Brooker v. Warden, NHSP CV-98-466-JD 06/22/99 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Scott Brooker
v. Civil No. 98-466-JD
Warden, New Hampshire State Prison
O R D E R
Scott Brooker, proceeding pro se, seeks habeas corpus relief
pursuant to 28 U.S.C.A. § 2254, challenging the constitutionality
of New Hampshire's parole system as it is applied to him. In
particular, he argues that the reguirement that he successfully
complete sexual offender programming, including a
Psychophysiological Detector of Deception ("PDD") test, violates
his Fifth, Eighth, and Fourteenth Amendment rights and the Ex
Post Facto Clause. The respondent moves for summary judgment,
(document no. 39); the petitioner objects and files several
motions to submit evidence in support of his petition (documents
n o . 2 6 and 2 9).
Background
In 1980, Brooker was convicted of two counts of aggravated
felonious sexual assault and one count of kidnaping. He received
three to 15 year sentences. He completed his first fifteen- year sentence in 1993, and is now serving the second and third
sentences concurrently.
Brooker participated in sexual offender treatment and
programming at the New Hampshire State Hospital and at the
prison, and, most recently, he participated in the Enhanced
Relapse Prevention Program ("ERPP") at the prison. Irene Lavoie,
who is a therapist at the prison, said in her affidavit that
Brooker participated in ERPP from September of 1996 through
August of 1997. Brooker also began to participate in an "after
care" program during the fall of 1997 in which inmates provided
support for each other after completing a sexual offender
program.
In her evaluation of Brooker dated October 7, 1997, Lavoie
reported that although he was a model participant during ERPP
treatment sessions, other incidents made her guestion his honesty
in the treatment process. By way of example, Lavoie noted that
Brooker had been disciplined just before beginning the ERPP
treatment for activities to start a "fantasy photo" business to
solicit personal information and photographs of women for an art
exhibit. Lavoie explained in her report that honesty in
disclosing offenses was essential to the treatment process and
that some discrepancies between Brooker's statements and the
police reports of his offenses made her guestion his honesty. In
2 her affidavit, Lavoie mentions that Brooker denied a rape attempt
of one victim, which is one of the crimes of his conviction.
Because of her concerns about his honest participation in
the ERPP, Lavoie recommended that he undergo the PDD test, which
is a kind of polygraph test, to validate his truthfulness. The
agreement for ERPP did not reguire a PDD test. Lavoie
recommended that Brooker not be paroled until the test was
completed. On October 16, 1997, the parole board denied parole
citing the need for reduced custody status, a community sexual
offender program, and the lack of a PDD test. Brooker's reguest
for reduced custody status was denied in April of 1998 due in
part to a lack of a PDD test.
Brooker agreed to take the PDD test and, because it was not
then available at the prison, paid the cost of administering the
test himself. The test was administered by George E. Brown, a
forensic psychophysiologist, on April 15, 1998. In his report
dated April 27, 1998, Brown explained the purpose of the test was
"to determine if he has more sexual offense victims then [sic] he
has reported." Brown concluded, "After careful review of the
subjects [sic] examination coupled with guality control review,
it is the express opinion of this specialist that Mr. Brooker has
other unreported victims." Brown cautioned that PDD test results
were to be considered for treatment purposes but not to be used
3 as the sole basis for determining violations of probation or
parole.
Since the PDD results were interpreted not to validate
Brooker's honest participation in the ERPP, his custody
classification status was not changed. In June of 1998,
Brooker's supervisors reported to the parole board that Brooker
had "failed" the PDD test. The supervisors recommended that he
progress through reduced custody status including a work release
program before being considered for parole because he would
benefit from a gradual, supervised release program rather than
immediate parole. The parole board denied parole in June of 1998
saying, "Board's position declared at hearing of 10/16/97 is
unchanged. Will consider for parole when in a halfway house and
participating in sexual offender counseling."
Brooker took a second PDD test in September of 1998 that was
administered by the prison. The second test focused on one of
his New Hampshire convictions. No report of the results of the
second test is included in the record. Irene Lavoie said in her
affidavit, "The results of the second test PDD also reinforced my
concerns that Mr. Brooker was not being honest about his offenses
and behavior." Brooker stopped attending the after care program
in September of 1998.
