Ainsworth v. Commissioner, NH

United States Court of Appeals
For the First Circuit

No. 00-1678

WAYNE AINSWORTH, et al.,

Plaintiffs, Appellants,

v.

HENRY RISLEY,
COMMISSIONER, NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Torruella, Chief Judge,

Boudin, and Lipez, Circuit Judges.

Michael J. Sheehan for appellants.
Andrew B. Livernois, Attorney, New Hampshire Civil Bureau,
with whom Philip T. McLaughlin, Attorney General, New Hampshire
was on brief, for appellee.
 April 3, 2001

LIPEZ, Circuit Judge. A group of convicted sex offenders

claim, pursuant to 42 U.S.C. § 1983, that the New Hampshire Department

of Corrections violated their Fifth Amendment right against self-

incrimination by requiring them to disclose their histories of sexual

misconduct to participate in a sex offender treatment program. The

plaintiffs argue that the required disclosures are incriminating

because they could lead to future prosecutions or perjury charges, or

could affect ongoing appeals. They argue that the disclosures are

compelled because completion of the treatment program is a de facto

requirement for parole and for maintaining residence in desired prison

housing. The district court granted the defendant's motion to dismiss,

finding that the plaintiffs failed to state a cognizable Fifth

Amendment claim. We affirm.

I.

The facts in this case generally are not disputed. The

plaintiffs are 23 inmates in the New Hampshire State Prison who have

been convicted of sex offenses. As sex offenders, they may apply for

the prison's Sexual Offender Program (SOP), instituted in 1986.

According to its mission statement, the SOP seeks to "ensure community

safety and protection" by preventing recidivism. The program is

designed to "address sexual addiction," "help offenders understand the

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thoughts, feelings and behaviors which precede their offense," and

"develop relapse prevention skills." To that end, the SOP provides

residential therapy to 60 inmates a year.1 Participants live together

in a dorm and receive 10 to 15 hours of treatment a week for 12 to 16

months. Treatment includes community meetings, social skills training

groups, clinical groups, and a year-long structured workbook series.

Inmates must apply to the SOP to be admitted. Applicants are

placed on a waiting list. Within two years of the earliest date on

which an applicant could receive parole, two SOP staff members assess

his eligibility for the program. Selection criteria include an

applicant's willingness to admit his offense and accept responsibility

for it. "If an applicant appears open and honest, recognizes he has a

serious problem and is committed to changing his behavior, he is

approved for programming." The program bases these requirements on the

belief that sex offenders must recognize past misconduct before

effective treatment can begin.

Inmates who are accepted by the SOP must sign a "treatment

contract." Provisions of the contract include: "I agree to be complete

[sic] open and honest and assume full responsibility for my offenses

and my behavior;" and "I understand that I have committed a sexual

crime and I will be required to discuss and complete assignments

1At the time relevant to this litigation, there were about 650
sex offenders in the New Hampshire State Prison.

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regarding my sexual history/deviancy. I may be required to answer many

questions about my sexual past and my current sexual behavior."

Inmates also agree to release any information about past behavior

sought by program staff, and, if necessary, to take a lie detector test

"to ensure full disclosure of offending history." Finally, SOP

participants must sign a waiver of confidentiality. The waiver states,

in relevant part:

I have been informed that any staff member at
N.H. State Prison is required by law to report to
the appropriate authorities, including but not
limited to, the County Attorney's Office, the
State Police, Local Police, Division for Children
and Youth Services and Probation Department, any
actual or suspected sexual offense of a
specifically identifiable victim, regardless of
how the staff member gains knowledge of such
occurrence or potential occurrence.

The SOP rejects inmates who refuse to comply with the terms of the

treatment contract or to sign a confidentiality waiver. The program

also generally deems inmates whose cases are on appeal unsuitable for

treatment because they have not acknowledged responsibility for their

crime of conviction.

Lance Messinger, director of the SOP, testified about the

disclosure requirements at a hearing on the plaintiffs’ petition for

injunctive relief. Messinger said that SOP staff members do not

require applicants to identify other victims whose names have not

already been reported, and that they discourage them from providing

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specific information that could be incriminating. However, Messinger

said that if staff members already have information about an offense

with which the applicant has not been charged, they press the applicant

to admit to that offense. Such information usually comes from an

inmate's presentence report and may concern allegations about an

additional victim. Any admissions of uncharged conduct that an inmate

makes must be reported to police and prosecutors. Messinger said that

he has tried on a case-by-case basis to win immunity from prosecution

for specific SOP participants, with limited success. Messinger said

that he remembered one case within the last ten years in which the

county attorney prosecuted a case based on admissions made through the

SOP.

