Petition for Writ of Certiorari — Ainsworth v. Stanley, Commissioner, New Hampshire Department of Corrections
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No.
In The
Supreme Court of the United States
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WAYNE AINSWORTH, et al.,
Petitioners,
HENRY RISLEY, COMMISSIONER, NEW
HAMPSHIRE DEPARTMENT OF CORRECTIONS,
Respondent.
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The First Circuit
¢
PETITION FOR A WRIT OF CERTIORARI
*
MIcHAEL J. SHEEHAN, Eso.
Counsel of Record
58 Pleasant Street
Concord, NH 03301
(603) 225-5240
Counsel for Petitioners
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTION PRESENTED
Does New Hampshire violate the Fifth Amendment
when it compels inmates to enter a sexual offender treat-
ment program, and answer the incriminatory questions
required to gain admission, by (1) denying the inmates
any real chance of parole without completing the pro-
gram, and/or (2) by threatening and making punitive
housing transfers of those who do not incriminate them-
selves to enter the program?
li
PARTIES TO THE PROCEEDINGS
Petitioners
Petitioners are the following convicted sex offenders
in the custody of the respondent Commissioner of the
New Hampshire Department of Corrections, P.O. Box 14,
Concord, NH, 03302:
a.
b.
Cc.
x 99
et
.
9
” ?
—
Wayne Ainsworth
Kevin Badger
Charles Boetti
Francis Bowen
Donald Carter
Liston Clark, Sr.
Craig Coulter
Albert Dion
David Fortier
Joseph Giles, Sr.
Daniel Goodwin, Sr.
Allen Gould
Carl Graf
Larry Hall
Richard A. Hilton, Sr.
Duane L. Killam
Armand E. Lavertue
Kevin Lavoie
the New Hampshire Department of Corrections (the pre-
sent commissioner is Phil Stanley), 105 Pleasant Street,
Concord, NH, 03301.
iii
PARTIES TO THE PROCEEDING - Continued
s. Walter Martin
t. David Paulsen
u. Darrel H. Rogers
v. Ronald Turgeon
w. Hershell F. Winship
Respondent
Respondent Henry Risley was the Commissioner of
iv
TABLE OF CONTENTS
Page
en SNE 5020 eee i
Parties to the iommmes COC TET OO NOE li
We OE Ns pices cite boeken ee, iv
Te I cis let oe \
Stained on aE STE Te TERT TR TR AE 1
PR, Seon Soccer ess seeee 1
Constitutional and Statutory Provisions Involved... 2
Statement of the Case............................. 2
Reasons for (ranting the Writ ..................... 7
RN rtesccectadss vee aS 11
Appendix
Appendix A
Court of Appeals Opinion, 4/3/2001........ App. 1
Appendix B
District Court Order, 5/18/00.............. App. 30
Appendix C
Magistrate’s Report and Recommendation,
NN 4 0 va pu nes eng oe buen App. 43
Appendix D
Order denying Petition for Rehearing,
hatch ccincioe ETRE T TET TR App. 67
TABLE OF 4UTHORITIES
Page
Cases
Asherman v. Meachum, 957 F.2d 978 (2d Cir. 1992)
Ok EEE Oe RTT ON Pn Lee eS 11
Ainsworth v. Risley, 244 F.3d 209 (1st Cir. 2001)....... 1
Doe v. Sauer, 186 F.3d 903 (8th Cir. 1999)............ 11
Frisby v. Schultz, 487 U.S. 474 (1988) ................ 10
Lile v. McKune, 224 F.3d 1175 (10th Cir. 2000),
certiorart granted by McKune v. Lile, 121 S.Ct.
1955, 69 U.S.L.W. 3506 (May 14, 2001) (No.
Se Lk ERE TEE EEE TEC TT ere 4,7, 8, 9, 10, 11
Mace v. Amestoy, 765 F.Supp. 847 (D. Vt. 1991)...... 1]
Malat v. Riddell, 383 U.S. 569 (1966).................. 7
State v. Imlay, 813 P.2d 979 (Mont. BeeEe eackeereten. 11
Turner v. Safley, 482 U.S. 78 (1987) ................... 6
CONSTITUTIONS, STATUTES AND RULES
U.S. Constitution, Fifth Amendment............. passim
me Wiis BRR 6k hone code eee 1
Te WG Bh FP 66 in cakes pe
supreme Court Rule 13.1 ...... 2.0.0... ccccsccccccece. 1
PETITION FOR WRIT OF CERTIORARI
Petitioners Wayne Ainsworth, et al., respectfully ask
that this Court issue a writ of certiorari to review the
judgment and opinion of the United States Court of
Appeals for the First Circuit.
+
OPINIONS BELOW
The opinion of the United States Court of Appeals for
the First Circuit that gives rise to this petition is reported
as Ainsworth v. Risley, 244 F.3d 209 (1st Cir. 2001),
reprinted in Appendix A at page App. 1. By order filed
May 3, 2001, the First Circuit denied petitioners’ request
for rehearing and suggestion for rehearing en banc.
Appendix D, at App 67. The district judge’s Order and
the magistrate’s Report and Recommendation are not
reported. See Appendix B and Appendix C, at App. 30
and App. 43, respectively.
JURISDICTION
Petitioners invoke this Court’s jurisdiction to review
the final judgment of the First Circuit pursuant to 28
U.S.C. § 1254(1). The First Circuit issued its decision on
April 3, 2001, and denied a timely petition for rehearing
and suggestion for rehearing en banc on May 3, 2001.
This petition has been filed within 90 days of the denial
of rehearing. Supreme Court Rule 13.1.
¢
CONSTITUTIONAL PROVISION AND STATUTE
INVOLVED IN THIS CASE
The Fifth Amendment to the United States Constitu-
tion provides, in relevant part:
No person . . . shall be compelled in any
criminal case to be a witness against himself. . . .
Title 42 U.S.C. § 1983 provides, in relevant part:
Every person who, under color of any stat-
ute, ordinance, regulation, custom, or usage, of
any State or Territory or the District of Colum-
bia, subjects, or causes to be subjected, any citi-
zen of the United States or other person within
the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity,
or other proper proceeding for redress. . . .
¢
STATEMENT OF THE CASE
1. Nature of the Suit. Petitioners are inmates at the
New Hampshire State Prison who were convicted of sex
offenses and are in the custody of the respondent Com-
missioner of the New Hampshire Department of Correc-
tions. App. 2.
The prison offers a residential sex offender treatment
program (SOP) that provides treatment, social skills train-
ing, clinical group sessions, and the like to inmates con-
victed of sex crimes, like petitioners. Id. Once an inmate
applies for the program, the SOP staff interviews the
inmate to determine if he is an appropriate candidate. As
|
part of this initial interview, the inmate must admit to his
crime of conviction and must disclose other offending
behavior for which he was neither charged nor convicted.
App. 3. Questions about uncharged conduct typically
stem from review of the presentence report or police
investigations. App. 4; App. 44.
Petitioners fall into one or more of three categories:
1) those who refuse to admit their crimes of conviction
because their cases are not final due to a pending direct
appeal or collateral attack; 2) those who refuse to admit
to their crime of conviction because they testified at trial
and are subject to a perjury charge should they recant;
and 3) those who refuse to admit to uncharged criminal
conduct. App. 4-5. The SOP staff denies entry to the SOP
of any inmate who falls in one of these categories. App. 6.
The incriminating nature of the questions required to
gain entrance to the SOP cannot - and has not - been
challenged:
As the defendant concedes, the plaintiffs
can easily show that the SOP’s required dis-
closures are incriminating. To participate in the
program, the plaintiffs must admit to uncharged
offenses as well as the behavior that led to their
crime of conviction. They receive no guarantee
of immunity from prosecution —- to the contrary,
they are told that incriminating statements will
be reported to police and prosecutors. In addi-
tion, an offender’s admission to his crime of
conviction could expose him to future prosecu-
tion for perjury if he denied guilt at trial, or
could undermine an ongoing appeal.
App. 11-12.
eee
Petitioners claim two things happen as a direct result
of their refusal to incriminate themselves to gain entrance
into the SOP. First, those petitioners in a particularly
favorable housing unit (Medium Custody South, or
“South”) are moved to a significantly less desirable unit
(Hancock Building). Petitioners claim the day-to-day
effects of this transfer are analogous to those found con-
stitutionally significant in Lile v. McKune 224 F.3d 1175
(10th Cir. 2000), certiorari granted by McKune v. Lile, 121
S.Ct. 1955, 69 U.S.L.W. 3506, 3719 (May 14, 2001) (No.
00-1187) (i.e., more crowded cells, less time outdoors,
fewer recreational opportunities and greater risk of phys-
ical harm). Indeed, this very same housing transfer (from
South to Hancock) is one form of punishment imposed
upon other inmates convicted of violating prison disci-
plinary rules. App. 5.
The second consequence of petitioners’ refusal to
incriminate themselves to enter the SOP is the loss of any
meaningful chance for parole because completing the
SOP is, in effect, a condition precedent to parole.
New Hampshire inmates are given sentences with
minimum and maximum terms, e.g., 71/2 to 15 years. See
N.H. Revised Statutes Annotated 651:2, II(d). An inmate
with this sentence is eligible for parole after 7/2 years,
but will serve no more than 15 years. The New Hamp-
shire Adult Parole Board conducts a hearing to consider
an inmate’s request for release any time after he served
the minimum term, in this example, any time after 71/2
years.
The parole board summarily rejects parole for those
sex offenders who have not completed the SOP. The evi-
dence in this case is that the parole board only releases
2-3% of sex offenders who have not completed the SOP
(and those few cases carry extenuating circumstances).
App. 5, App. 20, at n. 12. Therefore, petitioners claim that
parole for sex offenders is conditio ed upon their making
the self-incriminatory statements required to enter and
complete the SOP, App. 11, an assertion the magistrate
judge found compelling: “[t]he facts here demonstrate
that sexual offenders may not be considered for parole if
they have not completed the SOP.” App. 60.
Petitioners filed this action pursuant to 42 U.S.C.
§ 1983 seeking injunctive and declaratory relief from this
constitutional dilemma which they confront at the hands
of the respondent commissioner.
2. The District Court. A magistrate judge held an
evidentiary hearing on petitioners’ request for injunctive
relief and recommended that the district court grant a
preliminary injunction. App. 5-6; App. 65. The magistrate
found that petitioners were not even considered for parole
absent completion of the sex offender program, which
was sufficient compulsion for Fifth Amendment purposes
and thus recommended an injunction precluding the
prison from asking the incriminating questions absent
immunity. App. 6; App. 60-61.
The district judge disagreed with the magistrate and
granted respondent’s motion to dismiss for failure to
state a claim on both theories of compulsion. App. 6;
App. 42. Petitioners timely appealed to the First Circuit.
3. The First Circuit. The First Circuit affirmed the
dismissal, which it treated as a grant of summary judg-
ment because of the reliance upon documents and testi-
mony outside the complaint. App. 6.
The First Circuit began with the assumption “that the
plaintiffs collectively present the strongest set of facts
that support the claim they have developed - in other
words, that they applied tc the SOP and were rejected;
that they risk future prosecution by disclosing uncharged
conduct; that they have been or will be denied parole;
and that they have been or will be transferred to a less
desirable cellblock in the prison,” App. 5 at n. 2, and the
acknowledgment that petitioners “can easily show that
the SOP’s required disclosures are incriminating.” App.
10.
The First Circuit’s analysis then centered on three of
the four factors set forth in Turner v. Safley, 482 U.S. 78,
89-91 (1987) (the fourth being inapposite here): ” ‘whether
the state’s policy serves a valid governmental interest; the
extent to which the prisoner is foreclosed or burdened in
exercising his rights; and the presence or absence of rea-
sonable alternatives for the government to achieve the
same ends by other means without significant cost or
impairment of the governmental interest at stake.’ ”
App. 10 (citation omitted). Although recognizing “the
closeness of the Fifth Amendment self-incrimination
question presented here” because petitioners “do suffer
some burden in the exercise of their Fifth Amendment
rights when they must chose between declining to partic-
ipate in the SOP, which significantly enhances their
chances for parole, or disclosing other criminal conduct,”
App. 26, the First Circuit concluded that this burden does
“not constitute a penalty sufficient to compel incriminat-
ing speech in violation of the Fifth Amendment,” App.
26-27, and affirmed the district court.
The First Circuit also found insufficient the second
claimed source of compulsion, the punitive housing
transfer. App. 27. The First Circuit rejected petitioners’
reliance upon Lile v. McKune, distinguishing the facts of
that case in which the Tenth Circuit found sufficient
compulsion existed where the inmates were transferred
from a medium to a maximum security facility for failure
to make incriminating admissions as part of Kansas’s
sexual offender treatment program.
The First Circuit denied petitioners’ request for
rehearing and suggestion for rehearing en banc. App. 67.
+
REASONS FOR GRANTING THE WRIT
A. The First Circuit’s Opinion Conflicts With the
Tenth Circuit’s Ruling in Lile v. McKune That a
Punitive Housing Transfer Constitutes Suffi-
cient Compulsion to Trigger Fifth Amendment
Protection.
This writ should be granted “to resolve a conflict
among the courts of appeals.” Malat v. Riddell, 383 U.S.
569, 571 (1966), namely the conflict between the First and
Tenth Circuits as to whether an adverse housing transfer
is sufficiently punitive to be “compulsion” as contem-
plated by the Fifth Amendment.
On May 14, 2001, this Court granted certiorari In Lile
v. McKune (now McKune v. Lile) to address the following
LL, AST TT CER A MCI RT
issue: Does “the revocation of correctional institution
privileges violate the Fifth Amendment’s privilege
against self-incrimination where . . . such revocation is
based upon the inmate’s failure to accept responsibility
for his crimes as part of a sex offender treatment pro-
gram?” See Petition for a Writ of Certiorari in McKune v.
Lile, at page i.
The “institutional privileges” at issue in McKune v.
Lile are those resulting from Mr. Lile’s move from a
medium security facility to a maximum security prison.
