David, J.
In this case, a parolee convicted of a sex crime against an adult female challenges a number of his parole conditions, including several that prohibit him from having contact with children—even his own. He also challenges the constitutionality of a state treatment program for sex offenders that he must participate in as part of his parole, claiming that under the program he is required to provide self-incriminating statements about his underlying offense and sexual history without immunity and under the threat of being found in violation of his parole.
We conclude that some of his parole conditions are impermissible on several grounds, but find no fault with the remainder. We likewise find no constitutional flaw in the state treatment program.
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Conditions 4, 5, 17, 19, and 20, which we have laid out above, are all broadly aimed at restricting Bleeke from being near, communicating with, or associating with, children (and, until the injunction became permanent, from being near, communicating with, or associating with, his own children). Bleeke argues that there is no evidence whatsoever that he poses a risk to any minor, and that these conditions therefore are not reasonably related to his successful reintegration into the community.
We agree with Bleeke. None of the evidence presented at his individualized hearing or designated before the trial court in support of—or in opposition to—his motion for summary judgment indicates that Bleeke is, was, or will be a threat to children—either his own or otherwise. In fact, the evidence uncontrovertibly shows the opposite: that Bleeke is affirmatively not a threat to children, nor is he likely to be. The Parole Board’s only evidence to the contrary apparently consisted of a general study of cross-over offenders. But we note, as the Court of Appeals did, that the study itself was not made part of the record on appeal. Bleeke, 982 N.E.2d at 1049. This makes it impossible to assess whether the study raises a genuine issue of material fact as to the likelihood of Bleeke himself crossing over from an adult victim to a child victim. [Footnote omitted.]
The Parole Board points to Jackson v. State, 816 N.E.2d 868 (Ind. Ct. App. 2004), and argues that similar conditions (assigned as terms of a defendant’s probation) were upheld as being reasonably related to the defendant’s rehabilitation and protecting the community. We first note that probation conditions are a matter of discretion afforded to the trial court, and are conditions assigned—as part of the judiciary’s function in setting sentences—in lieu of imprisonment. . . . .
Bleeke’s conditions of parole, however, are a function of the executive (i.e., the Parole Board, in imposing given conditions and probation officers in enforcing them) and the legislature (i.e., the General Assembly’s codification of statutes governing what those conditions may be), and must be carried out when an offender has completed a shortened portion of an imposed sentence. And under those functions and that statutory structure, additional parole conditions like those at issue here must be “reasonably related to the parolee’s successful reintegration into the community and not unduly restrictive of a fundamental right.” In other words, considerations of “public safety” or “protecting the community,” standing alone, cannot save a parole condition that fails to meet one of the two statutory requirements found in Ind. Code § 11-13-3-4(b). Thus, to the extent the probation conditions in Jackson were reasonably related to public safety and that relation justified their imposition, such analysis is inapplicable here.
Moreover, the defendant in Jackson challenged probation conditions prohibiting contact with persons under the age of eighteen and dating relationships with persons who have minor children—but he was convicted of raping a nineteen-year-old woman in front of her two-year-old son. Jackson, 816 N.E.2d at 871. That the Court of Appeals would affirm those conditions in light of the nature of Jackson’s crime is not surprising, as they were tailored towards preventing such a circumstance or environment from arising again. But for that same reason, Jackson is not persuasive here, where Bleeke’s conviction was for attempted criminal deviate conduct in which his victim was an adult woman, over the age of twenty-one, and the conduct occurred while the two were alone after meeting in a bar—and Conditions 4, 5, 17, and 19 are unrelated to preventing such a circumstance from recurring. In short, Jackson is inapposite and does not support the Parole Board’s position with respect to Bleeke.
Without any evidence of Bleeke posing a threat to children (and in the face of clear evidence to the contrary), Conditions 4, 5, 17, 19, and 20 of Bleeke’s parole cannot be viewed as “reasonably related to [Bleeke’s] successful reintegration into the community.” Ind. Code § 11-13-3-4(b). As he says, the conditions isolate Bleeke from not only minors, but “other, non-immediate family members and . . . friends and acquaintances generally,” because “[m]any people have children and most social interactions include children.” (Appellant’s Br. at 36.) “Parolees are sharply curtailed in their ability to form and maintain friendships with other people, even other adults, when they are restricted from having contact with minors.” (Appellant’s Br. at 36.) To put it more bluntly, instead of helping Bleeke successfully reintegrate into the community, these conditions—with no reasonable factual basis for doing so—effectively operate only to isolate him further from the community. They thus fail to meet the requirements of Ind. Code § 11-13-3-4(b), and their enforcement must be enjoined, [Footnotes omitted.]
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Bleeke was convicted of attempted criminal deviate conduct. Under the current version of the Indiana Code, that classifies him as a “sexually violent predator.” See Ind. Code § 35-38-1-7.5(b)(1)(B), (b)(1)(J) (Supp. 2013). This classification means that he is also, by current statute, classified as an “offender against children.” Ind. Code § 35-42-4-11(a)(1) (Supp. 2013). Offenders against children may not reside within one thousand feet of a school, youth program center, or public park. Ind. Code § 35-42-4-11(c) (2008). Knowingly or intentionally doing so is a class D felony. Id.
