Ainsworth v. NH Dept, of Corrections

2000 DNH 121

• Court: District Court, D. New Hampshire
• Decided: May 18, 2000
• Docket: CV-99-447-M
• Status: Published

Opinion

Ainsworth v. NH Dept, of Corrections CV-99-447-M 05/18/00 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Wayne Ainsworth, et a l ., Plaintiffs

v. Civil No. 99-447-M Opinion No. 2000 DNH 121 Edda Cantor, Acting Commissioner, New Hampshire Dept, of Corrections, Defendant

O R D E R

Plaintiffs, a group of 23 inmates at the New Hampshire 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 preliminary 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 misconduct, including

uncharged criminal conduct, as a condition of admission. And,

they claim that they are "compelled" to participate in the sexual offender program (and, in so doing, provide potentially

incriminating evidence against themselves) because, unless they

participate: (1) they are subjected to punitive transfers within

the prison; and (2) are not granted parole.

On February 3, 2000, the Magistrate Judge issued a Report

and Recommendation, recommending that the court grant plaintiffs'

request for a preliminary injunction, 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 dismiss.

Background

In order to participate in the prison's sexual offender

treatment program, an inmate must, among other things, freely and

2 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 candor is essential to effective treatment.

Beyond obtaining effective treatment, however, participation in

the program can bring more concrete benefits as well for,

generally 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 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 successfully

complete the program.

3 Discussion

I. Defendant's Motion to Dismiss.

Plaintiffs argue that the disclosure requirement operates 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 substantial adverse consequences. So, in effect,

they are "compelled" 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.

4 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 constitutional concerns.

Both this court and the New Hampshire Supreme Court have

addressed this issue on several occasions. 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,

19 97); Wellington 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 constitutionally

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 responsibility for all past sexual

misconduct (both charged and uncharged). Plaintiffs are not

"compelled" to relinquish their Fifth Amendment rights by the

5 program's requirements because participation in the sexual

offender program 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 discuss his

history of sexual misconduct), or decline to participate, 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 State, and the State's

requirements do not violate any federal constitutional

guarantees.

6 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 hearing 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 completion of

the sexual offender program "is a de facto requirement 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 Declaratory and Injunctive Relief (document no. 13)

at 7. Plainly, however, evidence introduced at the preliminary

injunction 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.

7 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 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

arguable in light of the State's interest in protecting the

public, 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 information, 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 treatment

program on therapeutic cooperation, i.e. acceptance of

responsibility for all prior sexual misconduct, amounts to a

9 Fifth Amendment violation. As to that claim, plaintiffs'

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-incriminating

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 classified 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 troublesome medium custody inmates and the conditions 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.

10 While thoughtfully presented, plaintiffs' argument lacks

force. Just as inmates have no constitutionally protected

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 US 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 convicted of crime.").

11 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 characteristically

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, "[Differing

the possibility of earning a benefit is certainly an incentive to

participate, but it is not coercion." Brooker, slip op. at 12.

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 context in which he might expose

himself to criminal liability. 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

12 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 rehabilitation program and not his invocation of his

privilege.").

13 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 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 defendant's motion to dismiss, as well as

its decision not to accept the Magistrate Judge's recommendation

that a preliminary injunction be issued.

Although not advanced by plaintiffs in their petition, the

Magistrate Judge considered whether prison authorities could

14 lawfully refuse to even consider an inmate for parole if he had

not completed the sexual offender program. 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 suggests 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 treatment program). No

evidence was presented establishing 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

15 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

similar 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

16 only that satisfactory completion of the sexual offender program

is a de facto condition 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

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 identified 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 prosecution (and because evidence produced at the hearing

suggests that they might well be prosecuted for such conduct),

17 the program's requirements create a strong disincentive for some

inmates to participate. That disincentive is unfortunate (and

perhaps unintended) since statistics maintained by the State

suggest that participants in the sexual offender program are far

less likely to re-offend than are those offenders who receive no

treatment. 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' meaningful

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.

18 Conclusion

Defendant's motion to dismiss (document no. 8) is granted.

Plaintiffs' claims that the completion of the sexual 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.

Steven J. McAuliffe United States District Judge

May 18, 20 00

cc: Michael J. Sheehan, Esq. Daniel J. Mullen, Esq.