serious offenders.”
24 F. Supp. 2d, at 1155.9 Perhaps most importantly, re-
spondent will no longer be able to earn his way back up to
Level III status through good behavior during the remain-
der of his sentence. App. 17 (“To complete Level I, an in-
mate must . . . demonstrate a willingness to participate in
recommended programs and/or work assignments for a full
review cycle”).
The plurality’s glib attempt to characterize these conse-
quences as a loss of potential benefits rather than a penalty
is wholly unpersuasive. The threatened transfer to Level I
and to a maximum-security unit represents a significant,
adverse change from the status quo. Respondent achieved
his medium-security status after six years of good behavior
and maintained that status during five more years. During
that time, an inmate unquestionably develops settled expec-
tations regarding the conditions of his confinement. These
conditions then form the baseline against which any change
must be measured, and rescinding them now surely consti-
tutes punishment.
Paying attention to the baseline is not just “superficially
appealing,” ante, at 46. We have recognized that the gov-
9 Respondent attested to the fact that in his experience maximum secu-
rity “is a very hostile, intimidating environment because most of the in-
mates in maximum tend to have longer sentences and are convicted of
more serious crimes, and, as a consequence, care less how they act or treat
others.” Id., at 41–42. He explained that in the maximum-security unit
“there is far more gang activity,” “reported and unreported rapes and
assaults of inmates are far more prevalent,” and “sex offenders . . . are
seen as targets for rape and physical and mental assault[s],” whereas in
medium security, “because the inmates want to maintain their medium
security status, they are less prone to breaking prison rules or acting
violently.” Id., at 42–43.

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
65 Cite as: 536 U. S. 24 (2002)
Stevens, J., dissenting
ernment can extend a benefit in exchange for incriminating
statements, see Woodard, 523 U. S., at 288 (“[T]his pressure
to speak in the hope of improving [one’s] chance of being
granted clemency does not make the interview compelled”),
but cannot threaten to take away privileges as the cost of
invoking Fifth Amendment rights, see, e. g., Turley, 414
U. S., at 82; Spevack, 385 U. S., at 516. Based on this dis-
tinction, nothing that I say in this dissent calls into question
the constitutionality of downward adjustments for accept-
ance of responsibility under the United States Sentencing
Guidelines, ante, at 47. Although such a reduction in sen-
tence creates a powerful incentive for defendants to confess,
it completely avoids the constitutional issue that would be
presented if the Guidelines operated like the scheme here
and authorized an upward adjustment whenever a defendant
refused to accept responsibility. Similarly, taking into ac-
count an attorney’s acceptance of responsibility or contrition
in deciding whether to reinstate his membership to the bar
of this Court, see ante, at 40, is obviously different from dis-
barring an attorney for invoking his privilege. By obscur-
ing the distinction between penalties and incentives, it is the
plurality that calls into question both the Guidelines and plea
bargaining. See Corbitt v. New Jersey, 439 U. S. 212, 223–
224 (1978) (“Nor does this record indicate that he was being
punished for exercising a constitutional right. . . . [H]omicide
defendants who are willing to plead non vult may be treated
more leniently than those who go to trial, but withholding
the possibility of leniency from the latter cannot be equated
with impermissible punishment as long as our cases sustain-
ing plea bargaining remain undisturbed”).10
10 The plurality quotes a footnote in Roberts v. United States, 445 U. S.
552 (1980), for the proposition that a principled distinction cannot be
drawn between enhancing punishment and denying leniency, ante, at 46.
This quote is misleading because, as in Minnesota v. Murphy, 465 U. S.
420 (1984), see n. 7, supra, Roberts failed to assert his privilege against

536US1 Unit: $U58 [12-16-03 19:15:41] PAGES PGT: OPIN
66 McKUNE v. LILE
Stevens, J., dissenting
Even if the change in respondent’s status could properly
be characterized as a loss of benefits to which he had no
entitlement, the question at hand is not whether the Depart-
ment could have refused to extend those benefits in the first
place, but rather whether revoking them at this point consti-
tutes a penalty for asserting the Fifth Amendment privilege.
See Perry v. Sindermann, 408 U. S. 593, 597 (1972). The
plurality contends that the transfer from medium to maxi-
mum security and the associated loss of Level III status is
not intended to punish prisoners for asserting their Fifth
Amendment rights, but rather is merely incidental to the
prison’s legitimate interest in making room for participants
self-incrimination, and we reiterated that the privilege is not self-
executing, 445 U. S., at 559. Furthermore, the passage quoted by the plu-
rality, id., at 557, n. 4, was in reference to Roberts’ claim that the sentenc-
ing judge could not consider his refusal to incriminate a co-conspirator in
deciding whether to impose his sentences consecutively. In that context,
the privilege is not implicated and compulsion is not constitutionally sig-
nificant. While it is true that in some cases the line between enhancing
punishment and refusing leniency may be difficult to draw, that does not
mean the distinction is irrelevant for Fifth Amendment purposes.
It is curious that the plurality asserts the impracticality of drawing such
a distinction, given that in this case a majority of the Court agrees that it
is perfectly clear the consequences facing respondent represent a burden,
rather than the denial of a benefit. Ante, at 53–54 (O’Connor, J., concur-
ring in judgment). Our cases reveal that it is not only possible, but neces-
sary to draw the distinction. For even Bordenkircher v. Hayes, 434 U. S.
357 (1978), conditioned its entire analysis of plea bargaining on the as-
sumption that the defendant had been charged with the greater offense
prior to plea bargaining and, therefore, faced the denial of leniency rather
than an enhanced penalty. Id., at 360–361 (“While the prosecutor did not
actually obtain the recidivist indictment until after the plea conferences
had ended, his intention to do so was clearly expressed at the outset of
plea negotiations. . . . This is not a situation, therefore, where the prosecu-
tor without notice brought an additional and more serious charge after
plea negotiations relating only to the original indictment had ended with
the defendant’s insistence on pleading not guilty. As a practical matter,
in short, this case would be no different if the grand jury had indicted [the
defendant] as a recidivist from the outset, and the prosecutor had offered
to drop that charge as part of the plea bargain”).