The individual plaintiffs in this case have had a variety of

experiences with the SOP. Some of the plaintiffs have not applied for

the SOP because of the required disclosures. Others have applied and

were rejected because they refused to admit to their crime of

conviction, because their case was on appeal, or because they refused

to admit to an uncharged offense involving an additional victim.2

2
For the purposes of our analysis, we assume that the plaintiffs
collectively present the strongest set of facts that support the claim
they have developed--in other words, that they applied to the SOP and
were rejected; that they risk future prosecution by disclosing
uncharged conduct; that they have been or will be denied parole; and
that they have been or will be transferred to a less desirable
cellblock in the prison.

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 A few of the plaintiffs must complete the SOP as a condition

of their sentence. The majority, however, applied for the program for

two reasons. First, completion of the SOP is generally, though not

always, required before sex offenders receive parole. At the

preliminary injunction hearing, an official from the New Hampshire

Adult Parole Board testified that to date 97 to 98 percent of the sex

offenders who received parole had completed the SOP. Second, sex

offenders who do not complete the SOP often are transferred from South

Unit to Hancock Building. Both South and Hancock are medium security

units, but the plaintiffs view South as preferable housing. South has

two-man cells, 24-man pods, extensive outdoor privileges, and houses

mainly sex offenders. Hancock has eight-man cells, 96-man pods, only

one hour of outdoor access, and houses mainly drug and violent

offenders. The plaintiffs testified that South is a safer unit for sex

offenders, and some of them said they had been assaulted or hassled at

Hancock. They also point out that transfers to Hancock are used to

punish South inmates who commit minor disciplinary offenses.

The plaintiffs filed this action as a petition for

declaratory and injunctive relief. A magistrate judge held a hearing

on the petition and recommended that the court grant a preliminary

injunction enjoining the defendant from making admission of uncharged

criminal conduct a condition of participation in the SOP, unless the

plaintiffs received immunity from use of their admissions in future

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prosecutions. The district court rejected the magistrate judge’s

recommendation and granted the defendant’s motion to dismiss for

failure to state a claim, finding that the plaintiffs had failed to

establish that the prison’s policies violated the Fifth Amendment

privilege against self-incrimination.

Normally, a motion to dismiss for failure to state a claim

is based only on the pleadings. See Fed R. Civ. Proc. 12(b)(6). In

this case, the district court had before it evidence developed at the

preliminary injunction hearing. See Developmental Disabilities

Advocacy Center, Inc. v. Melton, 689 F.2d 281, 282 (1st Cir. 1989).

Both the court and the parties repeatedly referred to this evidence,

effectively converting the motion to dismiss to a motion for summary

judgment. Fed. R. Civ. Proc. 12(b)(6) ("If, on a motion . . . to

dismiss for failure . . . to state a claim . . . matters outside the

pleading are presented to and not excluded by the court, the motion

shall be treated as one for summary judgment."). We thus review the

district court’s decision according to summary judgment standards,

considering the facts and all reasonable inferences to be drawn from

them in the light most favorable to the nonmoving party. See F.D.I.C.

v. Kooyomjian, 220 F.3d 10, 13-14 (1st Cir. 2000). The moving party

prevails if there is no genuine dispute as to any material fact and the

party is entitled to judgment as a matter of law. See Fed. R. Civ.

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Proc. 56(c). Our review is de novo. See Garside v. Osco Drug, Inc.,

895 F.2d 46, 48 (1st Cir. 1990).

II.

The Fifth Amendment prevents any person from being "compelled

in any criminal case to be a witness against himself." U.S. Const.

amend. V. The Amendment's self-incrimination clause applies to the

states through the Fourteenth Amendment. See Spevack v. Klein, 385

U.S. 511, 514 (1967). The protection against self-incrimination

extends beyond criminal investigations, privileging a witness "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." Lefkowitz v. Turley, 414 U.S. 70, 77

(1973). A criminal defendant who has been convicted retains the

privilege after imprisonment as long as his testimony may be used

against him in a future trial for a crime of which he has not yet been

convicted. See Mitchell v. United States, 526 U.S. 314, 325 (1999);

Minnesota v. Murphy, 465 U.S. 420, 426 (1984). Two criteria must be

met in order for the privilege to apply: the witness must reasonably

believe that his statements may be used to incriminate him, Hoffman v.