Specifically, he would lose his personal TV; he
would have limited access to prison organiza-
tions and activities and would be unable to par-
ticipate in the IMPP; he would have limited
access to the gym and yard area; there would be
a substantial reduction in the amount of money
he could spend in the canteen per pay period
from $140 per payroll at Level III to $20 per
payroll at Level I; he would receive a reduction
in pay and intake property; and he would have
received substantially restricted visitation privi-
leges.
Lile v. McKune, 224 F.3d at 1181; see also, id., at 1185
(relying upon evidence that Mr. Lile would be in a more
dangerous facility and would be moved from a two to a
four-man cell). The Tenth Circuit concluded these “depri-
vations and changes in environment are penalties suffi-
cient to implicate the Fifth Amendment.” Id.
The adverse impact upon petitioners’ daily life
resulting from the move from “South” to “Hancock” are
analogous.
[P]rison officials testified that Hancock is the
prison’s “low rent district” and compared South
to a hotel. The plaintiffs cite several advantages
of living in South. They have greater outdoor
privileges; they live in two-man rather than
eight-man cells; they live in smaller “pods,” or
living groups [24 versus 96 man pods]. As evi-
dence that the move to Hancock is punitive, the
plaintiffs argue that such transfers are used to
punish inmates who break the rules. Some of the
plaintiffs also said that . . . they feel safer at
South because [in] Hancock, where they are sur-
rounded by violent and drug offenders, they are
targets of harassment and assault.
App. 27; see App. 5
The First Circuit concluded these housing differences
are insufficient to amount to compulsion. The First Cir-
cuit thus decided the issue differently than did the Tenth
Circuit in Lile v. McKune giving rise to a circuit conflict.
To the extent the First Circuit did not create a direct
conflict given its attempt to factually distinguish Lile v.
McKune, App. 28 at n. 16, granting this writ is nonetheless
appropriate because this case presents the issue already
before the Court in McKune v. Lile through slightly differ-
ent facts and thus provides the opportunity for this Court
to more fully develop the important Fifth Amendment
issue.
10
B. Conditioning Parole upon Completion of the
SOP Is Sufficient Compulsion.
Petitioners also ask this Court to issue a writ of
certiorari “because the question presented is of substan-
tial importance.” Frisbee v. Schultz, 487 U.S. 474, 479
(1988).
Petitioners here present an issue that the parties liti-
gated in Lile but apparently is not part of their appeal to
this Court: whether petitioners’ de facto ineligibility for
parole for failure to complete the SOP constitutes suffi-
cient compulsion to trigger Fifth Amendment protection.
See Lile v. McKune, 224 F.3d at 1181-82.
The magistrate found that petitioners were ineligible
for parole (as opposed to being considered and rejected
for parole) for failure to complete the SOP. App. 60. The
First Circuit acknowledged that “the SOP’s requirement
that offenders disclose uncharged conduct .. . presents
the plaintiffs with a difficult dilemma,” which “dilemma
undoubtedly imposes some burden on the exercise of
their Fifth Amendment rights.” App. 14-15. The First
Circuit’s conclusion that this burden is sufficiently “miti-
gated” by the “voluntary nature” of applying for the SOP
and that denial of parole “does not follow automatically
from the refusal to speak,” App. 16, deserves further
review. See App. 19, 20 (“[wJhether the choice that the
plaintiffs here face is voluntary in a meaningful sense
seems to us a closer question [and] the defendant does
not dispute that completion of the SOP functions as a de
facto requirement of parole for most New Hampshire sex
offenders”).
11
Other courts have struggled with this issue. See Lile v.
McKune, 224 F.3d at 1181-82; Doe v. Sauer, 186 F.3d 903,
906 (8th Cir. 1999); Asherman v. Meachum, 957 F.2d 978 (2d
Cir. 1992) (en banc); Mace v. Amestoy, 765 F.Supp. 847, 850
(D. Vt. 1991); State v. Imlay, 813 P.2d 979, 985 (Mont. 1991).
Petitioners present the issue in as clean and direct a
manner as will likely occur.
+
“CONCLUSION
For the reasons stated above, petitioners respectfully
ask that the Court grant this petition for writ of certiorari.
Respectfully submitted,
Wayne Ainsworth, et al.
By their attorney
MICHAEL J. SHEEHAN, Esa.
Counsel of Record
58 Pleasant Street
Concord, NH 03301
(603) 225-5240
App. 1
APPENDIX A
United States Court of Appeals
For the First Circuit
No. 00-1678
WAYNE AINSWORTH, et al.,
Plaintiffs, Appellants,
V.
HENRY RISLEY,
COMMISSIONER, NEW HAMPSHIRE
DEPARTMENT OF CORRECTIONS,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES
DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin, and Lipez, Circuit Judges.
Michael J. Sheehan for appellants.
Andrew B. Livernois, Attorney, New Hampshire Civil
Bureau, with whom Philip T. McLaughlin, Attorney Gen-
eral, New Hampshire was on brief, for appellee.
April 3, 2001
LIPEZ, Circuit Judge. A group of convicted sex
offenders claim, pursuant to 42 U.S.C. § 1983, that the
New Hampshire Department of Corrections violated their
Fifth Amendment right against self-incrimination by
ee eee
App. 2
requiring them to disclose their histories of sexual mis-
conduct to participate in a sex offender treatment pro-
gram. The plaintiffs argue that the required disclosures
are incriminating because they could lead to future pros-
ecutions or perjury charges, or could affect ongoing
appeals. They argue that the disclosures are compelled
because completion of the treatment program is a de facto
requirement for parole and for maintaining residence in
desired prison housing. The district court granted the
defendant’s motion to dismiss, finding that the plaintiffs
failed to state a cognizable Fifth Amendment claim. We
affirm.
I,
The facts in this case generally are not disputed. The
plaintiffs are 23 inmates in the New Hampshire State
Prison who have been convicted of sex offenses. As sex
offenders, they may apply for the prison’s Sexual
Offender Program (SOP), instituted in 1986. According to
its mission statement, the SOP seeks to “ensure commu-
nity safety and protection” by preventing recidivism. The
program is designed to “address sexual addiction,” “help
offenders understand the thoughts, feelings and behav-
iors which precede their offense,” and “develop relapse
prevention skills.” To that end, the SOP provides residen-
tial therapy to 60 inmates a year.! Participants live
together in a dorm and receive 10 to 15 hours of treat-
ment a week for 12 to 16 months. Treatment includes
' At the time relevant to this litigation, there were about 650
sex offenders in the New Hampshire State Prison.
App. 3
community meetings, social skills training groups, clini-
cal groups, and a year-long structured workbook series.
Inmates must apply to the SOP to be admitted.
Applicants are placed on a waiting list. Within two years
of the earliest date on which an applicant could receive
parole, two SOP staff members assess his eligibility for
the program. Selection criteria include an applicant's
willingness to admit his offense and accept responsibility
for it. “If an applicant appears open and honest, recog-
nizes he has a serious problem and is committed to
changing his behavior, he is approved for programming.”
The program bases these requirements on the belief that
sex offenders must recognize past misconduct before
effective treatment can begin.
Inmates who are accepted by the SOP must sign a
“treatment contract.” Provisions of the contract include:
“I agree to be complete [sic] open and honest and assume
full responsibility for my offenses and my behavior;” and
“Il understand that I have committed a sexual crime and I
will be required to discuss and complete assignments
regarding my sexual history/deviancy. I may be required
to answer many questions about my sexual past and my
current sexual behavior.” Inmates also agree to release
any information about past behavior sought by program
staff, and, if necessary, to take a lie detector test “to
ensure full disclosure of offending history.” Finally, SOP
participants must sign a waiver of confidentiality. The
waiver states, in relevant part:
I have been informed that any staff member at N.H.
State Prison is required by law to report to the appropri-
ate authorities, including but not limited to, the County
Attorney’s Office, the State Police, Local Police, Division
_ App. 4
for Children and Youth Services and Probation Depart-
ment, any actual or suspected sexual offense of a speci-
fically identifiable victim, regardless of how the staff
member gains knowledge of such occurrence or potential
occurrence.” The SOP rejects inmates who refuse to com-
ply with the terms of the treatment contract or to sign a
confidentiality waiver. The program also generally deems
inmates whose cases are on appeal unsuitable for treat-
ment because they have not acknowledged responsibility
for their crime of conviction.
Lance Messinger, director of the SOP, testified about
the disclosure requirements at a hearing on the plaintiffs’
petition for injunctive relief. Messinger said that SOP
staff members do not require applicants to identify other
victims whose names have not already been reported,
and that they discourage them from providing specific
information that could be incriminating. However, Messi-
nger said that if staff members already have information
about an offense with which the applicant has not been
charged, they press the applicant to admit to that offense.
Such information usually comes from an inmate’s presen-
tence report and may concern allegations about an addi-
tional victim. Any admissions of uncharged conduct that
an inmate makes must be reported to police and prosecu-
tors. Messinger said that he has tried on a case-by-case
basis to win immunity from prosecution for specific SOP
participants, with limited success. Messinger said that he
remembered one case within the last ten years in which
the county attorney prosecuted a case based on admis-
sions made through the SOP.
The individual plaintiffs in this case have had a vari-
ety of experiences with the SOP. Some of the plaintiffs
have not applied for the SOP because of the required
ere
App. 5
disclosures. Others have applied and were rejected
because they refused to admit to their crime of convic-
tion, because their case was on appeal, or because they
refused to admit to an uncharged offense involving an
additional victim.
A few of the plaintiffs must complete the SOP as a
condition of their sentence. The majority, however,
applied for the program for two reasons. First, comple-
tion of the SOP is generally, though not always, required
before sex offenders receive parole. At the preliminary
injunction hearing, an official from the New Hampshire
Adult Parole Board testified that to date 97 to 98 percent
of the sex offenders who received parole had completed
the SOP. Second, sex offenders who do not complete the
SOP often are transferred from South Unit to Hancock
Building. Both South and Hancock are medium security
units, but the plaintiffs view South as preferable housing.
South has two-man cells, 24-man pods, extensive outdoor
privileges, and houses mainly sex offenders. Hancock has
eight-man cells, 96-man pods, only one hour of outdoor
access, and houses mainly. drug and violent offenders.
The plaintiffs testified that South is a safer unit for sex
offenders, and some of them said they had been assaulted
or hassled at Hancock. They also point out that transfers
to Hancock are used to punish South inmates who com-
mit minor disciplinary offenses.
2 For the purposes of our analysis, we assume that the
plaintiffs collectively present the strongest set of facts that
support the claim they have developed - in other words, that
they applied to the SOP and were rejected; that they risk future
prosecution by disclosing uncharged conduct; that they have
been or will be denied parole; and that they have been or will be
transferred to a less desirable cellblock in the prison.
App. 6
The plaintiffs filed this action as a petition for declar-
atory and injunctive relief. A magistrate judge held a
hearing on the petition and recommended that the court
grant a preliminary injunction enjoining the defendant
from making admission of uncharged criminal conduct a
condition of participation in the SOP, unless the plaintiffs
received immunity from use of their admissions in future
prosecutions. The district court rejected the magistrate
judge’s recommendation and granted the defendant’s
motion to dismiss for failure to state a claim, finding that
the plaintiffs had failed to establish that the prison’s
policies violated the Fifth Amendment privilege against
self-incrimination.
Normally, a motion to dismiss for failure to state a
claim is based only on the pleadings. See Fed-R. Civ. Proc.
12(b)(6). In this case, the district court had before it
evidence developed at the preliminary injunction hear-
ing. See Developmental Disabilities Advocacy Center, Inc. v.
Melton, 689 F.2d 281, 282 (1st Cir. 1989). Both the court
and the parties repeatedly referred to this evidence, effec-
tively converting the motion to dismiss to a motion for
summary judgment. Fed. R. Civ. Proc. 12(b)(6) (“If, on a
motion . . . to dismiss for failure . . . to state a claim...
matters outside the pleading are presented to and not
excluded by the court, the motion shall be treated as one
for summary judgment.”). We thus review the district
court’s decision according to summary judgment stan-
dards, considering the facts and all reasonable inferences
to be drawn from them in the light most favorable to the
nonmoving party. See F.D.I.C. v. Kooyomjian, 220 F.3d 10,
13-14 (1st Cir. 2000). The moving party prevails if there is
no genuine dispute as to any material fact and the party
is entitled to judgment as a matter of law. See Fed. R. Civ.
App. 7
Proc. 56(c). Our review is de novo. See Garside v. Osco
Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990).
Il.
The Fifth Amendment prevents any person from
being “compelled in any criminal case to be a witness
against himself.” U.S. Const. amend. V. The Amend-
ment’s self-incrimination clause applies to the states
through the Fourteenth Amendment. See Spevack v. Klein,
385 U.S. 511, 514 (1967). The protection against self-
incrimination extends beyond criminal investigations,
privileging a witness “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 proceedings.” Lefkowitz v. Turley, 414 U.S.
70, 77 (1973). A criminal defendant who has been con-
victed retains the privilege after imprisonment as long as
his testimony may be used against him in a future trial
for a crime of which he has not yet been convicted. See
Mitchell v. United States, 526 U.S. 314, 325 (1999); Minne-
sota v. Murphy, 465 U.S. 420, 426 (1984). Two criteria must
be met in order for the privilege to apply: the witness
must reasonably believe that his statements may be used
to incriminate him, Hoffman v. United States, 341 U.S. 479,
486 (1951), and the statements must be compelled.
Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977) (“the
touchstone of the Fifth Amendment is compulsion”).
Compulsion exists when some factor denies the individ-
ual the “free choice to admit, to deny, or to refuse to
answer.” Lisenba v. California, 314 U.S. 219, 241 (1941).
The Supreme Court has found testimony to be com-
pelled in several contexts. For example, the Court has
App. 8
found that the state impermissibly compelled testimony
by forcing police officers and city employees to choose
between incriminating themselves and losing their jobs.
See Garrity v. New Jersey, 385 U.S. 493 (1967); Gardner v.
Broderick, 392 U.S. 273, 274 (1968); Uniformed Sanitation
Men Ass’n v. Comm'r of Sanitation of New York, 392 U.S. 280
(1968). The Court also has found that the statements of an
attorney made at a disciplinary proceeding under threat
of disbarment were compelled, see Spevack, 385 U.S. at
516. And it has invalidated state statutes that stripped an
attorney of his state political party office and architects of
a city-awarded contract because they refused to waive
their Fifth Amendment privilege. See Cunningham, 431
U.S. at 808; Turley, 414 U.S. at 85.