On October 22, 1998, the parole board wrote: "Will consider
4 for a parole hearing in November 98, for parole to a halfway
house." In December, Brooker's parole hearing was continued
until January of 1999 "so board can discuss treatment report with
Irene Lavoie." The board denied parole on January 14, 1999,
stating as its reason that "board concludes that [Brooker] has
not been entirely truthful regarding his offenses and record."
They said that a rehearing would be held "when, in the opinion of
the treatment team, he is completely honest about his
offenses/record."
Discussion
In support of his reguest for habeas relief, Brooker asserts
a liberty interest in parole and claims that New Hampshire's
parole system violates his Fifth, Eighth, and Fourteenth
Amendment rights and the Ex Post Facto Clause. The respondent
moves for summary judgment.1 Summary judgment is appropriate in
habeas proceedings, as in other civil actions, when "the
pleadings, depositions, answers to interrogatories, and
1The respondent contends that Brooker has not exhausted his claims based on the Eighth Amendment and egual protection under the Fourteenth Amendment, and it is not clear whether those claims were raised in Brooker's state habeas actions. See Order of the N.H. Supreme C t . No. 98-746, December 1, 1998. Because of the outcome in this case, however, it is not necessary to resolve whether the claims were exhausted. See 28 U.S.C.A. § 2254(b)(2).
5 admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."2
Fed. R. Civ. P . 5 6(c); see also Fed. R. Civ. P. 81(a)(2).
A. Due Process Claim
Brooker contends that the respondent has deprived him of
liberty without due process by denying him parole based on the
negative results of his PDD tests and Irene Lavoie's reports
despite the fact that he has participated in sexual offender
programming and "has continued to 'jump through the hoops.'"
Petition at 5. A convicted prisoner, however, has no independent
constitutional right to parole. Greenholtz v. Nebraska Penal
Inmates, 442 U.S. 1, 7 (1979). A right to parole, subject to
protection under the Due Process Clause, exists only if such a
right is created by state law. See Sandin v. Conner, 515 U.S.
472, 483-84 (1995); Board of Pardons v. Allen, 482 U.S. 369, 373-
2Brooker says that the respondent did not provide him with copies of "the exhibits it tells the court to See." Affidavit in Opposition to Summary Judgment (doc. no. 41) at 2. The exhibits referenced by the respondent in the motion for summary judgment and supporting memorandum are the exhibits Brooker appended to his petition. As those documents are part of the record, having been submitted by Brooker, the respondent was not obligated to provide copies to Brooker for purposes of the summary judgment motion.
6 81 (1987). In determining whether state law provides a
protectable liberty interest in parole, federal courts are bound
by the state's interpretation of applicable state law unless that
construction or application violates federal law. See Hamm v.
Latessa, 72 F.3d 947, 954-55 (1st Cir. 1995).3
The applicable parole laws now in force in New Hampshire are
found in N.H. Revised Statutes Annotated ("RSA") chapter 651-A.
The statute provides the terms of release for parole:
A prisoner may be released on parole upon the expira tion of the minimum term of his sentence, [as adjusted by other statutory provisions], provided that there shall appear to the adult parole board, after having given the notice reguired in RSA 651-A:11, 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). Under the authority provided by RSA 651-
A:4, III (1996), the parole board has adopted rules including the
following statement of parole policy:
Parole shall be considered a privilege, something to be earned rather than automatically given, and any release prior to the maximum term shall be made only upon careful and lawful consideration. An inmate shall not be granted parole unless the board finds a reasonable
3An inmate also has no constitutional right to a particular custody or security status. Moody v. Daggett, 429 U.S. 78, 88 n.9 (1979); Neal v. Shimoda, 131 F.3d 818, 828 (9th Cir. 1997). Brooker has not argued that state statutes, regulations, or prison policy created a protectable liberty interest in reduced custody or security status.
7 probability that the inmate will remain at liberty without violating any law and will conduct himself as a good citizen. While that finding is a necessary condition to the granting of parole, it is not the only condition. The board can make that finding and yet deny parole on some other ground as provided in part 302 .
