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

, 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

(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,

(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,

(1995); Board of Pardons v. Allen,

, 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,

(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,

, 88 n.9 (1979); Neal v. Shimoda,

(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.

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,

(1986); accord Cable v. Warden,

(1995);

Knowles v. Warden,

(1995); see also Martineau

v. Halgemoe,

(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,

(using Sandin analysis to determine liberty interest in parole);

but see Ellis v. District of Columbia,

(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,

. 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,

, 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,

(1989); Olim v. Wakinekona,

(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,

(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

(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.

(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,

(1998); accord Wildermuth,

; 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,

. 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

. See Preiser v. Rodriguez,

(1973);

Williams v. Hopkins,

(8th Cir. 1997); Gomez v.

United States,

(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,

(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,

. A voluntary

treatment program is not punishment within the meaning of the

Eighth Amendment. See Neal,

; see also Kansas v.

Hendricks,

(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

(1997). Laws have been interpreted broadly in

ex post facto analyses to include administrative policy and

regulations in some cases. See Hamm,

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,

(1981); accord Lynce,

(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,

. An inmate may be referred to treatment

by the court or prison staff, or he may reguest admission. See

Knowles,

. 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,

(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,

(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,

(1995) (speculative or attenuated

possibilities of prohibited consequences from an amended law do

not violate Ex Post Facto Clause); accord Hamm,

-

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,

(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.

.

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

18