In these early cases, the consequences of refusing to
give potentially incriminating testimony were economic.
Yet the Court described compulsion in relatively broad
terms. In Spevack, the Court said that a “ ‘penalty’ is not
restricted to fine or imprisonment” but instead means
“the imposition of any sanction which makes assertion of
the Fifth Amendment privilege ‘costly.’” Spevack, 385
U.S. at 515 (citing Griffin v. California, 380 U.S. 609, 614
(1965)). In Cunningham, the Court said that the Fifth
Amendment protects against state-imposed “potent sanc-
tions” or “substantial penalties.” Cunningham, 431 U.S. at
805. The Court also “rejected the notion that citizens may
be forced to incriminate themselves because it serves a
governmental need,” saying that the interests of the state,
even if compelling, do not “justify infringement of Fifth
Amendment rights.” Id. at 808.
Later Supreme Court cases, however, have qualified
the application of these broad, rights-protective state-
ments in cases involving prisoners, holding that courts
sos aa tt
pial eet ie ah a
App. 9
must consider the state’s interest in imposing a rule or
requirement related to imprisonment when deciding
whether that requirement violates an inmate’s constitu-
tional rights. The watershed case is Turner v. Safley, 482
U.S. 78 (1987), in which the Court said that “when a
prison regulation impinges on inmates’ constitutional
rights, the regulation is valid if it is reasonably related to
legitimate penological interests.” Id. at 89. As we have
said before in assessing the impact of Turner, “[w]here
burdens are laid upon the exercise of constitutional rights
by prisoners, the Supreme Court’s current approach is to
give very substantial latitude to the state’s judgment.”
Beauchamp v. Murphy, 37 F.3d 700, 704 (1st Cir. 1994), cert.
denied, 514 U.S. 1019 (1995).3
As was the case in Beauchamp, Turner differs from
the case at hand because it involved “the actual running
of prisons and the most practical considerations of disci-
pline, security, administrative feasibility and cost.” Id.
The state offers treatment to sex offenders out of concern
about prisoners’ post-release conduct - most pressingly,
in hopes that such treatment will reduce recidivism rates
3 The Supreme Court has used Turner’s reasonableness test,
for example, in rejecting prisoners’ First Amendment claims.
See, e.g., O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) (prison
officials acted reasonably by precluding Islamic inmates from
attending weekly Friday religious service and thus did not
violate the First Amendment); Thornburgh v. Abbott, 490 U.S. 401
(1989) (reasonable and so constitutional to regulate prisoners’
mail). And the Court has been similarly deferential to the state’s
interests in Fifth Amendment due process cases, holding that
prisoners’ liberty interests extend only to freedom from
restraint that “imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.”
Sandin v. Conner, 515 U.S. 472, 472 (1995).
App. 10
by helping to rehabilitate SOP participants — rather than
out of concern about effective prison management. Still,
the state’s interest remains relevant to determining
whether the SOP’s required admissions violate the plain-
tiffs’ Fifth Amendment rights. “The limitations on the
exercise of constitutional rights arise both from the fact of
incarceration and from valid penological objectives -
including deterrence of crime, rehabilitation of prisoners,
and institutional security.” O’Lone v. Shabazz, 482 U.S. 342,
348 (1987). In light of Turner, the burden that a prison rule
or requirement places on an inmate’s constitutional rights
cannot be unreasonable, and reasonableness largely turns
upon the facts. With some emphases peculiar to prison
regulation, Turner itself identifies pertinent criteria:
“whether the state’s policy serves a valid governmental
interest; the extent to which the prisoner is foreclosed or
burdened in exercising his rights; and the presence or
absence of reasonable alternatives for the government to
achieve the same ends by other means without significant
cost or impairment of the governmental interest at stake.”
Beauchamp, 37 F.3d at 705 (citing Turner, 482 U.S. at
89-91).4
As the defendant concedes, the plaintiffs can easily
show that the SOP’s required disclosures are incriminat-
ing. To participate in the program, the plaintiffs must
admit to uncharged offenses as well as the behavior that
4 We set aside a fourth consideration in Turner, the effect of
the remedy sought on the prison and other inmates, because it is
“linked peculiarly to prison operations.” Beauchamp, 37 F.3d at
705 n.1.
App. 11
led to their crime of conviction. They receive no guaran-
tee of immunity from prosecution - to the contrary, they
are told that incriminating statements will be reported to
police and prosecutors. In addition, an offender’s admis-
sion to his crime of conviction could expose him to future
prosecution for perjury if he denied guilt at trial, or could
undermine an ongoing appeal. See Lile v. McKune, 224
F.3d 1175, 1180 (10th Cir. 2000) petition for cert. filed, 69
U.S.L.W. 3506 (U.S. Jan. 22, 2001) (No. 00-1187).
Thus the real question before us is whether the dis-
closures required by the SOP are unconstitutionally com-
pelled within the meaning of the Fifth Amendment. The
plaintiffs offer two sets of facts to show that the conse-
quence of their refusal to make the admissions required
by the SOP is a penalty sufficient to constitute compul-
sion. First, the plaintiffs claim that because the parole
board has denied or will deny them parole until they
complete the SOP, they have no choice but to comply with
the program’s requirements. Second, they argue that fail-
ure to complete the SOP has led or will lead to a “puni-
tive transfer” from South Unit to Hancock Building, and
that this transfer is sufficient punishment to compel their
admissions. With particular attention to the burden ele-
ment, we apply Turner’s three-part test to determine
whether the denial of parole or the prison housing trans-
fer are penalties sufficient to compel speech within the
prohibition of the Fifth Amendment. See Lile, 224 F.3d at
1190 (applying Turner to prisoners’ Fifth Amendment
claims).
App. 12
A. Denial of Parole
1. Valid Government Interest
New Hampshire law gives the parole board discre-
tion over release decisions, directing the board to base its
judgment on whether there is a “probability that the
inmate will remain at liberty without violating any law
and will conduct himself as a good citizen.” N.H. Code of
Admin. Rules. Ann. § 301.01. Whether a sex offender has
completed the SOP is one factor that the New Hampshire
parole board may consider in deciding whether a sex
offender merits early release. See N.H. Code of Admin. R.
Ann. § 301.02(h) (parole board may take into account
evidence of “self-improvement” achieved through prison
programs, “specifically programs which addressed prob-
lems or issues that contributed to the inmate’s prior
criminal conduct”). The question under Turner is whether
this consideration is based on a valid governmental inter-
est.
Unquestionably, the state has an acute interest in
seeking to rehabilitate sex offenders in hopes of deterring
future crime, particularly given the large body of research
showing that sex offenders commit repeat crimes at
alarming rates.5 To that end, New Hampshire established
the SOP. The program’s requirement that participants
admit to their crimes is widely believed to be a necessary
° See Katie Isaac, Kansas v. Hendricks: A Perilous Step Forward
in the Fight Against Child Molestation, 35 Hous. L. Rev. 1295, 1296
(1998) (citing a 1993 study that found that “forty-two percent of
imprisoned child molesters are later reconvicted for violent or
sexual crimes”).
App. 13
prerequisite to successful treatment. While some
research stresses the difficulty of drawing conclusions
about the success rates of sex offender treatment,” other
studies show that treated sex offenders are less likely to
commit new crimes.® Indeed, the SOP may be achieving
some success. Director Lance Messinger testified that
twelve percent of untreated offenders released from the
prison since 1980 returned on a new sex-offense convic-
tion, while only six percent of those who completed the
SOP did. New Hampshire unmistakably has a valid gZov-
ernment interest in establishing the SOP, and in requiring
sex offenders to admit past conduct to participate in it.
° See Brendan J. Shevlin, “[BJetween the Devil and the Deep
Blue Sea:” A Look at the Fifth Amendment Implications of Probation
Programs for Sex Offenders Requiring Mandatory Admissions of
Guilt, 88 Ky. L.J. 485, 485 (2000); Jonathan Kaden, Therapy for
Convicted Sex Offenders: Pursuing Rehabilitation Without
Incrimination, 89 J. Crim. L. & Criminology 347, 365 n.103(1998);
Scott Michael Solkoff, Judicial Use Immunity and the Privilege
Against Self-Incrimination in Court Mandated Therapy Programs,
17 Nova L. Rev. 1441, 1450 (1993).
” See David DePugh, The Right to Treatment for Involuntarily
Committed Sex Offenders in the Wake of Kansas v. Hendricks, 17
Buff. Pub. Int. L.J. 71 n.140 (1999); Jessica Wilen Berg, Give Me
Liberty or Give Me Silence: Taking a Stand on Fifth Amendment
Implications for Court-Ordered Therapy Programs, 79 Cornell L.
Rev. 700, 700 n.2 (1994).
8 See Kaden, supra note 6, at 365 n.103 (citing one study in
which 60 percent of untreated offenders committed another
crime, and another in which only eight of 100 treated offenders
did so); Solkoff, supra note 6, at 1450 (citing study in which the
four-year recidivism rate decreased from 60 percent for
untreated offenders to 25 percent for treated offenders).
App. 14
2. Burden on the Exercise of Plaintiffs’ Rights
The plaintiffs argue that the denial of parole is a
penalty because it forces them to serve a longer prison
term than they otherwise would. For example, an inmate
with an indeterminate sentence of seven to fifteen years
who has no disciplinary infractions would become eligi-
ble for parole after serving seven years, but would most
likely serve his full sentence if he does not complete the
SOP. The defendant counters that parole is not a right but
a privilege. He points out that inmates do not have a
“liberty right” to parole under the Due Process Clause of
the Fifth Amendment, see Greenholtz v. Inmates of Nebraska
Penal and Correctional Complex, 442 U.S. 1, 7 (1979), or
under New Hampshire law, see N.H. Rev. Stat. Ann § 651-
A:6(I) (providing that a “prisoner may be released on
parole upon the expiration of the minimum term of his
sentence”) (emphasis added); Knowles v. Warden, New
Hampshire State Prison, 666 A.2d 972, 975 (N.H. 1995);
Baker v. Cunningham, 513 A.2d 956, 960 (N.H. 1986).
The lack of a liberty interest in parole, however, does
not settle the question of whether the denial of parole can
constitute a penalty for the purpose of Fifth Amendment
compulsion. From Garrity to the recent case Ohio Adult
Parole Authority v. Woodard, the Supreme Court has evalu-
ated Fifth Amendment self-incrimination claims without
reference to a liberty interest analysis. See, e.g., Garrity,
385 U.S. at 496-501; Woodard, 523 U.S. 272, 285-88 (1998);
compare Lile, 224 F.3d at 1183.
The SOP’s requirement that offenders disclose
uncharged conduct, at the risk that their admissions will
App. 15
be reported to police and prosecutors, presents the plain-
tiffs with a difficult dilemma. This dilemma undoubtedly
imposes some burden on the exercise of their Fifth
Amendment rights. The extent of the burden is mitigated,
however, by three factors: the kind of burden the plain-
tiffs face, the voluntary nature of their choice about
whether to participate in the SOP, and the fact that the
denial of parole does not follow automatically from the
refusal to speak.°
First, parole involves relief from a penalty that has
already been imposed - the full period of incarceration to
which the plaintiffs were sentenced. There is no new or
additional penalty for refusing to participate in the SOP.
To the extent that such labels are useful, the SOP is a
benefit that New Hampshire makes available to sex
offenders, and parole is a further benefit that the state
may condition on completion of the program. See Green-
holtz, 442 U.S. at 11 (“That the state holds out the possi-
bility of parole provides no more than a mere hope that
the benefit will be obtained.”).1°
® The plaintiffs’ brief asserts that some of the plaintiffs
apply for the SOP “because their sentence specifically requires
completion.” These plaintiffs may have a stronger claim of Fifth
Amendment compulsion. However, the plaintiffs in no way
develop this argument in their brief, precluding our
consideration of the implications of any such sentencing
requirements.
10 The plaintiffs unsuccessfully look for support to Neal v.
Shimoda, 131 F.3d 818 (9th Cir. 1997). In Neal, the Ninth Circuit
held that a prison regulation that labeled inmates as sex
offenders and required completion of a sex offender treatment
program as a condition for parole eligibility created a liberty
interest and some due process protection for prisoners who had
App. 16
Because the plaintiffs have not yet obtained release,
the nature of the penalty they face differs from the one at
issue in Minnesota v. Murphy, 465 U.S. 420 (1984). Murphy
was required to attend a treatment program for sex
offenders as a condition of his probation. When his pro-
bation officer questioned him about admissions Murphy
made during the course of treatment regarding an
uncharged rape and murder, he confessed to those
crimes. See id. at 424. His statements were then used to
prosecute him. Murphy argued that his statements were
compelled because his probation would have been
revoked had he refused to answer. See id. at 434. The
court agreed that the state could not directly link invoca-
tion of the Fifth Amendment privilege to revocation of
probation, stating:
There is thus a substantial basis in our cases for
concluding that if the state, either expressly or
by implication, asserts that invocation of the
privilege would lead to revocation of probation,
it would have created the classic penalty situa-
tion... and the probationer’s answers would be
deemed compelled and inadmissible in a crimi-
nal prosecution.
not been convicted of sexual misconduct. See id. at 830. Since
Neal found that an inmate’s due process rather than Fifth
Amendment self-incrimination rights were violated by the
prison regulation at issue, it is not contrary to our holding here.
Moreover, the Ninth Circuit emphasized the automatic nature of
the denial of parole in finding a liberty interest to be at stake. See
id. at 829 (“[B]ecause the State’s regulations render the inmate
completely ineligible for parole if the treatment program is not
satisfactorily completed, the attachment of the ‘sex offender’
label to the targeted inmate has a practical and inevitable
coercive effect on the inmate’s conduct.”) (emphasis in original).
t
iF
App. 17
Id. at 435. The Court held, however, that Murphy’s
confessions were not compelled because there was “no
suggestion that his probation was conditional on his
waiving his Fifth Amendment privilege.” Id. at 437.11
While both Murphy and the case at hand involve the
issue of prosecution based on criminal admissions made
during a sex offender treatment program, Murphy's “clas-
sic penalty” scenario does not apply here. A probationer
or parolee has already achieved liberty, and thus has an
expectation of retaining it. An inmate who has not been
granted parole has no such expectation. See Greenholtz,
442 U.S. at 9 (“There is a crucial distinction between
being deprived of a liberty one has, as in parole, and
being denied a conditional liberty that one desires.”).