In a similar way, Ind. Code § 11-13-3-4(g)(2) requires the Parole Board to prohibit all sex offenders from residing within one thousand feet of school property and “from owning, operating, managing, being employed by, or volunteering at any attraction designed to be primarily enjoyed by children less than sixteen (16) years of age.” Ind. Code § 11-13-3-4(g)(2)(B), (g)(2)(D). A sex offender may obtain written approval from the Parole Board to live within one thousand feet of a school, but there is no such waiver available for the employment restriction—and it is not clear if the waiver on residency in proximity of a school would excuse the parolee from criminal liability under the “offender against children” statute.
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The Court of Appeals concluded that Ind. Code § 35-42-4-11 does not apply to Bleeke at all, as it does not apply to offenders who committed crimes prior to June 30, 2006, and Bleeke’s offense occurred in 2002. [Footnote omitted.] Bleeke, 982 N.E.2d at 1047. It also concluded that Ind. Code § 11-13-3-4(g)(2)(D), by effectively identifying Bleeke as an offender against children, “limit[ed] legitimate conduct in the form of both foreseeable employment and association,” in spite of all the evidence indicating “that Bleeke is not among those sex offenders who ‘cross-over’ and become a danger to children.” Id. at 1050. It therefore found that statutory provision overbroad as applied to Bleeke. Id.
The Court of Appeals also noted that the application of the label “offender against children” implicated a liberty interest in freedom from stigmatization that required some level of due process before it could be imposed. Id. at 1048–49. But it concluded that Bleeke had received that process by way of his litigation leading up to this appeal—it did not require, as Bleeke seeks, an individualized assessment prior to the application of the statutes. Id. at 1049.
We agree with the Court of Appeals’ analysis on these claims, and we likewise agree that to the extent Bleeke was entitled to procedural protections he received them by way of his legal challenges. We note again that it may prove to be more efficient for the Parole Board to provide such process before litigation ensues, but that is not a question we need to resolve today.
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Indiana’s SOMM program was established in 1999 as a statewide program aimed at reducing the recidivism of offenders convicted of sex crimes. It is managed by the DOC with the provision of specialized treatment services subcontracted to Liberty Behavioral Health Corporation. Offenders are targeted for the SOMM program based on their conviction for certain specified sex-related offenses, or certain other offenses “that [are] determined to be of a sexual nature based upon a review of the instant offense and all available documentation.” [Footnote omitted.] (App. at 280.)
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Bleeke contends that the requirement that he admit his guilt for the offense of which he was convicted in order to successfully complete the SOMM program—even though he has consistently maintained his innocence—coupled with failure to complete the program being a parole violation, is a violation of the Fifth Amendment’s privilege against self-incrimination. [Footnote omitted.] He also argues that the requirement that he disclose all other sexual behaviors, including those that would be criminal offenses, under a mandatory polygraph program and with no immunity for the disclosures, is a Fifth Amendment violation because failure to comply is grounds to revoke his parole and compliance risks incriminating statements being shared with law enforcement. We disagree.
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The question before us thus becomes whether this threat to Bleeke—answer the potentially incriminating questions or face re-incarceration—so compelled (or will compel) his answers that it violates the Fifth Amendment unless he is provided immunity.
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Bleeke claims that “[i]f he refuses to participate while in prison he will be cited for a disciplinary violation and will lose statutory credit time on his sentence.” (Appellant’s Br. at 47.) “Deducting credit time from an inmate’s incarceration because he refuses to admit sexual offenses [in] Phase II of the SOMM program surely . . . rises to the level of compulsion for purposes of the Fifth Amendment privilege against self-incrimination.” (Appellant’s Br. at 50.)
This reads as a facial challenge to the SOMM program, but it also includes a specific challenge regarding its application to Bleeke in that the State actually used—and carried out—the threat of re-incarceration as leverage to require Bleeke to provide potentially incriminating statements during the second phase of the SOMM program. Regardless, we agree with those other state and federal courts applying McKune and holding that this form of disciplinary response does not constitute a “penalty” such that Bleeke would have been compelled to yield his Fifth Amendment privilege. . . . .
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So to the extent Bleeke argues that the potential revocation of his parole for failure to comply with the SOMM program would extend his incarceration, and thereby violate his Fifth Amendment privilege because it would send him back to jail from parole to serve out his fixed term, that argument fails. For the same reasons we provided above with respect to the second phase of the SOMM program, such a circumstance would fall under the Parole Board’s power to offer a constitutionally permissible choice to a lawfully convicted offender: comply with your parole requirements, or serve out the full sentence received as a result of your lawful conviction.
Dickson, C.J., Rucker, Massa, and Rush, JJ., concur.