Code of N.H. Rules, Weil's Codes, Par-301.01 (1996). Part 301.02
provides a nonexclusive list of other parole criteria including
the inmate's criminal record, his "ability and readiness to
assume obligations and undertake responsibility," the inmate's
attitude toward his prior criminal conduct, and evaluations or
recommendations from prison staff and personnel. Id. at Par-
301.02. Section 302 lists six mandatory grounds for denying
parole including a determination that continued treatment in the
prison would substantially improve the inmate's ability to
conform to parole criteria or that a reasonable probability
exists that the inmate will not conform to the conditions of
parole or state law. When Brooker was sentenced in 1980, the
parole provisions were found in different statutory and rule
codifications, but provided nearly identical authority and policy
to the parole board. See RSA 651:45 (1976) (terms of release on
parole); Rules and Procedures Adopted by the New Hampshire Board
of Parole, Sections I & IV, as Amended Dec. 6, 1976.
The New Hampshire Supreme Court has repeatedly held that the
parole board has broad discretion in its parole decisions and that the board is not mandated to grant parole to an inmate who
meets certain conditions. Baker v. Cunningham, 128 N.H. 374,
380-81 (1986); accord Cable v. Warden, 140 N.H. 395, 397 (1995);
Knowles v. Warden, 140 N.H. 387, 376 (1995); see also Martineau
v. Halgemoe, 117 N.H. 1017, 1018 (1977). Although the New
Hampshire court's analyses predate Sandin, viewing the New
Hampshire parole scheme in the context of the nature of the right
protected would not change the outcome. See Hamm, 72 F.3d at 954
(using Sandin analysis to determine liberty interest in parole);
but see Ellis v. District of Columbia, 84 F.3d 1413, 1418 (D.C.
Cir. 1996) (Sandin analysis not applicable in parole context).
Under Sandin, instead of relying on whether the state's
statutory or regulatory language is mandatory, the court
considers the nature of the interest and whether the state law
imposes an "atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life." Sandin, 515
U.S. at 484. Denial of parole leaves an inmate to serve his
legally conferred maximum sentence, which is not an atypical or
significant hardship in the context of prison life. See, e.g.,
Wildermuth v. Furlong, 147 F.3d 1234, 1238 n.4 (10th Cir. 1998).
Parole under the New Hampshire system is explicitly a
privilege that may be earned by successfully demonstrating the
inmate's capacity for parole to the satisfaction of the parole board. While parole offers the possibility of mitigating a valid
sentence, the parole system does not protect an inmate from an
atypical hardship in the context of ordinary prison life. The
possibility of parole is not a right to liberty conferred by New
Hampshire law.4 Since Brooker has not demonstrated a liberty
interest in parole conferred by state law, his due process claim
based on the denial of parole is not viable. See U.S. Const,
amend. XIV; see also Kentucky Dept, of Corrections v. Thompson,
490 U.S. 454, 460 (1989); Olim v. Wakinekona, 461 U.S. 238, 250
(1983) .
B. Equal Protection Claim
Although less well-developed than the due process claim,
Brooker also asserts that he has been denied egual protection of
the laws in the parole process. He does not identify himself as
a member of a protected class, but instead points to two other
inmates who he believes were granted parole despite having failed
a PDD test. He also contends that an accusation by a
confidential informant about his conduct in prison has unfairly
4In contrast to Brooker's view of the system, parole is not based on jumping through specified hoops. In other words, the parole board is not obligated to grant parole when an inmate has participated in sexual offender program treatment without regard to whether he successfully completed the treatment and without consideration of any other criteria for parole eligibility.
10 influenced decisions against him, and, in that regard, he has
been treated differently than other prisoners. Although in some
circumstances the parole process might demonstrate sufficiently
discriminatory or arbitrary conduct to raise constitutional
concerns, Brooker has not provided a factual basis to raise a
dispute as to whether constitutionally discriminatory or
arbitrary decisions were made in his case. See, e.g., Burkett v.
Love, 89 F .3d 135, 139-140 (3d Cir. 1996).
C. Fifth Amendment Claim
Brooker contends that the sexual offender programming and
the PDD test in particular impermissibly reguire him to disclose
his prior criminal conduct, both crimes of conviction and other
criminal acts in violation of the Fifth Amendment. The Fifth
Amendment states that "no person . . . shall be compelled in any
criminal case to be a witness against himself." U.S. Const,
amend. V. Fifth Amendment protection extends to any proceeding
in which compelled answers could lead to future criminal
proceedings. See Allen v. Illinois, 478 U.S. 364, 368 (1986) .