Moreover, the parole board has already weighed the
safety risk posed by the probationer or parolee and
decided that he or she is fit to rejoin the community.
Before release, an inmate has not passed this threshold
test. In Greenholtz, the Court viewed these differences as
support for its holding that inmates do not have a consti-
tutional due process right to parole, in contrast to already
released offenders, who do have due process rights when
the state seeks to revoke their parole or probation. See id.
at 9. Similarly, a treatment program that conditioned par-
ticipation on incriminating admissions might violate the
Fifth Amendment if that program was in turn a condition
of probation or of maintaining parole, but a program that
1 Of course, the quoted statement in Murphy is 17-year-old
dictum, and we do not know how the present Supreme Court
would view disclosure obligations imposed on parolees.
Compare Asherman v. Meachum, 957 F.2d 978 (2d Cir. 1992).
App. 18
conditioned participation on incriminating admissions as
a condition of obtaining release on parole does not. The
case law recognizes this distinction. Following Murphy,
some courts have found Fifth Amendment violations
where sex offenders were required to disclose past mis-
conduct for treatment programs that were a condition of
probation or a court-suspended sentence. See Mace v.
Amestoy, 765 F.Supp. 847, 850 (D. Vt. 1991); State v. Fuller,
915 P.2d 809, 814 (Mont. 1996); State v. Imlay, 813 P.2d 979,
985 (Mont. 1991); State v. Kaquatosh, 600 N.W.2d 153, 158
(Minn. Ct. App. 1999); cf. United States v. Davis, 2001 WL
224550 *2 (1st Cir. 2001) (probationer free to challenge
revocation of supervised release as a penalty for exercise
of Fifth Amendment privilege should revocation occur);
but see Asherman v. Meachum, 957 F.2d 978 (2d Cir. 1992)
(en banc). But courts have denied claims where treatment
programs were a condition of initial parole eligibility. See
Doe v. Sauer, 186 F.3d 903 (8th Cir. 1999); Russell v. Eaves,
722 F. Supp. 558 (E.D. Mo. 1989).
The second factor that mitigates the burden imposed
by the SOP’s disclosure requirement is the relatively vol-
untary nature of the plaintiffs’ decision about whether to
participate in the program. The relevant precedent is Ohio
Adult Parole Authority v. Woodard, 523 U.S. 272 (1998).
Woodard, who had been sentenced to death, said that
Ohio’s clemency process violated his Fifth Amendment
rights by forcing him to answer questions at his one
guaranteed clemency interview, or, if he remained silent,
permitting his silence to be used against him. He argued
that the “interview unconstitutionally condition[ed] his
assertion of the right to pursue clemency on his waiver of
the right to remain silent.” Id. at 285-86.
App. 19
The Court rejected this argument on the ground that
Woodard was not required to attend or speak at his
clemency hearing. The Court said: “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.” Id. at 287. The
Court recognized that Woodard faced a choice between
“providing information to the [Parole] Authority - at the
risk of damaging his case for clemency or for postconvic-
tion relief — or of remaining silent.” Id. at 287-88. But that
choice, despite its consequences, did not support a claim
within the meaning of the Fifth Amendment’s self-incrim-
ination clause. The Court said that the “pressure to speak
in the hope of improving [respondent’s] chance of being
granted clemency does not make the interview com-
pelled.” Id. at 288.
Whether the choice that the plaintiffs here face is
voluntary in a meaningful sense seems to wus a closer
question. By making the admissions required by the SOP,
the plaintiffs risk not only damaging their cases on
appeal, but also exposing themselves to future prosecu-
tion. If the plaintiffs refuse to speak, they face the strong
possibility of serving more years in prison than they
otherwise would. Still, like Woodard, the plaintiffs have a
choice about participating in the SOP, despite the conse-
quences that follow from that choice. The plaintiffs’
choice about whether to disclose past misconduct is vol-
untary as Woodard understands the term.
The third factor we consider is whether the denial of
parole follows automatically from the plaintiffs’ refusal to
App. 20
speak. Some of the plaintiffs testified that prison officials
told them that they would not be granted parole unless
and until they completed the SOP, and the defendant does
not dispute that completion of the SOP functions as a de
facto requirement of parole for most New Hampshire sex
offenders. At the same time, the defendant has shown that
a few inmates who have not completed the SOP receive
parole each year under special circumstances.!2 These
unusual grants of release are possible because New Hamp-
shire’s parole statute nowhere states that the board must
reject a parole applicant because he has not completed the
SOP. As we have noted, New Hampshire’s parole statute
gives the parole board broad discretion to decide whether
an inmate is likely to obey the law and observe the terms
of his release. See Baker, 513 A.2d at 960.
The distinction between a highly probable de facto
requirement and a statutorily mandated one has legal
significance. In the early Supreme Court cases that we
have discussed, the state imposed automatic penalties on
those who refused to waive their right against self-
incrimination. The police officers in Gardner and Garrity
and the city employees in Uniformed Sanitation Men Asso-
ciation were discharged because they invoked their Fifth
Amendment rights and refused to testify. The lawyer in
Spevack was disbarred for the same reason. In Turley and
Cunningham, the Court declared unconstitutional New
York statutes that automatically stripped government
12 At the preliminary injunction hearing, a parole board
official testified that one offender who had been released was
convicted of a relatively minor offense and had an elderly, blind
mother for whom he was the sole provider.
App. 21
contracts and political party office from anyone who
refused to waive his or her immunity.
By contrast, Baxter v. Palmigiano, 425 U.S. 308 (1976),
concerned the question of whether prison officials could
draw an adverse inference from an inmate’s silence at a
disciplinary proceeding. The Court held that the Fifth
Amendment did not forbid the state from drawing such
an inference, given the civil nature of the disciplinary
proceeding.'° The Court distinguished Baxter from its
previous holdings on the ground that the state did not
require Palmigiano to waive his privilege, but rather said
that his silence could be used against him if he did not
waive it. In addition, Palmigiano could not be “automat-
ically found guilty” as a consequence of his refusal to
testify because prison regulations required that substan-
tial evidence support a disciplinary decision. Id. at
317-318.14 In finding that drawing such an inference
was permissible, the Court noted that the state had not
“insisted or asked” that the defendant waive his Fifth
13 Baxter noted that no criminal proceedings were pending
against Palmigiano and distinguished the case from earlier
holdings in part on that ground. See Baxter, 452 U.S. at 317.
However, this court has applied Baxter in cases involving
criminal charges. See, e.g., United States v. Stein, 233 F.3d 6, 16n.5
(1st Cir. 2000).
14 Cunningham distinguished Baxter on this ground, stating:
“Respondent’s silence in Baxter was only one of a number of
factors to be considered by the finder of fact in assessing a
penalty, and was given no more probative value than the facts of
the cases warranted; here, refusal to waive the Fifth
Amendment privilege leads automatically and without more to
imposition of sanctions.” Cunningham, 431 U.S. at 808 n.5.
App. 22
Amendment privilege. Id. at 317. Nor was the defendant
“in consequence of his silence automatically found guilty
of the infraction with which he has been charged.” Id. On
the ground that an inmate’s silence “in and of itself” did
not trigger a sanction, the Court distinguished Baxter
from earlier cases such as Garrity and Turley. Id. at 317-18.
We recently relied on Baxter and its reading of prece-
dent in rejecting an attorney’s claim that her testimony
before the Massachusetts Board of Bar Examiners was
coerced because she believed that she would be disbarred
if she remained silent. See United States v. Stein, 233 F.3d 6
(1st Cir. 2000), petition for cert. filed, (U.S. Feb. 26, 2001)
(No. 00-1354). We discussed the automatic penalties faced
in Gardner and Garrity, and concluded:
Where, however, invocation of the Fifth Amend-
ment does not, by itself, result in forfeiture of
the job or license in question, the fact that claim-
ing the Fifth may, as a practical matter, result in
damage to one’s chances of retaining the privi-
lege at stake does not necessarily establish a
constitutional violation.
Id. at 15. Three related facts led us to reject the
attorney’s claim. She was not subject to automatic disbar-
ment for remaining silent; the Board of Bar Examiners
was not required to disbar her; and the board had no
formal rule or unwritten policy or practice of disbarring
attorneys for invoking their Fifth Amendment privilege.
See id. at 16.15
15 The Second Circuit relied on a related rationale in two
cases cited by the defendant, Asherman v. Meachum, 957 F.2d 978
(2d Cir. 1992) (en banc), and Johnson v. Baker, 108 F.3d 10 (2d Cir.
App. 23
Parallel facts are present here. The plaintiffs do not
automatically lose parole eligibility because they remain
silent, the parole board is not required to deny them
parole, and the board has no formal rule denying parole
to sex offenders who do not complete the SOP. See, e.g.,
Lile, 224 F.3d at 1182 (inmates required to admit past
misconduct for admission to a sex offender treatment
program could not show Fifth Amendment compulsion
based on denial of parole because they were not required
to complete the treatment program for parole eligibility).
According to the plaintiffs, the board does have such an
unwritten policy or practice. But the defendant in Stein
made a similar argument to no avail, and we see no
reason to distinguish this case on that ground. It is
entirely permissible for a parole board to take into
account an inmate’s efforts to rehabilitate himself by par-
ticipating in a prison program designed to address his
prior criminal conduct. But to say that the parole board
1997). In Asherman, the court found that revocation of a
prisoner’s supervised home release for his refusal to answer
questions at a psychiatric evaluation did not violate the Fifth
Amendment. In Johnson, the court found that an inmate’s Fifth
Amendment rights were not violated by a sex offender
treatment program that required admissions of past
misconduct, and that was a prerequisite for a program that
allowed inmates to spend extended time with their families.
Both cases distinguished between a state’s adverse action
against an individual for invoking the right to self-
incrimination and an action taken “for failure to answer a
relevant inquiry.” Asherman, 957 F.2d at 982. The court found
that the inquiries made of the defendants in these cases were
relevant to the state’s public responsibilities. Id. at 983. In
Johnson, these responsibilities concerned sex offender
rehabilitation. See Johnson, 108 F.3d at 11.
App. 24
may consider an inmate’s completion of a prison treat-
ment program is not to say that it must make a decision
on that basis. That the board often weighs heavily com-
pletion of the SOP in deciding whether to parole sex
offenders does not change the calculation. See Stein, 233
F.3d at 17 n.6 (fact that defendant “could have had good
reason to fear disbarment if she did not testify is not the
same as being faced with automatic disbarment for fail-
ure to testify”); United States v. Indorato, 628 F.2d 711, 716
(1st Cir. 1980) (fear of punishment as a result of invoking
the Fifth Amendment does not protect against subsequent
use of self-incriminating statements at a criminal trial).
3. Reasonable Alternatives
The third step under Turner requires us to consider
whether reasonable alternatives exist for the government
to achieve its ends without significant cost or impairment
to the governmental interest at stake.
Some states address the incrimination dilemma
posed by sex offender treatment programs by asking
inmates seeking treatment only to admit to misconduct of
which law enforcement officials are already aware. See
Neal v. Shimoda, 131 F.3d 832, 833 n.18 (9th Cir. 1997)
(citing provision of sex offender consent to treat contract
stating, “I understand that I am not required to provide
information about crimes that no one knows about”);
Russell v. Eaves, 722 F. Supp. 558, 560 (E.D. Mo. 1989).
Courts have also suggested that states grant use immu-
nity to sex offenders before requiring them to disclose
past misconduct during the course of treatment. See Lile,
App. 25
224 F.3d at 1192; Mace, 765 F. Supp. at 852; Fuller, 915 P.2d
at 816; Imlay, 813 P.2d at 985.
A grant of limited use immunity need not conflict
with public safety, since it allows the state to prosecute
the recipient “for any crime of which he may be
guilty . . . provided only that his own compelled testi-
mony is not used to convict him.” Cunningham, 431 U.S.
at 809 (comparing use immunity to broader transactional
immunity, which immunizes witnesses from prosecution
for any transaction about which they testify). Granting
use immunity may in fact further the state’s goal of
rehabilitation by encouraging inmates to admit their sex
offenses, thus removing an obstacle to treatment. See Lile,
224 F.3d at 1192. Use immunity is the solution proposed
by commentators concerned about the tension between
an inmate’s right against self-incrimination and the
State’s interest in pressing sex offenders to admit past
misconduct as a first step toward effective treatment. See
Shevlin, supra note 6, at 486; Kaden, supra note 6, at 350;
Solkoff, supra note 6, at 1444. In his testimony at the
preliminary injunction hearing, SOP Director Lance Mes-
singer expressed similar concerns, saying that he tries to
obtain use immunity for inmates when he thinks they
could be prosecuted on new charges based on informa-
tion disclosed during treatment.
This may indeed be a desirable outcome. But we
agree with the district court that the decision about
whether to grant immunity to sex offenders is a policy
choice that lies in the state’s hands. We think that it is for
New Hampshire to say whether it could do so without
impairing the governmental interest at stake.
aS ee
App. 26
4. Conclusion under Turner
Our Turner analysis reflects the closeness of the Fifth
Amendment self-incrimination question presented here.
Given the stakes in parole and the avoidance of further
prosecutions, the plaintiffs do suffer some burden in the
exercise of their Fifth Amendment rights when they must
choose between declining to participate in the SOP, which
significantly enhances their chances for paroie, or disclos-
ing other criminal conduct. The availability of use immu-
nity at least suggests the possibility of an alternative
means of advancing the state’s interest in securing inmate
participation in the SOP without necessarily compromis-
ing future prosecutions for other instances of sexual mis-
conduct.
On the other hand, the state’s interest in reducing the
recidivism of sex offenders is substantial. There may be
undesirable penological and law enforcement implica-
tions to the grant of use immunity in the sensitive context
of sexual misconduct cases that we do. not fully appreci-
ate. The burden on the exercise of the Fifth Amendment
rights of the plaintiffs is lessened significantly by the
factors we have cited: the denial of parole does not
impose a new penalty on the plaintiffs, the plaintiffs may
choose not to participate in the SOP, and the denial of
parole does not automatically follow from a decision not
to participate.