United States, 341 U.S. 479, 486 (1951), and the statements must be

compelled. Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977) ("the

touchstone of the Fifth Amendment is compulsion"). Compulsion exists

when some factor denies the individual the "free choice to admit, to

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deny, or to refuse to answer." Lisenba v. California, 314 U.S. 219,

241 (1941).

The Supreme Court has found testimony to be compelled in

several contexts. For example, the Court has found that the state

impermissibly compelled testimony by forcing police officers and city

employees to choose between incriminating themselves and losing their

jobs. See Garrity v. New Jersey, 385 U.S. 493 (1967); Gardner v.

Broderick, 392 U.S. 273, 274 (1968); Uniformed Sanitation Men Ass’n v.

Comm’r of Sanitation of New York, 392 U.S. 280 (1968). The Court also

has found that the statements of an attorney made at a disciplinary

proceeding under threat of disbarment were compelled, see Spevack, 385

U.S. at 516. And it has invalidated state statutes that stripped an

attorney of his state political party office and architects of a city-

awarded contract because they refused to waive their Fifth Amendment

privilege. See Cunningham, 431 U.S. at 808; Turley, 414 U.S. at 85.

In these early cases, the consequences of refusing to give

potentially incriminating testimony were economic. Yet the Court

described compulsion in relatively broad terms. In Spevack, the Court

said that a "'penalty' is not restricted to fine or imprisonment" but

instead means "the imposition of any sanction which makes assertion of

the Fifth Amendment privilege 'costly.'" Spevack, 385 U.S. at 515

(citing Griffin v. California, 380 U.S. 609, 614 (1965)). In

Cunningham, the Court said that the Fifth Amendment protects against

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state-imposed "potent sanctions" or "substantial penalties."

Cunningham, 431 U.S. at 805. The Court also "rejected the notion that

citizens may be forced to incriminate themselves because it serves a

governmental need," saying that the interests of the state, even if

compelling, do not "justify infringement of Fifth Amendment rights."

Id. at 808.

Later Supreme Court cases, however, have qualified the

application of these broad, rights-protective statements in cases

involving prisoners, holding that courts must consider the state’s

interest in imposing a rule or requirement related to imprisonment when

deciding whether that requirement violates an inmate’s constitutional

rights. The watershed case is Turner v. Safley, 482 U.S. 78 (1987), in

which the Court said that "when a prison regulation impinges on

inmates’ constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological interests." Id. at 89.

As we have said before in assessing the impact of Turner, "[w]here

burdens are laid upon the exercise of constitutional rights by

prisoners, the Supreme Court’s current approach is to give very

substantial latitude to the state’s judgment." Beauchamp v. Murphy, 37

F.3d 700, 704 (1st Cir. 1994), cert. denied, 514 U.S. 1019 (1995).3

3 The Supreme Court has used Turner’s reasonableness test, for
example, in rejecting prisoners’ First Amendment claims. See, e.g.,
O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) (prison officials
acted reasonably by precluding Islamic inmates from attending weekly
Friday religious service and thus did not violate the First Amendment);

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 As was the case in Beauchamp, Turner differs from the case

at hand because it involved "the actual running of prisons and the most

practical considerations of discipline, security, administrative

feasibility and cost." Id. The state offers treatment to sex

offenders out of concern about prisoners’ post-release conduct--most

pressingly, in hopes that such treatment will reduce recidivism rates

by helping to rehabilitate SOP participants--rather than out of concern

about effective prison management. Still, the state’s interest remains

relevant to determining whether the SOP’s required admissions violate

the plaintiffs’ Fifth Amendment rights. "The limitations on the

exercise of constitutional rights arise both from the fact of

incarceration and from valid penological objectives--including

deterrence of crime, rehabilitation of prisoners, and institutional

security." O’Lone v. Shabazz, 482 U.S. 342, 348 (1987). In light of

Turner, the burden that a prison rule or requirement places on an

inmate’s constitutional rights

cannot be unreasonable, and reasonableness
largely turns upon the facts. With some emphases
peculiar to prison regulation, Turner itself
identifies pertinent criteria: whether the
state’s policy serves a valid governmental

Thornburgh v. Abbott, 490 U.S. 401 (1989) (reasonable and so
constitutional to regulate prisoners’ mail). And the Court has been
similarly deferential to the state’s interests in Fifth Amendment due
process cases, holding that prisoners’ liberty interests extend only to
freedom from restraint that "imposes atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison life."
Sandin v. Conner, 515 U.S. 472, 472 (1995).