Courts have recognized the coercive effect of a reguirement
that an inmate satisfactorily participate in a sexual offender
program, including disclosure of his past criminal conduct, as a
prereguisite for parole eligibility. See, e.g., Neal v. Shimoda,
11 131 F.3d 818, 829 (9th Cir. 1997) (finding liberty interest
requiring due process before labeling as sex offenders inmates
who were not convicted of sexual offences); Lile v. McKune. 24 F.
Supp. 2d 1152, 1157-59 (D. Kan. 1998) (additional sanctions
beyond merely serving sentence due to inmate's refusal to
disclose criminal conduct in sexual offender treatment
constitutes compulsion). A voluntary statement or interview,
however, 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. See Ohio Adult Parole Auth. v.
Woodard, 118 S.Ct. 1244, 1252-53 (1998); accord Wildermuth, 147
F.3d at 1237; Lile, 24 F. Supp. at 1158.
In this case, Brooker voluntarily participated in sexual
offender program treatment, including the ERPP, and voluntarily
took the two PDD tests. Although he participated in hopes of
improving his chances for reduced custody status and parole, he
could choose not to participate without increasing the hardship
of his incarceration since he was not subject to any additional
punishment for refusing to participate. See Knowles, 140 N.H. at
392-93. 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. Under these circumstances, Brooker was not compelled to
12 make statements about other criminal acts. Therefore, the
respondent's reliance on the PDD and sexual offender treatment as
part of the criteria for parole eligibility do not violate
Brooker's Fifth Amendment rights against compelled self
incrimination.
D. Eighth Amendment Claim
Although Brooker has not clearly defined his Eighth
Amendment claims, he seems to assert that the respondent's
failure to classify him at a lower custody level and the
reguirement that he participate in sexual offender programming to
be eligible for parole violate the Eighth Amendment. The Eighth
Amendment protects against cruel and unusual punishment. Claims
that challenge the validity or duration of a sentence are
cognizable in support of a habeas petition, while claims that
challenge the conditions of legal confinement, which will not
result in the petitioner's release, do not support a habeas
petition and are more properly considered under 42 U.S.C.A. §
1983. See Preiser v. Rodriguez, 411 U.S. 475, 484-85 (1973);
Williams v. Hopkins, 130 F.3d 333, 335 (8th Cir. 1997); Gomez v.
United States, 899 F.2d 1124, 1125-26 (11th Cir. 1990).
Based on the record, neither Brooker's custody status nor
the sexual offender programs at the prison impose "punishments
13 which are incompatible with the evolving standards of decency
that mark the progress of a maturing society." Estelle v.
Gamble, 429 U.S. 97, 102 (1976). Sexual offender programming at
the prison, as was discussed above, is voluntary not mandatory.
The purpose of the prison's programming is to provide treatment,
not punishment. See Knowles, 140 N.H. at 388. A voluntary
treatment program is not punishment within the meaning of the
Eighth Amendment. See Neal, 131 F.3d at 833; see also Kansas v.
Hendricks, 521 U.S. 346, 360-64 (1997). As Brooker has no right
to parole or to a particular custody status, and he has not
alleged that the conditions of his current status violate
society's standards of decency, he has not made an Eighth
Amendment claim based on his custody status.
E. Ex Post Facto Claim
Brooker argues that the reguirement that he successfully
complete sexual offender programming in order to be eligible for
parole violates the Ex Post Facto Clause because, when he was
sentenced in 1980, sexual offender programs did not exist and his
sentence did not include a reguirement that he participate in the
programs. The Ex Post Facto Clause prohibits the retroactive
application of laws that inflict a greater punishment than was
prescribed when the crime was committed. Lynce v. Mathis, 519
14 U.S. 433, 440-41 (1997). Laws have been interpreted broadly in
ex post facto analyses to include administrative policy and
regulations in some cases. See Hamm, 72 F.3d at 956 n.14. A law
inflicts a greater punishment, in the context of parole, if "the
new provision constricts the inmate's opportunity to earn early
release, and thereby makes more onerous the punishment for crimes
committed before its enactment." Weaver v. Graham, 450 U.S. 24,
36 (1981); accord Lynce, 450 U.S. at 445 (retroactive alteration
of parole implicates the Ex Post Facto Clause).