Weighing these factors, and drawing upon the mean-
ing of compulsion under the Fifth Amendment developed
by the precedents we have cited, we conclude that the
reduced likelihood of parole for refusing to participate in
the SOP does not constitute a penalty sufficient to compel
<<<
App. 27
incriminating speech in violation of the Fifth Amend-
ment.
B. Prison Housing Transfer
anal a” sain
The alternate basis for the plaintiffs’ claim of compul-
sion is the transfer from South Unit to Hancock Building
| that often follows a refusal to participate in the SOP. The
| plaintiffs claim the transfer is a penalty for Fifth Amend-
ment purposes because it significantly affects their living
circumstances. This question is not close.
Plaintiffs’ preference for South housing is under-
standable. At the preliminary injunction hearing, prison
officials testified that Hancock is the prison’s “low-rent
district” and compared South to a hotel. The plaintiffs
cite several advantages of living in South. They have
greater outdoor privileges; they live in two-man rather
than eight-man cells; they live on smaller “pods,” or
living groups. As evidence that the move to Hancock is
punitive, the plaintiffs argue that such transfers are used
to punish inmates who break the rules. Some of the
plaintiffs also said that even though both facilities are
classified as medium security, they feel safer at South
because most of the other inmates are also sex offenders.
In Hancock, where they are surrounded by violent and
drug offenders, they are targets of harassment and
assault.
Se eo ets Wrenn
oe ee
The plaintiffs’ claim that the transfer from South to
Hancock is a penalty for Fifth Amendment purposes fails
under the Turner analysis. First, the state has a valid
governmental interest in controlling where prisoners will
RR ek, ARs eal en nee Cre ae ml ee ms he ln
App. 28
be housed. Once an offender has been sentenced, New
Hampshire gives broad discretion to prison officials over
the “terms, conditions, and place of incarceration.” State
v. Peabody, 438 A.2d 305, 308 (N.H. 1981); see also N.H.
Rev. Stat. Ann. §§ 651:25. At the hearing on the plaintiffs’
petition for injunctive relief, prison officials testified that
they offer housing transfers as an incentive to encourage
inmates to act in particular ways. Prisoners may earn a
place in South because they have a clean disciplinary
record or because they participate in a treatment program
like the SOP. In either case, the transfer to South is a
benefit conferred on inmates who earn it. This kind of
reward system easily meets Turner’s legitimate penologi-
cal interest standard.
The second and third Turner factors also weigh
against the plaintiffs. The quality-of-life differences
between South and Hancock are not severe enough to
burden the exercise of the plaintiffs’ constitutional rights.
Nor is there a reasonable alternative to giving prison
officials broad discretion over inmate housing. For the
reasons stated, the housing transfers do not rise to the
level of a penalty that establishes Fifth Amendment com-
pulsion. 16
16 We distinguish’ this case from Lile v. McKune, 224 F.3d
1175 (10th Cir. 2000), in which the Tenth Circuit found a Fifth
Amendment violation where sex offenders who refused to
disclose their past misconduct in order to participate in a prison
treatment program were automatically transferred from a
medium to a maximum security facility. The transfer resulted in
loss of the following privileges: personal television; limited
access to prison organizations, activities, gym, and yard;
reduction in spending allowed in the canteen per pay period
remand Rowan RAD it ata.
App. 29
IV.
We are unpersuaded by the plaintiffs’ claim that their
Fifth Amendment right against self-incrimination was *
violated by New Hampshire’s requirement that they dis-
close their histories of sexual misconduct to participate in
a prison treatment program that affects their chances of
obtaining early release on parole and of maintaining resi-
dence in desired prison housing. The defendant is enti-
tled to judgment as a matter law. We affirm the district
court.
Affirmed.
from $140 to $20; reduction in pay and intake property;
restricted visiting privileges. See id. at 1181. The consequences
of the transfer described in Lile are more severe than those the
plaintiffs say accompany a transfer from South to Hancock. In
addition, the transfer in Lile automatically followed from an
inmate’s decision not to pursue treatment, whereas the transfers
to Hancock complained of here are likely rather than automatic.
See id. ;
App. 30
APPENDIX B
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Wayne Ainsworth, et al.,
Plaintiffs Civil No.
. 99-447-M
Opinion No.
Edda Cantor, Acting 2000DNH121
Commissioner, New Hampshire
Dept. of Corrections,
Defendant
ORDER
(Filed May 18, 2000)
Plaintiffs, a group of 23 inmates at the New Hamp-
shire State Prison, filed this civil rights action seeking a
declaration that aspects of the prison’s sexual offender
treatment program violate their Fifth Amendment right
against compelled self-incrimination. They also seek pre-
liminary and permanent injunctive relief.
Plaintiffs say the sexual offender treatment program
violates their rights against self-incrimination because
they must fully disclose their history of sexual miscon-
duct, including uncharged criminal conduct, as a condi-
tion of admission. And, they claim that they are
“compelled” to participate in the sexual offender pro-
gram (and, in so doing, provide potentially incriminating
evidence against themselves) because, unless they partici-
pate: (1) they are subjected to punitive transfers within
the prison; and (2) are not granted parole.
App. 31
On February 3, 2000, the Magistrate Judge issued a
Report and Recommendation, recommending that the
court grant plaintiffs’ request for a preliminary injunc-
tion, enjoining defendants from “conditioning admission
to the SOP upon admission by plaintiffs to uncharged
criminal conduct, unless plaintiffs are immunized from
use in any way of those admissions in any subsequent
criminal proceedings.” Report and Recommendation
(document no. 17) at 29. Pending before the court are the
parties’ objections to various aspects of that Report and
Recommendation, as well as defendant’s motion to dis-
miss.
Background
In order to participate in the prison’s sexua! offender
treatment program, an inmate nuust, among other things,
freely and openly accept responsibility for his past sexual
misconduct (both that underlying his conviction(s), as
well as any uncharged misconduct). In the professional
judgment of those administering the program, such can-
dor is essential to effective treatment. Beyond obtaining
effective treatment, however, participation in the pro-
gram can bring more concrete benefits as well for, gener-
ally speaking, the parole board rarely grants parole to a
sexual offender if he has not successfully completed that
program. So, the chances for parole substantially increase
for those sexual offenders who do choose to participate
effectively. On the other hand, if an inmate denies his
offense conduct, or refuses to candidly disclose and
accept responsibility for all past sexual misconduct, he
will not be admitted to the sexual offender program, is
unlikely to be granted parole, and will probably be
App. 32
required to serve his full sentence. There are, however,
exceptions to the general rule - the parole board has, on
occasion, paroled sexual offenders who did not suc-
cessfully complete the program.
Discussion
I. Defendant’s Motion to Dismiss.
Plaintiffs argue that the disclosure requirement oper-
ates to compel them to provide incriminating evidence
against themselves, in violation of the Fifth Amendment's
protection. They say that if they refuse to acknowledge
their histories of sexual misconduct, they are refused
admission to the program and that, in turn, has substan-
tial adverse consequences. So, in effect, they are “com-
pelled” to provide self-incriminating statements because
failing to do so results in a form of punishment. First,
they say that if they do not participate in the sexual
offender program, they are subject to transfer from one
cell block to another, less desirable, cell block. Next, they
claim that failure to fully disclose past sexual misconduct
precludes admission to or completion of the program,
which effectively precludes parole, which means they
will be imprisoned for a longer period than otherwise
would be the case. Neither argument, however, has merit.
A. Eligibility for Parole.
That an inmate will likely not be granted parole until
he completes the sexual offender program does not,
under the circumstances of this case, implicate constitu-
tional concerns. Both this court and the New Hampshire
App. 33
Supreme Court have addressed this issue on several occa-
sions. The reasoning underlying the holdings in those
opinions need not be recounted again. See Wellington v.
Brodeur, No. 96-189-M (D.N.H. Dec. 30, 1996); Knowles v.
Cunningham, No. 96-228-JD (D.N.H. Jan. 24, 1997); Well-
ington v. Commissioner, 140 N.H. 399 (1995); Knowles v.
Warden, N.H. State Prison, 140 N.H. 387 (1995).
It is enough to note that prisoners have no constitu-
tionally protected liberty interest in parole. Nor does the
prison violate an inmate’s Fifth Amendment rights by
conditioning admission to its sexual offender program
upon the inmate’s disclosure and acceptance of respon-
sibility for all past sexual misconduct (both charged and
uncharged). Plaintiffs are not “compelled” to relinquish
their Fifth Amendment rights by the program’s require-
ments because participation in the sexual offender pro-
gram is entirely voluntary. Thus, an inmate may freely,
and without coercion, determine whether it is in his best
interest to participate in that program (and openly dis-
cuss his history of sexual misconduct), or decline to par-
ticipate, hoping that he will be among the relatively few
inmates granted parole notwithstanding their failure to
complete the program. It may be a difficult choice for
plaintiffs - some may rationally choose to avoid the risks
of full disclosure at the cost of a realistic chance for
parole; others may accept those risks to obtain valuable
help and enhance their chances for parole. But, whether
the State’s policy choices in this regard (presumably the
State would want to encourage every sexual offender to
undergo treatment before release) are wise or productive
is not at issue here. Those policy choices belong to the
App. 34
State, and the State’s requirements do not violate any
federal constitutional guarantees.
At this juncture, it is probably worth clarifying some
confusion in the record by noting that plaintiffs do not
claim that they are being denied parole hearings as a
result of their failure to complete the sexual offender
program. As defendant readily concedes, under New
Hampshire law all inmates are entitled to a parole hear-
ing after they have completed the minimum term of their
sentence, even if they are sexual offenders who have not
completed the sexual offender program.
What plaintiffs do claim is that satisfactory comple-
tion of the sexual offender program “is a de facto require-
ment of parole,” saying that it is “common knowledge
that a sex offender will not be paroled until he has
completed the program.” Amended Petition for Declara-
tory and Injunctive Relief (document no. 13) at 7. Plainly,
however, evidence introduced at the preliminary injunc-
tion hearing flatly refutes plaintiffs’ claim. Some inmates
(albeit relatively few) are paroled notwithstanding their
failure to complete the program, though that fact is not
critical because no inmate enjoys a right to parole.
Returning to defendant’s motion to dismiss, however,
it is clear that the State may legitimately consider an
inmate’s failure to complete the sexual offender program
as a factor counseling against granting that inmate parole.
See Brooker v. Warden, No. 98-466-JD, slip op. at 13
(D.N.H. June 22, 1999). See also Doe v. Sauer, 186 F.3d 903,
906 (8th Cir.1999) (“the denial of parole is permissible if it
is based on the prisoner’s refusal to participate in his
rehabilitation and not based on his invocation of his
App. 35
privilege.”). That the State considers an inmate to be a
more attractive candidate for parole if he completes the
sexual offender program, a point that hardly seems argu-
able in light of the State’s interest in protecting the pub-
lic, does not amount to unconstitutional “compulsion” to
participate in the treatment program. As this court
(DiClerico, J.) held in Brooker:
A voluntary statement or interview .. . even
when given in the hope of improving the
inmate’s chances for parole, is not compelled
and, therefore, is not protected by the Fifth
Amendment. . . . Offering the possibility of
earning a benefit is certainly an incentive to
participate, but it is not coercion. In other
words, the possibility of parole is a carrot, not a
stick.
Brooker v. Warden, No. 98-466-JD, slip op. at 12 (D.N.H.
June 22, 1999) (citations omitted). See generally Ohio Adult
Parole Authority v. Woodard, 523 U.S. 272 (1998) (holding
that inmate faced with decision to accept death sentence
or voluntarily testify at clemency hearing, at which he
would likely be asked to provide self-incriminatory infor-
mation, was not “compelled,” within the meaning of the
Fifth Amendment, to incriminate himself). Sentenced
prisoners are not deprived of any constitutional right
under these circumstances if they are required, or choose,
to serve the full sentence lawfully imposed.
Little more need be said. This court (and others) have
previously addressed and rejected plaintiffs’ claim that
conditioning participation in the sexual offender treat-
ment program on therapeutic cooperation, i.e. acceptance
of responsibility for all prior sexual misconduct, amounts
App. 36
to a Fifth Amendment violation. As to that claim, plain-
tiffs’ petition fails to state a viable cause of action.
B. Transfers for Non-Participating Inmates.
Plaintiffs’ remaining argument is that they are being
unconstitutionally compelled to provide self-incriminat-
ing statements in order to avoid being transferred from
the prison’s South Unit to H-Building. Specifically, they
say:
Most sex offenders (and most plaintiffs) are clas-
sified as medium custody inmates and are
housed in a unit within the state prison called
“South.” South’s inmate population consists of
about 90% sex offenders. Those who “refuse”
the SOP (by denying guilt, pursuing appeals or
collateral attacks on their convictions, and/or
refusing to disclose other victims or offenses)
are “punished” by being transferred from South
unit to Hancock Building, or “H-Building.”
Those who fail the SOP once admitted (e.g., for
refusing to disclose other victims, minimizing
guilt, etc.) are also transferred to H-Building.
Although H-Building also contains medium
security inmates, it contains the more trouble-
some medium custody inmates and the condi-
tions of H-Building and the consequences of
being moved to H-Building are sufficiently more
restrictive than South, so as to give rise to the
compulsion to invoke the Fifth Amendment
privileges.
Amended petition at 10-11.
Se ee ee me ee! FP ay eh ge
App. 37
While thoughtfully presented, plaintiffs’ argument
lacks force. Just as inmates have no constitutionally pro-
tected interest in being confined in a particular prison,
they have no constitutionally protected interest in being
confined in a particular section or cell block of a prison.
See Meachum v. Fano, 427 U.S. 215, 224 (1976) (“The initial
decision to assign the convict to a particular institution is
not subject to audit under the Due Process Clause,
although the degree of confinement in one prison may be
quite different from that in another. The conviction has
sufficiently extinguished the defendant's liberty interest
to empower the State to confine him in any of its
prisons.”). But cf. Vitek v. Jones, 445 U.S. 480, 493 (1980)
(holding that the transfer of an inmate from a prison to a
mental hospital did implicate a liberty interest because
placement in the mental hospital was “not within the
range of conditions of confinement to which a prison
sentence subjects an individual,” and because it brought
about “consequences . . . qualitatively different from the
punishment characteristically suffered by a person con-
victed of crime.”).