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 interest; the extent to which the prisoner is
foreclosed or burdened in exercising his rights;
and the presence or absence of reasonable
alternatives for the government to achieve the
same ends by other means without significant cost
or impairment of the governmental interest at
stake.

Beauchamp, 37 F.3d at 705 (citing Turner, 482 U.S. at 89-91).4

As the defendant concedes, the plaintiffs can easily show

that the SOP’s required disclosures are incriminating. To participate

in the program, the plaintiffs must admit to uncharged offenses as well

as the behavior that led to their crime of conviction. They receive no

guarantee of immunity from prosecution--to the contrary, they are told

that incriminating statements will be reported to police and

prosecutors. In addition, an offender’s admission to his crime of

conviction could expose him to future prosecution for perjury if he

denied guilt at trial, or could undermine an ongoing appeal. See Lile

v. McKune, 224 F.3d 1175, 1180 (10th Cir. 2000) petition for cert.

filed, 69 U.S.L.W. 3506 (U.S. Jan. 22, 2001) (No. 00-1187).

Thus the real question before us is whether the disclosures

required by the SOP are unconstitutionally compelled within the meaning

of the Fifth Amendment. The plaintiffs offer two sets of facts to show

that the consequence of their refusal to make the admissions required

by the SOP is a penalty sufficient to constitute compulsion. First,

4We set aside a fourth consideration in Turner, the effect of the
remedy sought on the prison and other inmates, because it is "linked
peculiarly to prison operations." Beauchamp, 37 F.3d at 705 n.1.

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the plaintiffs claim that because the parole board has denied or will

deny them parole until they complete the SOP, they have no choice but

to comply with the program’s requirements. Second, they argue that

failure to complete the SOP has led or will lead to a "punitive

transfer" from South Unit to Hancock Building, and that this transfer

is sufficient punishment to compel their admissions. With particular

attention to the burden element, we apply Turner’s three-part test to

determine whether the denial of parole or the prison housing transfer

are penalties sufficient to compel speech within the prohibition of the

Fifth Amendment. See Lile, 224 F.3d at 1190 (applying Turner to

prisoners' Fifth Amendment claims).

A. Denial of Parole

1. Valid Government Interest

New Hampshire law gives the parole broad discretion over

release decisions, directing the board to base its judgment on whether

there is a "probability that the inmate will remain at liberty without

violating any law and will conduct himself as a good citizen." N.H.

Code of Admin. Rules. Ann. § 301.01. Whether a sex offender has

completed the SOP is one factor that the New Hampshire parole board may

consider in deciding whether a sex offender merits early release. See

N.H. Code of Admin. R. Ann. § 301.02(h) (parole board may take into

account evidence of "self-improvement" achieved through prison

programs, "specifically programs which addressed problems or issues

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that contributed to the inmate’s prior criminal conduct"). The

question under Turner is whether this consideration is based on a valid

governmental interest.