To begin an ex post facto analysis, the court must compare
the new law with the old. Neither party has addressed the
guestion of whether there is a state law, or a regulation or
policy that operates as a law, that reguires an inmate who was
convicted of a sexual offense to successfully complete sexual
offender programing as a prereguisite for parole eligibility.
See Hamm, 72 F.3d at 956. An inmate may be referred to treatment
by the court or prison staff, or he may reguest admission. See
Knowles, 140 N.H. at 388. Absent information to the contrary, it
appears that the parole board's decision to deny parole in
Brooker's case until he successfully completes sexual offender
programming is based on the board's parole criteria that
"Continued treatment, mental or psychological care, or vocational
or other training within the institution would substantially
15 improve the inmate's capacity to lead a law-abiding life upon
release at a future date." N.H. Admin. Rules, Par 302.01(c); see
also Cable v. Warden, 140 N.H. 395, 397 (1995) .
In 1980, when Brooker was convicted, the parole board's
rules provided:
In denying parole to a prisoner, the Board's decision may include, but not to be limited to, the following reasons: . . .
4. His continued treatment, mental or psychological care or vocational or other training in the institution will substantially enhance his capacity to lead a law- abiding life when released at a future date." N.H. Board of Parole Rules at Sec. 4.
Therefore, the regulatory basis for the parole board's decision
has not changed. What has changed is that the prison now offers
a sexual offender program that provides a means of treatment and
evaluation that were unavailable in 1980.
To violate the Ex Post Facto Clause, the change in the
system must present a significant risk of lengthening a
prisoner's expected term of imprisonment. See California Dept.
of Corrections v. Morales, 514 U.S. 499, 508-09 (1995). The
addition of sexual offender programming did not necessarily
lengthen the time that an inmate must spend in prison. Instead,
its effect depends entirely on the prisoner's experience in the
program. Thus, the effect of the new program is highly
individual. Whether the program will increase the time a
16 particular prisoner spends in prison is only a possibility. See
Morales, 514 U.S. 499, 508-09 (1995) (speculative or attenuated
possibilities of prohibited consequences from an amended law do
not violate Ex Post Facto Clause); accord Hamm, 72 F.3d at 956-
59. C f . Lynce, 591 U.S. at 447 (cancellation of earned
overcrowding credits making class of parole-eligible prisoners
ineligible violated Ex Post Facto Clause); Weaver, 450 U.S. at
35-36 (reduction of earned gain time restricted prisoners'
ability to earn early release in violation of ex post facto
prohibition). Sexual offender programming presents much less
risk of increasing prison time than the statutory amendments in
California that allowed parole boards to defer hearings for
prisoners convicted of double murders, which the Supreme Court
found did not violate the Ex Post Facto Clause in Morales. Id.,
514 U.S. 499.
The parole obstacle for Brooker is that he has not convinced
the parole board that he is eligible for release because he has
not satisfied the program requirements that he openly and
honestly acknowledge his sexual offending history. He has not
shown, however, that he would have been eligible for release but
for the sexual offender programming. Given the parole board's
rules before the addition of programming, the board would not
have found Brooker eligible for parole before the program was
17 available if they determined, as they have, that based on staff
reports, he needed further treatment. Therefore, the addition of
the sexual offender programs to the considerations used for
parole does not violate the Ex Post Facto Clause.
Conclusion
Based on the record presented for summary judgment, no
material issue reguires factual development and the respondent is
entitled to judgment as a matter of law. The petitioner's
motions (documents no. 26 and 29) submitting additional evidence
are granted to the extent the additional materials were relevant
and admissible. The respondent's motion for summary judgment
(document no. 39) is granted. The clerk of court is instructed
to enter judgment accordingly and to close the case.
SO ORDERED.
Joseph A. DiClerico, Jr. District Judge
June 22, 1999
cc: Scott Brooker, pro se Jennifer B. Gavilondo, Esguire