Ainsworth v. Edda Cantor Commissioner CV-99-447-M 02/03/00 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Wavne Ainsworth, et a l .
v. Civil No. 99-447-M Opinion No. 2000 DNH 036 Edda Cantor, Acting Commissioner N.H. Dept, of Corrections, et a l .
REPORT AND RECOMMENDATION
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-incrimination 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 preliminary injunction (documents no. 5), and the amended petition 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 "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 programs are quantitative, not qualitative," as
"the basic admission criteria, program objectives and goals and
completion requirements are the same for both [programs]." Id.
at 10. Accordingly, I will refer to both programs by the single
acronym, the "SOP."
Most convicted sexual offenders are required to successfully
complete the SOP before being considered for parole. Those
sexual offenders who participate do so because participation was
2 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, however, 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 programming 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
criteria, generally the inmate will be assigned to either SOP
3 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.1 Plaintiff
Donald Carter testified that he has been denied admission because
he refuses to admit to sexually assaulting a daughter named
Kelly. This testimony 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
1The 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.
4 him, and his conviction 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.
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
confidentiality. The SOP "Treatment Contract," id. at 12,
specifically provides for the participant to agree to sign an
5 "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 immunize 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 prosecuting 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 SOP. A few sexual
offenders, however, are released without having completed the SOP
6 while incarcerated, but only about two or three annually.2 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
rehabilitation programming.3
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 participating 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
2Eckart testified that between 55-75 sexual offenders have been paroled annually since 1996.
3In 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.
7 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, but sexual offenders are
dispersed throughout the institution. 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 actually 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 nonparticipation 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
4Badger and Graf testified they were still housed in South; Carter has been housed in Hancock since he was first incarcerated in 1998 . 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).
In this action, plaintiffs pursue the single issue of
whether the SOP's "open and honest" requirement violates 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 considered for parole, or
any liberty interest in being housed in a particular building at
the NHSP. Instead, they weave those issues into their Fifth
9 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 admissions 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
10 would in themselves support a conviction . . . but likewise
embraces those which would furnish a link in the chain of
evidence needed to prosecute 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 statements 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 Amendment 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
11 agreement); Lile v. McKune, 24 F. Supp. 2d 1152, 1156 (D. Kan.
1998) (citing Baxter v. Palmiqiano, 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 Amendment; (2) if the answers sought are
self-incriminating; and (3) if the answers are in some way
compelled by the government. The first two elements of a Fifth
Amendment 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 program, 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
12 achieve, see e.g. Plaintiffs' 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 (describing group therapy in phase I of the
program as requiring "full and open disclosure, sexual
autobiography"), 12 (the SOP Treatment Contract's first condition
requires the participant to "agree to be complete[ly] open and
13 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 prosecuting authorities determine whether to pursue
charges. Clearly, then, with respect to conduct of which they
have not been convicted, the inmates are required to incriminate
themselves within the meaning of the Fifth Amendment. 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 dangerous 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
14 privilege 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 sentence originally imposed. The
resolution of this case turns on whether there is any compulsion
in this voluntary 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 Amendment violation because of the
threatened or imposed penalty for failing to answer). An answer
is not voluntarily given if it is given only to avoid a penalty,
because that denies the individual a "'free choice to admit, to
15 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 sanctions "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 incriminating testimony against himself."
Id. at 434 (citations omitted). Thus, if a substantial penalty
is likely to result for failing to respond to the question asked,
the incriminating disclosure is considered 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 consideration
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
16 argument may be summarily dismissed, because it is well-settled
that inmates have no constitutional right to any specific housing
in any particular institution. See Olim v. Wakinekona, 461 U.S.
238, 244 (1983) (citing Meachum v. Fano, 427 U.S. 215 (1976) and
Montanve v. Havmes, 427 U.S. 236 (1976) to support the conclusion
that prisoners have no liberty interest protecting 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 minimal
transfers which have been made have been to housing 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
17 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 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 constitutional or statutory right
18 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 interest 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 history,
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.
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.
19 RSA 651-A:6, I (1996). This provision also addresses when
inmates serving multiple sentences may first be considered 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,
even though they are statutorily eligible to be considered for
release on parole.
All four plaintiffs who testified at the hearing stated that
5This 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.").
20 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 qualitatively different from a decision to revoke parole once
6Carter 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.
21 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 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 Amendment 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
unsuccessful 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
22 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
conviction 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.7 Carter has
71he 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 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
23 been denied admission to the SOP apparently only because he
refuses to admit to the conduct 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
suspended. By contrast to the plaintiff in Knowles, here the
plaintiffs seek protection for admissions regarding unreported
and uncharged crimes.
Second, the Court summarized one of the SOP objective'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.l (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
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.
24 the offenders to admit openly their sexual autobiography, as part
of the admission procedure and group therapy. Messinger 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 committed 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
25 parole would be appropriate.8 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").
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);
Garritv 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);
8Plaintiffs 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 .
26 Perez-Franco, 873 F.2d at 462-63 (summarizing Supreme Court
precedent as settling "'that government cannot penalize assertion
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
4 63-65; 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 preliminary
injunction motion showed that plaintiffs were not considered for
parole because of their refusal to abide by the SOP admissions
policy, despite any statutory eligibility for parole
consideration. If potential economic losses or longer sentences
create penalties which are substantial enough to satisfy the
compulsion element of a Fifth Amendment violation, then the loss
27 of the right to be considered for parole, or to be considered for
a reduction or suspension of one's sentence, would appear to be
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 violation"); Lile, 24
F. Supp. 2d at 1158-59 (holding loss of privileges and transfers
to maximum custody were sufficiently penalizing to compel self-
incriminating admissions); 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).9
9I reach this conclusion even in light of the Supreme Court's recent decision in Ohio Adult Parole Authority v. Woodward, __ U.S. , 118 S. C t . 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
28 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 Amendment 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
compulsory examinations under its "Sexually Dangerous Persons
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 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.
29 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 criminal proceeding); Neal v. Shimoda,
131 F.3d 818, 833 (9th Cir. 1997) (finding no Fifth Amendment
violation despite the compelled incriminating answers because any
admission 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 statements as long as they
are not the basis of future criminal prosecution against the
speaker)(10th Cir. 1994); see generally Kastiqar v. United
States, 406 U.S. 441, 448 (1972) (affirming the constitutionality
of immunity statutes which enable the government to obtain
incriminating 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 itrecognizes that
the required answers may not be used in a criminal proceeding and
thus eliminates the threat of incrimination."). A similar
30 accommodation for plaintiffs here would appear to reasonably
balance the State's interest in successfully rehabilitating
sexual offenders with the plaintiffs' Fifth Amendment rights.10
(2) The Remaining Factors.
The remaining factors tip the scales in favor of granting a
preliminary injunction. The loss of liberty which would result
from a future criminal conviction for conduct 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
sought. The evidence showed that successful rehabilitation
requires inmates to admit their deviant sexual histories, and
10For 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.
31 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 current SOP admissions policy
has repelled them and has created a situation in which sexual
offenders may complete their sentences and be entitled to release
from incarceration 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 injunction.
Conclusion
Accordingly, for the reasons set forth above, I recommend
that the plaintiffs' request for a preliminary injunction 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 proceedings. This recommendation is only for a
preliminary injunction, which means that, if accepted, it will be
32 effective 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 Unauthorized Practice of
33 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)
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.