Unquestionably, the state has an acute interest in seeking

to rehabilitate sex offenders in hopes of deterring future crime,

particularly given the large body of research showing that sex

offenders commit repeat crimes at alarming rates.5 To that end, New

Hampshire established the SOP. The program’s requirement that

participants admit to their crimes is widely believed to be a necessary

prerequisite to successful treatment.6 While some research stresses the

difficulty of drawing conclusions about the success rates of sex

offender treatment,7 other studies show that treated sex offenders are

5 See Katie Isaac, Kansas v. Hendricks: A Perilous Step Forward in
the Fight Against Child Molestation, 35 Hous. L. Rev. 1295, 1296 (1998)
(citing a 1993 study that found that "forty-two percent of imprisoned
child molesters are later reconvicted for violent or sexual crimes").
6 See Brendan J. Shevlin, "[B]etween the Devil and the Deep Blue
Sea:" A Look at the Fifth Amendment Implications of Probation Programs
for Sex Offenders Requiring Mandatory Admissions of Guilt, 88 Ky. L.J.
485, 485 (2000); Jonathan Kaden, Therapy for Convicted Sex Offenders:
Pursuing Rehabilitation Without Incrimination, 89 J. Crim. L. &
Criminology 347, 365 n.103(1998); Scott Michael Solkoff, Judicial Use
Immunity and the Privilege Against Self-Incrimination in Court Mandated
Therapy Programs, 17 Nova L. Rev. 1441, 1450 (1993).
7 See David DePugh, The Right to Treatment for Involuntarily
Committed Sex Offenders in the Wake of Kansas v. Hendricks, 17 Buff.
Pub. Int. L.J. 71 n.140 (1999); Jessica Wilen Berg, Give Me Liberty or
Give Me Silence: Taking a Stand on Fifth Amendment Implications for
Court-Ordered Therapy Programs, 79 Cornell L. Rev. 700, 700 n.2 (1994).

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less likely to commit new crimes.8 Indeed, the SOP may be achieving

some success. Director Lance Messinger testified that twelve percent of

untreated offenders released from the prison since 1980 returned on a

new sex-offense conviction, while only six percent of those who

completed the SOP did. New Hampshire unmistakably has a valid

government interest in establishing the SOP, and in requiring sex

offenders to admit past conduct to participate in it.

2. Burden on the Exercise of Plaintiffs’ Rights

The plaintiffs argue that the denial of parole is a penalty

because it forces them to serve a longer prison term than they

otherwise would. For example, an inmate with an indeterminate sentence

of seven to fifteen years who has no disciplinary infractions would

become eligible for parole after serving seven years, but would most

likely serve his full sentence if he does not complete the SOP. The

defendant counters that parole is not a right but a privilege. He

points out that inmates do not have a "liberty right" to parole under

the Due Process Clause of the Fifth Amendment, see Greenholtz v.

Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7

(1979), or under New Hampshire law, see N.H. Rev. Stat. Ann § 651-

8 See Kaden, supra note 6, at 365 n.103 (citing one study in which
60 percent of untreated offenders committed another crime, and another
in which only eight of 100 treated offenders did so); Solkoff, supra
note 6, at 1450 (citing study in which the four-year recidivism rate
decreased from 60 percent for untreated offenders to 25 percent for
treated offenders).

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A:6(I) (providing that a "prisoner may be released on parole upon the

expiration of the minimum term of his sentence") (emphasis added);

Knowles v. Warden, New Hampshire State Prison, 666 A.2d 972, 975 (N.H.

1995); Baker v. Cunningham, 513 A.2d 956, 960 (N.H. 1986).

The lack of a liberty interest in parole, however, does not

settle the question of whether the denial of parole can constitute a

penalty for the purpose of Fifth Amendment compulsion. From Garrity to

the recent case Ohio Adult Parole Authority v. Woodard, the Supreme

Court has evaluated Fifth Amendment self-incrimination claims without

reference to a liberty interest analysis. See, e.g., Garrity, 385 U.S.

at 496-501; Woodard, 523 U.S.272, 285-88 (1998); compare Lile, 224 F.3d

at 1183.

The SOP’s requirement that offenders disclose uncharged

conduct, at the risk that their admissions will be reported to police

and prosecutors, presents the plaintiffs with a difficult dilemma.

This dilemma undoubtedly imposes some burden on the exercise of their

Fifth Amendment rights. The extent of the burden is mitigated,

however, by three factors: the kind of burden the plaintiffs face, the

voluntary nature of their choice about whether to participate in the

SOP, and the fact that the denial of parole does not follow

automatically from the refusal to speak.9

9 The plaintiffs' brief asserts that some of the plaintiffs apply
for the SOP "because their sentence specifically requires completion."
These plaintiffs may have a stronger claim of Fifth Amendment