Here, while plaintiffs claim that life in H-Building is
less pleasant than that in South, they do not assert that it
is “qualitatively different from the punishment charac-
teristically suffered by a person convicted of a crime.”
That prison officials might choose to reward those
inmates who elect to participate in the sexual offender
program by assigning them to South also does not
amount to state-sanctioned “compulsion” to participate
in program. As Judge DiClerico noted, “[oJ]ffering the
possibility of earning a benefit is certainly an incentive to
participate, but it is not coercion.” Brooker, slip op. at 12.
App. 38
To be sure, some courts have concluded that prison
authorities violate an inmate’s Fifth Amendment rights
when they punish him or withhold a benefit because he
invokes his privilege against self-incrimination in a con-
text in which he might expose himself to criminal lia-
bility. See McMorrow v. Little, 109 F.3d 432, 435 (8th
Cir.1997) (collecting cases). Here, however, plaintiffs are
exposed to transfer from South not because they have
invoked Fifth Amendment rights, but because they have
chosen not to enroll (or meaningfully participate) in the
sexual offender program. The distinction is an important
one because prison authorities may deny benefits to
inmates who refuse to participate in prison programming
or who refuse to divulge information essential to the
proper administration of that program. See, e.g., Asherman
v. Meachum, 957 F.2d 978, 982-83 (2d Cir.1992) (en banc)
(concluding that prison authorities were entitled to
revoke an inmate’s supervised home release after he
refused to discuss the details of his criminal conduct,
notwithstanding the fact that providing such details
entailed the risk of self-incrimination); McMorrow, 109
F.3d at 436 (“prison officials may constitutionally deny
benefits to a prisoner who, by invoking his privilege
against self-incrimination, refuses to make statements
necessary for his rehabilitation, as long as their denial is
based on the prisoner’s refusal to participate in his reha-
bilitation program and not his invocation of his privi-
lege.”).
As noted above, plaintiffs do not claim that they are
being transferred as a form of punishment for having
invoked their Fifth Amendment rights. Instead, they say
that they are subject to transfer for failure to enroll in (or
App. 39
satisfactorily complete) the sexual offender program.
Transfers within the prison on that basis do not infringe
plaintiffs’ constitutionally protected rights. Nor do such
transfers constitute any sort of “compulsion” to waive
their Fifth Amendment rights.
II. The Report and Recommendation.
At this juncture, the court pauses to address the
Magistrate Judge’s Report and Recommendation because,
if one of the premises underlying that report is correct, it
obviously undermines the court’s disposition of defen-
dant’s motion to dismiss, as well as its decision not to
accept the Magistrate Judge’s recommendation that a pre-
liminary injunction be issued.
Although not advanced by plaintiffs in their petition,
the Magistrate Judge considered whether prison authori-
ties could lawfully refuse to even consider an inmate for
parole if he had not completed the sexual offender pro-
gram. Defendant has readily acknowledged that, under
New Hampshire law, inmates do enjoy a statutory right
to a parole hearing following completion of the minimum
term of their sentence (it is parole itself, not a parole
hearing, to which they have no right). Consequently, as
the Magistrate Judge noted, if prison authorities refused
to grant a statutorily qualified inmate a parole hearing
until he first completed the sexual offender program, that
inmate might have a legitimate basis for complaint.
However, the evidence adduced at the hearing sug-
gests that the prison does, in fact, consider all eligible
inmates for parole (and occasionally actually grants
parole to sexual offenders who have not completed the
ee
App. 40
treatment program). No evidence was presented estab-
lishing that any plaintiff was eligible for, but was denied,
a parole hearing simply because he had not completed
the sexual offender program. John Eckert, Executive
Assistant to the Parole Board, testified that successful
completion of the sexual offender program is just a factor,
among others, the Board considers when deciding
whether to grant parole, albeit a significant factor. He
also testified that “a handful [of inmates] a year, two or
three perhaps” are granted parole notwithstanding the
fact that they have not completed the program. (That
number represents somewhere between 3% and 6% of all
sexual offenders paroled annually.) Lance Messinger,
Director of the Sexual Offender Program, provided simi-
lar testimony. Finally, none of the plaintiffs who testified
at that hearing said that he had been denied a parole
hearing simply based upon his refusal to participate in the
sexual offender program. In fact, plaintiffs’ amended
petition acknowledges that at least one plaintiff was
granted a parole hearing notwithstanding his failure to
participate in the program. See First Amended Petition, at
para. 4(q).
In any event, plaintiffs’ petition does not assert that
they have unlawfully been denied parole hearings. See
generally First Amended Petition for Declaratory and
Injunctive Relief (claiming only that satisfactory comple-
tion of the sexual offender program is a de facto condi-
tion of parole, not a precondition to receiving a parole
hearing). A claim that plaintiffs have been denied all
consideration for parole describes a different case that
must be presented in a new complaint; of course, under
the strictures of Fed.R.Civ.P. 11. At this point, however, it
a
App. 41
would be inappropriate for the court to rule on a claim
that was neither presented in plaintiffs’ petition nor
addressed in the parties’ subsequent filings.
III. Fifth Amendment Concerns and Immunizing
Inmates.
Finally, the court briefly addresses a concern identi-
fied in the Report and Recommendation. The Magistrate
Judge alluded to a problem arising from the requirement
that participants in the sexual offender program disclose
and accept responsibility for all past sexual misconduct,
including both charged and uncharged conduct. Because
inmates are not granted any sort of immunity from pros-
ecution (and because evidence produced at the hearing
suggests that they might well be prosecuted for such
conduct), the program’s requirements create a strong dis-
incentive for some inmates to participate. That disincen-
tive is unfortunate (and perhaps unintended) since
Statistics maintained by the State suggest that partici-
pants in the sexual offender program are far less likely to
re-offend than are those offenders who receive no treat-
ment. The State’s data suggest that the public may be
better served if, prior to his release, a sexual offender
participates in (and successfully completes) the treatment
program.
Nevertheless, whether to grant immunity (and
thereby eliminate an impediment to some inmates’ mean-
ingful participation) is a policy matter committed to the
State’s discretion. This court cannot prescribe the criteria
for admission to the sexual offender treatment program,
or extend immunity to its participants.
App. 42
Conclusion
Defendant’s motion to dismiss (document no. 8) is
granted. Plaintiffs’ claims that the completion of the sex-
ual offender program is a “de facto” condition of parole
and that the risk of transfer within the prison amount to
unconstitutional compulsions to waive their Fifth
Amendment right against self-incrimination fail to state
viable causes of action. The Clerk of Court shall enter
judgment in accordance with this order and close the
case.
SO ORDERED.
/s/ Steven J. McAuliffe
Steven J. McAuliffe
United States District Judge
May 18, 2000
cc: Michael J. Sheehan, Esq.
Daniel J. Mullen, Esq.
App. 43
APPENDIX C
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Wayne Ainsworth, et all.
v. Civil No. 99-447-M
Edda Cantor, Acting Commissioner
N.H. Dept. of Corrections, et al.
REPORT AND RECOMMENDATION
(Filed Febr. 3, 2000)
Plaintiffs are 23 inmates at the New Hampshire State
Prison who brought this action seeking review of the
prison’s sexual offender rehabilitative programs, which
they claim deprive them of their right against self-incrim-
ination in violation of the Fifth Amendment. They moved
for a preliminary injunction, which was referred to me for
a recommendation of disposition. See 28 U.S.C. § 636(b)(1)
(B). An evidentiary hearing was held on December 22,
1999, at which four plaintiffs and four prison officials
testified. After carefully considering the evidence and
legal arguments submitted by both sides, for the reasons
set forth below, I recommend that the motion for prelimi-
nary injunction (documents no. 5), and the amended peti-
tion for injunctive relief (document no. 13), be granted.
Discussion
1. Background
Plaintiffs are all convicted sexual offenders. As part
of its rehabilitation programs, the New Hampshire State
Prison (“NHSP”) offers two sexual offender programs, an
App. 44
“Intensive Sexual Offender Program” and an “Enhanced
Relapse Prevention Program.” See Plaintiffs’ Exhibit 1,
NHSP Sexual Offender Programs manual. The manual
explains “(t]he major difference between the two pro-
grams are quantitative, not qualitative,” as “the basic
admission criteria, program objectives and goals and
completion requirements are the same for both [pro-
grams].” Id. at 10. Accordingly, I will refer to both pro-
grams by the single acronym, the “SOP.”
Most convicted sexual offenders are required to suc-
cessfully complete the SOP before being considered for
parole. Those sexual offenders who participate do so
because participation was required as part of the sentence
imposed, or it was recommended by a prison official, or it
could lead to a reduced sentence or earlier release on
parole. Not all those recommended for the program, how-
ever, actually complete it. There are more inmates who
need the SOP than it can accommodate. As a result,
admission to the program is selective.
Admission to the SOP follows a set procedure. The
inmate must initiate the process, by requesting program-
ming with his correctional counselor or case manager. See
id. at 3. The counselor then submits a referral form to the
program coordinator, who enters the information
received into a sexual offender data base which tracks all
referred offenders. See id. When the inmate is within two
years of his minimum parole date, he is interviewed to
determine whether he meets the program’s eligibility
requirements. Those eligibility requirements include,
among other things, that the inmate “admits offending
[conduct] which is consistent with victim reports.” See id.,
“Selection Criteria.” If he satisfies the other remaining
App. 45
criteria, generally the inmate will be assigned to either
SOP program depending on his treatment needs. See id.
Evidence elicited at the hearing demonstrated that
inmates are not admitted to the SOP if they refuse to
accept responsibility not only for the offense[s] for which
they were convicted, but also for any other reported
offenses.! Plaintiff Donald Carter testified that he has
been denied admission because he refuses to admit to
sexually assaulting a daughter named Kelly. This testi-
mony was substantiated by the prison’s response to his
third request for admission, when Lance Messinger, the
director of the SOP, replied to Carter, “Are you now
willing to admit your offending against Kelly?” Plaintiff's
Exhibit 5. Another plaintiff, Carl Graf, testified that he
has been denied admission to the SOP because he refuses
to accept responsibility for the offense which led to his
incarceration. He had testified at his trial that he was not
guilty of the charges lodged against him, and his convic-
tion is on appeal; however, if he participates in the SOP
he could get two years taken off his minimum sentence.
The remaining two plaintiffs who testified, Wayne
Ainsworth and Kevin Badger, have been denied access to
the SOP because each refuses to admit guilt of their
crimes of conviction because each of them claims to be
innocent.
1 The program anticipates offenders will admit to their
entire deviant sexual history, whether or not known to prison
officials; -however, if specific offenses have been reported by
victims and are, therefore, known by the prison, the evidence
showed that, at a minimum, the NHSP required the offender to
acknowledge that particular behavior.
App. 46
Once in the program, continued acceptance of
responsibility for past sexual misconduct is expected of
the inmate. Messinger testified that being “open and
honest” about past deviant sexual conduct was a critical
component of rehabilitation. See e.g., id. at 9 (listing
among the criteria for program completion acceptance of
“full responsibility .. . for offending without minimizing
or blaming others”). In Phase I of the SOP, clinical group
therapy requires participants to provide “full and open
disclosure, sexual autobiography, contributing factors in
offending.” Id. at 5. These disclosures, however, are not
protected by any grant of immunity or assurance of confi-
dentiality. The SOP “Treatment Contract,” id. at 12, speci-
fically provides for the participant to agree to sign an
“Acknowledgment of Confidentiality” waiver.
Messinger testified that although he is concerned
about how the program affects inmates’ right against self-
incrimination, he does not have the authority to immu-
nize his patients from potential criminal liability for
admissions made in the program. Evidence elicited at the
hearing demonstrated that at least one participant was
prosecuted for an offense admitted during treatment.
Messinger explained that he has a duty to report
uncharged offenses learned of during treatment and,
although he tries to arrange for immunity, the decision
whether to pursue charges lies with the appropriate pros-
ecuting authorities.
John Eckart, the executive assistant to the N.H. Adult
Parole Board, testified that among the factors considered
by the Parole Board is whether the inmate has completed
the SOP and that, as a general rule, a sexual offender will
not be considered for parole unless he has completed the
App. 47
SOP. A few sexual offenders, however, are released with-
out having completed the SOP while incarcerated, but
only about two or three annually. Other sexual offenders
are paroled without completing the SOP if they were not
designated to receive the institutional program, but those
parolees receive community based sexual offender reha-
bilitation programming.?
Finally, the evidence showed that prisoners at the
NHSP are moved from: one building to another for a
variety of reasons, including as incentive for desired
behavior and as punishment for aberrant behavior.
Although plaintiffs claim they are punished for not par-
ticipating in the SOP by being moved from “South”
building, a desired housing location, to “Hancock” or
“H” building, a less desirable alternative, the evidence
failed to substantiate that contention. Both buildings are
medium security housing units, although the testimony
consistently described South as the preferred housing
assignment because of its accommodating features. The
NHSP generally tries to move sexual offenders into South
as an incentive to participate in the SOP, and when such
moves are made others are transferred out of South who
have not cooperated with the prison’s rehabilitation
efforts. The evidence demonstrated that most of the
prison’s sexual offender population is housed in South,
2 Eckart testified that between 55-75 sexual offenders have
been paroled annually since 1996.
3 In fact, the one inmate Eckart spoke of who had just been
released without completing the SOP was required to
participate in a community based sexual offender rehabilitation
program.
ee
App. 48
but sexual offenders are dispersed throughout the institu-
tion. Testimony at the hearing suggested the NHSP had a
policy of transferring uncooperative sexual offenders
from South to Hancock if they refused to participate in
the SOP, but, of the plaintiffs, only Ainsworth has actu-
ally been moved, and it was unclear whether his transfer
was pursuant to that policy. The other plaintiffs who
testified had not been moved because of their nonpar-
ticipation in the SOP.4
\
2. Standard of Review
Whether a preliminary injunction should be issued
depends on the plaintiffs’ showing of (1) their likelihood
of success on the merits of their claims, (2) the potential
for irreparable harm if the injunction is denied, (3) the
balance of hardship to the plaintiffs if the injunction is
denied compared to the defendant’s hardship if it is
granted, and (4) the effect, if any, of the court’s decision
on the public interest. See Ross-Simons of Warwick, Inc. v.