536US1 Unit: $U58 [12-16-03 19:15:42] PAGES PGT: OPIN
67 Cite as: 536 U. S. 24 (2002)
Stevens, J., dissenting
in the program. Ante, at 38. Of course, the Department
could still house participants together without moving those
who refuse to participate to more restrictive conditions of
confinement and taking away their privileges. Moreover,
petitioners have not alleged that respondent is taking up a
bed in a unit devoted to the SATP; therefore, all the Depart-
ment would have to do is allow respondent to stay in his
current medium-security cell. If need be, the Department
could always transfer respondent to another medium-
security unit. Given the absence of evidence in the record
that the Department has a shortage of medium-security
beds, or even that there is a separate unit devoted to partici-
pants in the SATP, the only plausible explanation for the
transfer to maximum security and loss of Level III status is
that it serves as punishment for refusing to participate in
the program.
Justice O’Connor recognizes that the transfer is a pen-
alty, but finds insufficient coercion because the “changes in
[respondent’s] living conditions seem to [her] minor.” Ante,
at 51 (opinion concurring in judgment). The coerciveness of
the penalty in this case must be measured not by comparing
the quality of life in a prison environment with that in a free
society, but rather by the contrast between the favored and
disfavored classes of prisoners. It is obviously impossible to
measure precisely the significance of the difference between
being housed in a four-person, maximum-security cell in the
most dangerous area of the prison, on the one hand, and hav-
ing a key to one’s own room, the right to take a shower, and
the ability to move freely within adjacent areas during cer-
tain hours, on the other—or to fully appreciate the impor-
tance of visitation privileges, being able to send more than
$30 per pay period to family, having access to the yard for
exercise, and the opportunity to participate in group activi-
ties. What is perfectly clear, however, is that it is the ag-
gregate effect of those penalties that creates compulsion.
Nor is it coincidental that petitioners have selected this same

536US1 Unit: $U58 [12-16-03 19:15:42] PAGES PGT: OPIN
68 McKUNE v. LILE
Stevens, J., dissenting
group of sanctions as the punishment to be imposed for the
most serious violations of prison rules. Considering these
consequences as a whole and comparing the Department’s
treatment of respondent to the rest of the prison population,
it is perfectly clear that the penalty imposed is “constitution-
ally indistinguishable from the coercive provisions we struck
down in Gardner, Sanitation Men, and Turley.” Cunning-
ham, 431 U. S., at 807.11
III
The SATP clearly serves legitimate therapeutic purposes.
The goal of the program is to rehabilitate sex offenders, and
the requirement that participants complete admission of re-
sponsibility and sexual history forms may well be an impor-
tant component of that process. Mental health professionals
seem to agree that accepting responsibility for past sexual
misconduct is often essential to successful treatment, and
that treatment programs can reduce the risk of recidivism
by sex offenders. See Winn, Strategic and Systematic Man-
agement of Denial in Cognitive/Behavioral Treatment of
Sexual Offenders, 8 Sexual Abuse: J. Research and Treat-
ment 25, 26–27 (1996).
The program’s laudable goals, however, do not justify re-
duced constitutional protection for those ordered to partici-
pate. “We have already rejected the notion that citizens
may be forced to incriminate themselves because it serves
a governmental need.” Cunningham, 431 U. S., at 808.
11 Justice O’Connor would distinguish these cases because the penalty
involved the loss of one’s livelihood, whereas here respondent will be
housed, clothed, and fed regardless of whether he is in maximum or me-
dium security. We rejected a similar argument in Turley, when we re-
fused to distinguish Gardner v. Broderick, 392 U. S. 273 (1968), and Uni-
formed Sanitation Men Assn., Inc. v. Commissioner of Sanitation of City
of New York, 392 U. S. 280 (1968), based on the difference between losing
one’s job and losing the ability to obtain government contracts. 414 U. S.,
at 83. We concluded that there was no “difference of constitutional mag-
nitude between the threat of job loss to an employee of the State, and a
threat of loss of contracts to a contractor.” Ibid.

