Neal

This case involves a state’s attempt to classify and treat the sex offenders among its prison population in the hope of decreasing recidivism without violating the U.S. Constitution. A.J. Neal (“Neal”) and Marshall Martinez (“Martinez”) appeal the district court’s orders granting summary judgment to the defendant prison administrators in their separate 42 U.S.C. § 1983 actions. Neal and Mai*tinez allege that Hawaii’s Sex Offender Treatment Program (“SOTP”), labeling them sex offenders and compelling their participation in the SOTP as a precondition to their eligibility for parole, violates the Ex Post Facto Clause, violates their due process rights, abridges their privilege against self-incrimination, and constitutes cruel and unusual punishment. We have jurisdiction under 28 U.S.C. § 1291 . As to Martinez, we affirm the district court’s order in its entirety. As to Neal, we affirm in part and reverse in part.

I.

A. The Program

In 1992, the Hawaii legislature passed Act 164 (“the Act”) authorizing the creation of the SOTP. The Act was premised on the legislature’s conclusion that “sexual assault is a heinous crime committed by Offenders with *822 deviant behavior patterns that…

concurring and dissenting:

I concur in the majority’s analysis in all respects except its conclusion that Hawaii’s SOTP, as applied to the appellants, does not violate the Ex Post Facto Clause. .In reaching its conclusion, the majority relies upon the Supreme Court’s recent decision in Kansas v. Hendricks, — U.S. -, 117 S.Ct. 2072 , 138 L.Ed.2d 501 (1997). Because I do not think that Hendricks affects plaintiffs’ ex post facto claims and because the law aside from Hendricks, including controlling Ninth Circuit precedent, clearly supports their claims, I dissent as to the ex post facto issue and as to the result with respect to Martinez.

Deciding whether a state statute violates the Ex Post Facto Clause involves a two-part inquiry. First, we must determine whether the law is retrospective: whether it applies to events that occurred before its enactment. Second, we must determine whether the law would disadvantage the person involved if it were applied to him. Hamilton v. United States, 67 F.3d 761, 764 (9th Cir.1995); United States v. Paskow, 11 F.3d 873, 877 (9th Cir.1993); Chatman v. Marquez, 754 F.2d 1531, 1535 (9th Cir.), cert. denied, 474 U.S. 841 , 106 S.Ct. 124 , 88…