Baccarat, Inc., 102 F.3d 12, 15 (1st Cir. 1996). “Likelihood
of success is the main bearing wall of the four-factor
framework.” Id. at 16 (citing precedent). As a result, if
plaintiffs are unable to convince the court that they are
likely to succeed on the merits, they will not obtain the
injunction sought. See Weaver v. Henderson, 984 F.2d 11, 12
(1st Cir. 1993) (explaining how likelihood of success is the
“sine qua non” of the preliminary injunction analysis).
* Badger and Graf testified they were still housed in South;
Carter has been housed in Hancock since he was first
incarcerated in 1998.
App. 49
In this action, plaintiffs pursue the single issue of
whether the SOP’s “open and honest” requirement vio-
lates the Fifth Amendment by causing them to potentially
incriminate themselves. Plaintiffs are not contending that
they have any liberty interest in parole or in being con-
sidered for parole, or any liberty interest in being housed
in a particular building at the NHSP. Instead, they weave
those issues into their Fifth Amendment claim. They
assert the SOP policy of requiring each participant to
admit to past deviant sexual conduct before admission
into or successful completion of the program exposes
them to potential future criminal liability. They further
contend that the NHSP practice of not considering them
for parole and moving them out of favorable housing
conditions into more restrictive environments if they
refuse to participate in the SOP are sufficiently coercive
responses to their decision not to make certain admis-
sions to constitute the compulsion element of a Fifth
Amendment violation. The success: of plaintiffs’ Fifth
Amendment claim turns on this narrow issue, of whether
the prison’s response to plaintiffs’ refusal to make the
self-incriminating admissions constitutes compulsion.
(a) The Merits of Plaintiffs’ Claims.
The Fifth Amendment of the U.S. Constitution, which
applies to the States through the Fourteenth Amendment,
see Allen v. Illinois, 478 U.S. 364, 368 (1986), provides “No
person .. . shall be compelled in any criminal case to be a
witness against himself... . ” The privilege extends not
just “to answers that would in themselves support a
conviction . . . but likewise embraces those which would
/
App. 50
furnish a link in the chain of evidence needed to pros-
ecute the claimant... .” Hoffman v. United States, 341 U.S.
479, 486 (1951) (discussing the scope of the privilege
asserted before a federal grand jury). It is well-settled
that the privilege
“not only permits a person to refuse to testify
against himself at a criminal trial in which he is
a defendant, but also ‘privileges 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 proceedings.’ ”
Allen, 478 U.S. at 368 (quoting Supreme Court precedent).
The privilege extends to convicted inmates to protect
them from being compelled to make incriminating state-
ments regarding any crime other than that for which they
have been convicted. See Minnesota v. Murphy, 465 U.S.
420, 426 (1984) (discussing the scope of the Fifth Amend-
ment privilege probationers enjoy); see also U.S. v.. Perez-
Franco, 873 F.2d 455, 462 (1st Cir. 1989) (explaining how
defendants who plead guilty are still protected by the
privilege for other crimes that are not part of the agree-
ment); Lile v. McKune, 24 F. Supp. 2d 1152, 1156
(D.Kan.1998) (citing Baxter v. Palmigiano, 425 U.S. 308
(1976) to extend the privilege to inmates).
The Fifth Amendment problem in this case arises out
of the SOP policy of requiring participants to admit to
their deviant sexual history. This policy would violate the
Fifth Amendment if: (1) the SOP program is considered a
“proceeding,” within the meaning of the Fifth Amend-
ment; (2) if the answers sought are self-incriminating; and
(3) if the answers are in some way compelled by the
App. 51
government. The first two elements of a Fifth Amend-
ment claim are readily satisfied based on the facts before
the court; the third element, that of compulsion, however,
is more problematic. Each element is discussed below in
turn.
As part of its selection process and treatment pro-
gram, the SOP requires inmates to admit to and accept
responsibility for all prior deviant sexual behavior,
including unreported or uncharged offenses. Because the
SOP is a structured rehabilitation program with very
specific admission procedures, selection criteria, and
treatment goals and objectives to achieve, see e.g. Plain-
tiffs’ Exhibit 1, I believe it falls within the meaning of an
informal administrative proceeding, see Allen, 478 U.S. at
368, for purposes of this Fifth Amendment analysis. See
Perez-Franco, 873 F.2d at 462 (applying the privilege to an
interview with a probation officer conducted as part of a
pre-sentence report and explaining that the privilege
depends on the incriminating nature of the answers
sought, not on the nature of the proceeding in which the
questions are asked).
Likewise, the requirement that all participants
“admit[ ] offending [conduct] which is consistent with
victim reports,” Plaintiff’s Exhibit 1 at 3, with no grant of
immunity or guarantee of confidentiality, is patently self-
incriminating. The evidence was clear and consistent that
an inmate would have to be “open and honest” about his
entire history of sexual misconduct, including uncharged
or unreported deviant behavior. See e.g. id. at 5 (describ-
ing group therapy in phase I of the program as requiring
“full and open disclosure, sexual autobiography”), 12 (the
App. 52
SOP Treatment Contract’s first condition requires the par-
ticipant to “agree to be complete[ly] open and honest and
assume full responsibility for [his] offenses and [his]
behavior.”). The evidence also clearly and consistently
showed that such admissions could and would be used
against the inmate in future criminal proceedings. See e.g.
id. at 12, Treatment Contract, waiver of confidentiality
provision. Messinger testified that although he has
sought immunity for SOP participants, he has been
unable to guarantee such protection, that he has a duty to
report disclosures made in the SOP, and that the pros-
ecuting authorities determine whether to pursue charges.
Clearly, then, with respect to conduct of which they have
not been convicted, the inmates are required to incrimi-
nate themselves within the meaning of the Fifth Amend-
ment. See Hoffman, 341 U.S. at 486-87 (explaining that the
privilege may be asserted whenever it is “evident from
the implications of the question, in the setting in which it
is asked, that a responsive answer to the question or an
explanation of why it cannot be answered might be dan-
gerous because injurious disclosure could result.”); see
also Allen, 478 U.S. at 368 (citing precedent to demonstrate
the Supreme Court’s well-settled holding that the privi-
lege affords protection where answers might lead to
future criminal proceedings).
The third and final component of a Fifth Amendment
violation, that such self-incriminating statements are
compelled by the government, is the critical element of
plaintiffs’ claim. There is no dispute that participation in
the SOP is entirely voluntary, even if it is recommended
by the NHSP or as part of a sentence, because refusal to
participate merely results in the inmate serving the full
aia Ti saaeaeaaiiemimmneneaenaemmemmemmneaeiimeaememmmmmeanemeiaee
App. 53
sentence originally imposed. The resolution of this case
turns on whether there is any compulsion in this volun-
tary program.
Compulsion has been found where the government
threatens “ ‘potent sanctions,” Lile, 24 F. Supp. 2d at
1158, or some other penalty if the answers sought are not
provided. See Perez-Franco, 873 F.2d at 462-63 (discussing
cases where the Supreme Court has found a Fifth Amend-
ment violation because of the threatened or imposed
penalty for failing to answer). An answer is not volun-
tarily given if it is given only to avoid a penalty, because
that denies the individual a “ ‘free choice to admit, to
deny or to refuse to answer.’ ” Minnesota v. Murphy, 465
U.S. at 429.
In each of the so-called “penalty” cases, the
State not only compelled an individual to
appear and testify, but also sought to induce
him to forgo the Fifth Amendment privilege by
threatening to impose economic or other sanc-
tions “capable of forcing the self-incrimination
which the Amendment forbids.” In most of the
cases, the attempt to override the witnesses’
privilege proved unsuccessful, and the Court
ruled that the State could not constitutionally
make good on its prior threat. These cases make
clear that “a State may not impose substantial
penalties because a witness elects to exercise his
Fifth Amendment right not to give incriminat-
ing testimony against himself.”
Id. at 434 (citations omitted). Thus, if a substantial pen-
alty is likely to result for failing to respond to the ques-
tion asked, the incriminating disclosure is considered
App. 54
compelled, even if it was voluntarily given. See Perez-
Franco, 873 F.2d at 462.
Plaintiffs argue here that the NHSP in fact compels
the self-incriminating statements by (i) conditioning con-
sideration for parole on successful completion of the SOP
and (ii) transferring inmates to less desirable housing if
they refuse to make the admissions and participate in the
SOP. Their housing argument may be summarily dis-
missed, because it is well-settled that inmates have no
constitutional right to any specific housing in any partic-
ular institution. See Olim v. Wakinekona, 461 U.S. 238, 244
(1983) (citing Meachum v. Fano, 427 U.S. 215 (1976) and
Montanye v. Haymes, 427 U.S. 236 (1976) to support the
conclusion that prisoners have no liberty interest protect-
ing them from either intrastate or interstate transfers); see
also State v. Peabody, 121 N.H. 1075, 1078-79, 438 A.2d 305
(1981) (explaining that the warden determines the “terms,
conditions, and place of incarceration once a person has
been sentenced to the New Hampshire State Prison”).
Moreover, the evidence was consistent that the mini-
mal transfers which have been made have been to hous-
ing at the same custody classification. There was no
evidence of punitive transfers having been made as a
result of any refusal to admit prior sexual misconduct.
While one prison building may be more accommodating
than another, absent any evidence of a punitive transfer
into a higher security level unit, the housing decisions
appear to be “ ‘within the normal limits or range of
custody which the conviction has authorized the State to
impose.’ ” Olim, 461 U.S. at 246-47 (quoting Meachum, 427
U.S. at 225). Accordingly, I find plaintiffs have failed to
demonstrate that any transfers, or threat of transfers, of
App. 55
sexual offenders have imposed a “penalty” which could
be understood as compelling them to provide the self-
incriminating statements required by the SOP to establish
a Fifth Amendment violation.
On the other hand, the allegation that plaintiffs are
denied consideration for parole is a more onerous
response. New Hampshire law reflects a clear policy to
release inmates on parole as “a means of supervising and
rehabilitating offenders without continued incarceration
and a means by which prisoners can be aided in the
transition from prison to society.” N.H.Rev.Stat. Ann.
(“RSA”) 651-A:1 (1996). It is well-settled, however, that
release on parole is considered a privilege within the
discretion of the state adult parole board, not a right
prisoners can expect to have protected. See e.g. Baker v.
Cunningham, 128 N.H. 374, 380-81, 513 A.2d 956 (1986)
(holding New Hampshire law does not create a constitu-
tional or statutory right to parole); see also Bussiere v.
Cunningham, 132 N.H. 747, 752-52, 571 A.2d 908 (1990)
(explaining how the parole board rules do not limit the
board’s discretion to give rise to a protected liberty inter-
est in parole). Yet what is at issue here is not the right to
be released on parole, but the right to be considered for
parole. If plaintiffs have some right to be considered for
parole, which the NHSP deprives them of when they
refuse to provide the details of their deviant sexual his-
tory, then the NHSP has created the classic “penalty”
situation which denies plaintiffs of “ ‘the free choice to
admit, to deny, or to refuse to answer,’ ” Perez-Franco, 873
F.2d at 462, that violates the Fifth Amendment.
App. 56
Under New Hampshire law, a prisoner
may be released on parole upon the expiration
of the minimum term of his sentence, minus any
credits received pursuant to RSA 651-A:23, plus
the disciplinary period added to such minimum
under RSA 651:2, Il-e, any part of which is not
reduced for good conduct as provided in RSA
651-A:22, provided that there shall appear to the
adult parole board, after having given the notice
required . . . to be a reasonable probability that
he will remain at liberty without violating the
law and will conduct himself as a good citizen.
RSA 651-A:6, I (1996). This provision also addresses when
inmates serving multiple sentences may first be consid-
ered for parole. See RSA 651-A:6, II. These statutes create
an expectation that any inmate will be considered for, not
released on, parole approximately two years before the
completion of his minimum sentence, adjusted to account
for his prison record.5 Thus while the right to parole must
be earned and is a privilege, see e.g. Bussiere, 132 N.H. at
753, eligibility for parole arises automatically with the
passage of time. See RSA 651-A:6, I. And yet, under the
current system, plaintiffs are not considered for parole
unless they are willing to make incriminating admissions,
° This expectation is bolstered by the parole board’s
practice of, in fact, usually considering sexual offenders for
parole approximately two years before the minimum release
date based on their sentence. See e.g. Plaintiff’s Exhibit 1 at 3
(“When an inmate is within two years of his MPD (Minimum
Parole Date) or possible parole date as determined by possible
sentence reduction, then an interview will be set up to
determine whether or not an offender meets the program
eligibility requirements.”).
Se
App. 57
even though they are statutorily eligible to be considered
for release on parole.
All four plaintiffs who testified at the hearing stated
that they had been denied admission to the SOP because
of their refusal to admit to specific criminal conduct, and
none of them has been considered for parole.6 The New
Hampshire Supreme Court addressed a challenge to the
SOP like that asserted here in Knowles v. Warden, 140 N.H.
387, 666 A.2d 972 (1995). The Court held that the SOP
admission policy did not violate the Fifth Amendment
because the inmate s freedom to choose not to admit his
guilt or not to participate in the SOP eliminated the
element of “compulsion” needed for a Fifth Amendment
violation. “The plaintiff's refusal to admit guilt will not
cause him to serve additional prison time; he simply may
be required to serve the sentence he received originally.”
Id. at 393. In distinguishing a case which found a Fifth .
Amendment violation where probation was revoked for
failing to admit guilt of the crime of conviction, the Court
concluded that a decision-to deny parole was quali-
tatively different from a decision to revoke parole once
granted, since the inmate’s interest in parole before
release is merely a hope. Id.