536US1 Unit: $U58 [12-16-03 19:15:42] PAGES PGT: OPIN
69 Cite as: 536 U. S. 24 (2002)
Stevens, J., dissenting
The benefits of obtaining confessions from sex offenders may
be substantial, but “claims of overriding interests are not
unusual in Fifth Amendment litigation,” and until today at
least “they have not fared well.” Turley, 414 U. S., at 78.
The State’s interests in law enforcement and rehabilitation
are present in every criminal case. If those interests were
sufficient to justify impinging on prisoners’ Fifth Amend-
ment right, inmates would soon have no privilege left to
invoke.
The plurality’s willingness to sacrifice prisoners’ Fifth
Amendment rights is also unwarranted because available al-
ternatives would allow the State to achieve the same objec-
tives without impinging on inmates’ privilege. Turner v.
Safley, 482 U. S. 78, 93 (1987). The most obvious alternative
is to grant participants use immunity. See Murphy, 465
U. S., at 436, n. 7 (“[A] State may validly insist on answers
to even incriminating questions . . . as long as it recognizes
that the required answers may not be used in a criminal
proceeding and thus eliminates the threat of incrimination”);
Baxter, 425 U. S., at 318 (“Had the State desired Palmigiano’s
testimony over his Fifth Amendment objection, we can but
assume that it would have extended whatever use immunity
is required by the Federal Constitution”). Petitioners have
not provided any evidence that the program’s therapeutic
aims could not be served equally well by granting use immu-
nity. Participants would still obtain all the therapeutic ben-
efits of accepting responsibility and admitting past miscon-
duct; they simply would not incriminate themselves in the
process. At least one State already offers such protection,
see Ky. Rev. Stat. Ann. § 197.440 (West 2001) (“Communica-
tions made in the application for or in the course of a sexual
offender’s diagnosis and treatment . . . shall be privileged
from disclosure in any civil or criminal proceeding”), and
there is no indication that its choice is incompatible with
rehabilitation. In fact, the program’s rehabilitative goals
would likely be furthered by ensuring free and open discus-

536US1 Unit: $U58 [12-16-03 19:15:42] PAGES PGT: OPIN
70 McKUNE v. LILE
Stevens, J., dissenting
sion without the threat of prosecution looming over partici-
pants’ therapy sessions.
The plurality contends that requiring immunity will un-
dermine 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 con-
sequences”). 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 Jer-
sey 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 Kas-
tigar that use immunity is sufficient to alleviate a poten-
tial 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 reha-
bilitative goals without violating participants’ Fifth Amend-
ment 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 institu-
tional privileges flows from an inmate’s decision not to par-

536US1 Unit: $U58 [12-16-03 19:15:42] PAGES PGT: OPIN
71 Cite as: 536 U. S. 24 (2002)
Stevens, J., dissenting
ticipate in the program.” 12 If an inmate chooses to partici-
pate in the federal program, he will be transferred from his
“parent facility” to a “more desirable” prison, but if he re-
fuses to participate in the first place, as respondent at-
tempted to do, he suffers no negative consequences. Tr. of
Oral Arg. 21–22. Although the inmates in the federal pro-
gram are not granted use immunity, they are not compelled
to participate. Indeed, there is reason to believe successful
rehabilitation is more likely for voluntary participants than
for those who are compelled to accept treatment. See Abel,
Mittelman, Becker, Rathner, & Rouleau, Predicting Child
Molesters’ Response to Treatment, 528 Annals N. Y. Acad. of
Sciences 223 (1988) (finding that greater perceived pressure
to participate in treatment is strongly correlated with the
dropout rate).
Through its treatment program, Kansas seeks to achieve
the admirable goal of reducing recidivism among sex offend-
ers. In the process, however, the State demands an imper-
missible and unwarranted sacrifice from the participants.
No matter what the goal, inmates should not be compelled
to forfeit the privilege against self-incrimination simply be-
cause the ends are legitimate or because they have been con-
victed of sex offenses. Particularly in a case like this one,
in which respondent has protested his innocence all along
and is being compelled to confess to a crime that he still
insists he did not commit, we ought to ask ourselves—what
if this is one of those rare cases in which the jury made a
12 Brief for United States as Amicus Curiae 27. Because of this mate-
rial difference between the Kansas and federal programs, recognizing the
compulsion in this case would not cast any doubt on the validity of volun-
tary programs. The plurality asserts that “the federal program is differ-
ent from Kansas’ SATP only in that it does not require inmates to sacrifice
privileges besides housing as a consequence of nonparticipation.” Ante,
at 45 (emphasis added). This statement is inaccurate because, as the
quote in the text reveals, no loss of privileges follows from the decision
not to participate in the federal program.

536US1 Unit: $U58 [12-16-03 19:15:42] PAGES PGT: OPIN
72 McKUNE v. LILE
Stevens, J., dissenting
mistake and he is actually innocent? And in answering that
question, we should consider that even members of the Star
Chamber thought they were pursuing righteous ends.
I respectfully dissent.