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.

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

(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.,

(1st

Cir. 1996). "Likelihood of success is the main bearing wall of

the four-factor framework."

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,

(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,

(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,

(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,

(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,

(1984) (discussing the

scope of the Fifth Amendment privilege probationers enjoy); see

also U.S. v. Perez-Franco,

(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,

(D. Kan.

1998) (citing Baxter v. Palmiqiano,

(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,

, for purposes of this Fifth Amendment

analysis. See Perez-Franco,

(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,

(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,

(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,

, or some other

penalty if the answers sought are not provided. See Perez-

Franco ,

(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,

.

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."

(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,

.

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,

(1983) (citing Meachum v. Fano,

(1976) and

Montanve v. Havmes,

(1976) to support the conclusion

that prisoners have no liberty interest protecting them from

either intrastate or interstate transfers); see also State v.

Peabody,

,

(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,

-47 (quoting Meachum,

). 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,

,

(1986) (holding New

Hampshire law does not create a constitutional or statutory right

18 to parole); see also Bussiere v. Cunningham,

, 752-

52,

(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,

, 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,

, 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,

,

(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."

. 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.

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

; 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,

(1960); United

States v. Johnson,

(1st Cir. 1973)

("conviction, of course, removed any claim of privilege based

22 upon liability for that offense"); see also United States v.

Albert,

(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,

(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,

, 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,

(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,

-35 (citing cases);

Garritv v. New Jersey,

(1967) (threatened discharge

from employment for failing to provide the incriminating answers

sought constituted compulsion); Uniformed Sanitation Men v.

Commissioner of Sanitation,

(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,

(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,

(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

at

4 63-65; see also United States v. Corbin,

(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,

(finding "imprisonment is one of a wide variety of penalties

which can serve to trigger a constitutional violation"); Lile,

(holding loss of privileges and transfers

to maximum custody were sufficiently penalizing to compel self-

incriminating admissions); cf. Minnesota v. Murphy,

(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,

(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,

(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,

(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,

(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,

(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,

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,

(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,

(1st Cir. 1992);

United States v. Valecia-Copete,

(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.

34