While that analysis could dispose of the present
~ claim, the facts in Knowles, at least as presented by the
Court, are distinguishable. First and most significantly,
the plaintiff there refused only to accept responsibility for
6 Carter and Graf testified that if they successfully
complete the SOP, not only could they be considered for parole,
but they could petition the court for, in Carter’s case, a
suspension, and in Graf’s case, a reduction, of their sentences.
aii
App. 58
the crimes of which he had been convicted. See id. at 388;
see also Brooker v. Warden, No. 98-466-JD, slip op. at 12-13
(D.N.H. June 22, 1999) (dismissing similar Fifth Amend-
ment challenge to the SOP admissions policy where the
plaintiff was “not compelled to make statements about
other criminal acts”); Knowles v. Cunningham, No. 96-228-
JD, slip op. at 7-8 (D.N.H. Jan. 24, 1997) (similar unsuc-
cessful challenge where petitioner was required to admit
guilt as to only the conduct for which he was convicted).
Since the plaintiffs’ conviction extinguishes their right
against self-incrimination regarding the acts for which \
they were convicted, see Reina v. United States, 364 U.S.
507, 513 (1960); United States v. Johnson, 488 F.2d 1206,
= 1209 (1st Cir. 1973) (“conviction, of course, removed any
claim of privilege based upon liability for that offense”);
see also United States v. Albert, 773 F.2d 386, 389 (1st Cir.
1985) (affirming assertion of privilege not for the crime to
which witness pled guilty but to protect testimony that
could lead to other charges), the problem arises with the
requirement to admit to as yet uncharged crimes. See id.;
see also Johnson, 488 F.2d at 1209-10 (explaining that con-
viction of one crime does not “erase[ ] the privilege as it
relates to others”).
Based on the record before the court, one inmate was
required to do just that and was prosecuted based on his
admissions, and plaintiff Carter has been expected to
admit to criminal conduct his daughter Kelly has
reported.” Carter has been denied admission to the SOP
” The remaining three plaintiffs who testified, Ainsworth,
Badger and Graf, refused to accept responsibility for the crimes
for which they were convicted. Because their right against self-
ee
App. 59
apparently only because he refuses to admit to the con- -
duct Kelly has reported. Yet he testified that if he were to
complete the SOP, the remainder of his sentence would be
suspended. Thus his refusal to admit his guilt with
respect to Kelly, not with respect to the other victims for
whom he was convicted, is penalizing him by eliminating
his ability to have the remainder of his sentence sus-
pended. By contrast to the plaintiff in Knowles, here the
plaintiffs seek protection for admissions regarding unre-
ported and uncharged crimes.
Second, the Court summarized one of the SOP objec-
tive’s as requiring “self-disclosure of the inmates entire
sexual offending history.” Id.; see also Knowles, No. 96-228-
JD, slip op. at 3 n. 1 (finding that disclosure of sexual
history was an objective of the SOP, not a criterion for
admission to it). The evidence at the hearing consistently
demonstrated that the SOP required the offenders to
admit openly their sexual autobiography, as part of the
admission procedure and group therapy. Messinger
incrimination with respect to that conduct was extinguished by
their convictions, see Reina, 364 U.S. at 513, they do not have a
Fifth Amendment claim based on the current record of just that
criminal conduct. Graf, however, testified that because his
conviction is on appeal, and he took the stand during his trial
and denied his guilt, he would not admit to it now. Clearly such
an admission would create the risk of perjury charges based on
his trial testimony. Moreover, there are 19 other plaintiffs in this
action; what their individual circumstances are regarding their
sexual history is not yet in evidence. Messinger’s testimony
substantiated plaintiffs’ allegation that they are required to
admit to conduct which, as yet, may not have been reported, let
alone charged against them. The potential for self-
incrimination, therefore, is real.
App. 60°
clearly testified that offenders were required to be “open
and honest,” which meant specific admissions which
could be, and in fact have been, used against inmates in
other criminal proceedings. These facts were not before
the New Hampshire Supreme Court when it determined
that the SOP policy, as applied to the plaintiff there, did
not compel incriminating answers. Accordingly, I am not
persuaded that the result in Knowles disposes of the issue
presented here.
The facts here demonstrate that sexual offenders may
not be considered for parole if they have not completed
the SOP or, in other words, have not made potentially
incriminating admissions about other crimes they com-
mitted in the past. Although Eckart testified that in a few
exceptional cases sexual offenders have been released
without completing the SOP, the evidence supported the
general rule that sexual offenders must complete the SOP
before the parole board will even consider whether
release on parole would be appropriate.® A policy of
denying consideration for parole if an offender asserts his
Fifth Amendment right may be inferred from the parole
board’s practice, even though it is not explicit in the
parole statute or rules. See Minnesota v. Murphy, 465 U.S.
at 435 (holding that the State there could have created the
“classic penalty situation” “if [it], either expressly or by
implication, asserts that invocation of the privilege would
lead to revocation of probation”).
8 Plaintiffs Graf and Carter are faced not just with the loss
of consideration for parole, but also with the loss of a right to
petition the court for a reduction and suspension of their
respective sentences.
ee
App. 61
In other “penalty” cases, the loss, or threatened loss,
of a job, or other economic hardship has constituted a
sufficient sanction to find compulsion on the part of the
government. See e.g. Minnesota v. Murphy, 465 U.S. at
434-35 (citing cases); Garrity v. New Jersey, 385 U.S. 493
(1967) (threatened discharge from employment for failing
to provide the incriminating answers sought constituted
compulsion); Uniformed Sanitation Men v. Commissioner of
Sanitation, 392 U.S. 280, 284 (1968) (same); Perez-Franco,
873 F.2d at 462-63 (summarizing Supreme Court prece-
dent as settling “ ‘that government cannot penalize asser-
tion of the constitutional privilege against compelled self-
incrimination by imposing sanctions to compel testimony
which has not been immunized.’ ”) (quoting Lefkowitz v.
Cunningham, 431 U.S. 801, 806 (1977)). Also, refusing to
give credit for a statutory sentence reduction where the
_ defendant accepted responsibility for only one count of a
multi-count indictment has been held to impose a penalty
in violation of the Fifth Amendment. See id. at 463-65; see
also United States v. Corbin, 988 F.2d 1377, 1389-90 (7th Cir.
1993) (noting a split among the courts of appeals and
citing cases consistent with Perez-Franco’s holding).
The evidence presented in support of this prelimi-
nary injunction motion showed that plaintiffs were not
considered for parole because of their refusal to abide by
the SOP admissions policy, despite any statutory eligi-
bility for parole consideration. If potential economic
losses or longer sentences create penalties which are sub-
stantial enough to satisfy the compulsion element of a
Fifth Amendment violation, then the loss of the right to
be considered for parole, or to be considered for a reduc-
tion or suspension of one’s sentence, would appear to be
App. 62
at least as onerous of a sanction. See Perez-Franco, 873 F.2d
at 463 (finding “imprisonment is one of a wide variety of
penalties which can serve to trigger a constitutional viola-
tion”); Lile, 24 F. Supp. 2d at 1158-59 (holding loss of
privileges and transfers to maximum custody were suffi-
ciently penalizing to compel self-incriminating admis-
sions); cf. Minnesota v. Murphy, 465 U.S. at 435-37 (finding
no Fifth Amendment violation because the probationer
was not faced with a choice between remaining silent and
having his probation revoked or incriminating himself).
* I reach this conclusion even in light of the Supreme
Court’s recent decision in Ohio Adult Parole Authority v.
Woodward, ____ U.S. __, 118 S. Ct. 1244 (1998). In Woodward, the
Court held Ohio’s clemency procedure did not violate the Fifth
Amendment, because the challenged clemency interview was
voluntary. Although the inmate was facing death and was not
guaranteed immunity for any answers provided during the
interview, the Court found no compulsion because any
“undoubted pressures - generated by the strength of the
Government’s case against him - pushing the criminal
defendant to [be interviewed]” did not constitute “compulsion”
for Fifth Amendment purposes. Id. at 1253. The Court
concluded that “this pressure to speak in the hope of improving
his chance of being granted clemency does not make the
interview compelled.” Id . In Woodward, the inmate’s refusal to
be interviewed, however, did not eliminate his right to a
clemency hearing before the parole board, a clemency
recommendation to the governor by the parole board, or a final
decision by the governor on the clemency issue. He, therefore,
was not faced with the choice between self-incrimination or loss
of his life, as some courts have found, see e.g. Searcy v. Simmons,
68 F. Supp. 2d 1197, 1201 (D.Kan. 1999) (holding that if the
choice in Woodward between self-incrimination or loss of life
was not sufficient compulsion to render the answers
involuntary, then the choice between loss of privileges or self-
incrimination cannot be compulsion under the Fifth
App. 63
While ultimate success on the merits is far from
certain, I find at this preliminary stage of the proceedings
that plaintiffs are likely to prevail on the merits of their
claim with respect to denial of consideration for parole.
In other cases where no Fifth Aznendment violation has
been found despite the elicitation of self-incriminating
answers, generally immunity has been provided by the
government. See e.g. Allen, 478 U.S. at 367-68 (holding
Illinois’ requirement that sexual offenders submit to com-
pulsory examinations under its “Sexually Dangerous Per-
sons Act” does not violate the Fifth Amendment because
the proceedings are civil and the answers provided could
not be used against the offender in any subsequent crimi-
nal proceeding); Neal v. Shimoda, 131 F.3d 818, 833 (9th
Cir. 1997) (finding no Fifth Amendment violation despite
the compelled incriminating answers because any admis-
sion made could not be used against the plaintiffs); Grand
Jury Subpoenas v. United States, 40 F.3d 1096, 1101-03
(allowing the grand jury to consider compelled state-
ments as long as they are not the basis of future criminal
prosecution against the speaker) (10th Cir. 1994); see gen-
erally Kastigar v. United States, 406 U.S. 441, 448 (1972)
(affirming the constitutionality of immunity statutes
which enable the government to obtain incriminating
Amendment), because his right and ability to be considered for
clemency remained intact. By contrast, in the instant case
plaintiffs’ refusal to answer eliminates, for all practical
purposes, any chance of being considered for release on parole
or having a sentence reduced or suspended. I, therefore, still
conclude at this preliminary stage in the proceedings based on
that evidence which is currently before the court, that the NHSP
has created a substantial penalty which compels the answers
sought.
App. 64
answers in return for immunity from prosecution based
on those answers); Minnesota v. Murphy, 465 U.S. at 435 n.
7 (“Our cases indicate, moreover, that a State may validly
insist on answers to even incriminating questions and
hence sensibly administer its probation system, as long as
it recognizes that the required answers may not be used.
in a criminal proceeding and thus eliminates the threat of
incrimination.”). A similar accommodation for plaintiffs
here would appear to reasonably balance the State’s inter-
est in successfully rehabilitating sexual offenders with the
plaintiffs’ Fifth Amendment rights.!°
(2) The Remaining Factors.
The remaining factors tip the scales in favor of grant-
ing a preliminary injunction. The loss of liberty which
would result from a future criminal conviction for con-
duct admitted to in the course of the SOP would harm the
plaintiff in a manner which could not be redressed with
money damages. More importantly, however, both the
balancing of the equities factor and the public interest
factor weigh heavily towards granting the injunction
10 For a discussion of efforts which have been made to
balance the conflict between the State’s interest in rehabilitation
and public safety and the plaintiffs’ interest in not incriminating
themselves, see Scott Michael Solkoff, Note, Judicial Use
Immunity and the Privilege against Self-Incrimination in Court
Mandated Therapy Programs, 17 Nova L.Rev. 1441 (1993).
Significantly, protecting plaintiffs from future prosecution
based on admissions made during rehabilitation would not
prevent the government from prosecuting a plaintiff based on
evidence independently obtained. See id. at 1490.
App. 65
sought. The evidence showed that successful rehabilita-
tion requires inmates to admit their deviant sexual histo-
ries, and successful rehabilitation reduces the recidivism
rate by as much as 50%. It is clearly in the public’s
interest to have these plaintiffs rehabilitated, yet the cur-
rent SOP admissions policy has repelled them and has
created a situation in which sexual offenders may com-
plete their sentences and be entitled to release from incar-
ceration without getting the mental health care so critical
to the public safety. Under such circumstances and based
on the current record, I find that the four factors relevant
to the determination of whether or not a preliminary
injunction should be granted favor granting an injunc-
tion.
Conclusion
Accordingly, for the reasons set forth above, I recom-
mend that the plaintiffs’ request for a preliminary injunc-
tion be granted, but only as follows: defendants are
enjoined from conditioning admission to the SOP upon
an admission by plaintiffs to uncharged criminal conduct,
unless plaintiffs are immunized from use in any way of
those admissions in any subsequent criminal proceed-
ings. This recommendation is only for a preliminary
injunction, which means that, if accepted, it will be effec-
tive only for the duration of this lawsuit until the issues
raised herein may be disposed of finally.
Any objections to this Report and Recommendation
must be filed within ten (10) days of receipt of this notice.
Failure to file objections within the specified time waives
the right to appeal the district court’s order. See
Pn
App. 66
Unauthorized Practice of Law Committee v. Gordon, 979 F.2d
11, 13-14 (1st Cir. 1992); United States v. Valecia-Copete, 792
F.2d 4, 6 (1st Cir. 1986).
/s/ James R. Muirhead
James R. Muirhead
United States
Magistrate Judge
Date: February 3, 2000
cc: Michael J. Sheehan, Esq.
New Hampshire Dept. of Justice
Daniel J. Mullen, Esq.
App. 67
APPENDIX D
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 00-1678
HERBERT AINSWORTH, ET AL.,
Plaintiff-Appellant,
v.
COMMISSIONER, NEW HAMPSHIRE DEPARTMENT
a OF CORRECTIONS, HENRY RISLEY,
Defendant-Appellee.
BEFORE
TORRUELLA, Chief Judge,
SELYA, BOUDIN, LYNCH and LIPEZ Circuit Judges,
ORDER OF COURT
Entered: May 3, 2001
The panel of judges that rendered the decision in this
case having voted to deny the petition for rehearing and
the suggestion for the holding of a rehearing en banc
having been carefully considered by the judges of the
court in regular active service and a majority of said
judges not having voted to order that the appeal be heard
or reheard by the court en banc,
App. 68
It is ordered that the petition for rehearing and the
suggestion for rehearing en banc be denied.
By the Court:
Phoebe D. Morse, Clerk
By: JANICE M. O’NEIL
Chief Deputy Clerk
[cc: Messrs. Sheehan and Livernois]
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