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 First, parole involves relief from a penalty that has already

been imposed--the full period of incarceration to which the plaintiffs

were sentenced. There is no new or additional penalty for refusing to

participate in the SOP. To the extent that such labels are useful, the

SOP is a benefit that New Hampshire makes available to sex offenders,

and parole is a further benefit that the state may condition on

completion of the program. See Greenholtz, 442 U.S. at 11 ("That the

state holds out the possibility of parole provides no more than a mere

hope that the benefit will be obtained.").10

Because the plaintiffs have not yet obtained release, the

nature of the penalty they face differs from the one at issue in

Minnesota v. Murphy, 465 U.S. 420 (1984). Murphy was required to

compulsion. However, the plaintiffs in no way develop this argument in
their brief, precluding our consideration of the implications of any
such sentencing requirements.
10 The plaintiffs unsuccessfully look for support to Neal v.
Shimoda, 131 F.3d 818 (9th Cir. 1997). In Neal, the Ninth Circuit held
that a prison regulation that labeled inmates as sex offenders and
required completion of a sex offender treatment program as a condition
for parole eligibility created a liberty interest and some due process
protection for prisoners who had not been convicted of sexual
misconduct. See id. at 830. Since Neal found that an inmate’s due
process rather than Fifth Amendment self-incrimination rights were
violated by the prison regulation at issue, it is not contrary to our
holding here. Moreover, the Ninth Circuit emphasized the automatic
nature of the denial of parole in finding a liberty interest to be at
stake. See id. at 829 ("[B]ecause the State's regulations render the
inmate completely ineligible for parole if the treatment program is not
satisfactorily completed, the attachment of the 'sex offender' label to
the targeted inmate has a practical and inevitable coercive effect on
the inmate's conduct.") (emphasis in original).

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attend a treatment program for sex offenders as a condition of his

probation. When his probation officer questioned him about admissions

Murphy made during the course of treatment regarding an uncharged rape

and murder, he confessed to those crimes. See id. at 424. His

statements were then used to prosecute him. Murphy argued that his

statements were compelled because his probation would have been revoked

had he refused to answer. See id. at 434. The court agreed that the

state could not directly link invocation of the Fifth Amendment

privilege to revocation of probation, stating:

There is thus a substantial basis in our cases
for concluding that if the state, either
expressly or by implication, asserts that
invocation of the privilege would lead to
revocation of probation, it would have created
the classic penalty situation . . . and the
probationer’s answers would be deemed compelled
and inadmissible in a criminal prosecution.

Id. at 435. The Court held, however, that Murphy’s confessions were

not compelled because there was "no suggestion that his probation was

conditional on his waiving his Fifth Amendment privilege." Id. at

437.11

While both Murphy and the case at hand involve the issue of

prosecution based on criminal admissions made during a sex offender

treatment program, Murphy’s "classic penalty" scenario does not apply

11 Of course, the quoted statement in Murphy is 17-year-old dictum,
and we do not know how the present Supreme Court would view disclosure
obligations imposed on parolees. Compare Asherman v. Meachum, 957 F.2d
978 (2d Cir. 1992).

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here. A probationer or parolee has already achieved liberty, and thus

has an expectation of retaining it. An inmate who has not been granted

parole has no such expectation. See Greenholtz, 442 U.S. at 9 ("There

is a crucial distinction between being deprived of a liberty one has,

as in parole, and being denied a conditional liberty that one

desires."). Moreover, the parole board has already weighed the safety

risk posed by the probationer or parolee and decided that he or she is

fit to rejoin the community. Before release, an inmate has not passed

this threshold test. In Greenholtz, the Court viewed these differences

as support for its holding that inmates do not have a constitutional

due process right to parole, in contrast to already released offenders,

who do have due process rights when the state seeks to revoke their

parole or probation. See id. at 9. Similarly, a treatment program

that conditioned participation on incriminating admissions might

violate the Fifth Amendment if that program was in turn a condition of

probation or of maintaining parole, but a program that conditioned

participation on incriminating admissions as a condition of obtaining

release on parole does not. The case law recognizes this distinction.

Following Murphy, some courts have found Fifth Amendment violations

where sex offenders were required to disclose past misconduct for

treatment programs that were a condition of probation or a court-

suspended sentence. See Mace v. Amestoy, 765 F.Supp. 847, 850 (D. Vt.

1991); State v. Fuller, 915 P.2d 809, 814 (Mont. 1996); State v. Imlay,

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813 P.2d 979, 985 (Mont. 1991); State v. Kaquatosh, 600 N.W.2d 153, 158

(Minn. Ct. App. 1999); cf. United States v. Davis, 2001 WL 224550 *2

(1st Cir. 2001) (probationer free to challenge revocation of supervised

release as a penalty for exercise of Fifth Amendment privilege should

revocation occur); but see Asherman v. Meachum, 957 F.2d 978 (2d Cir.

1992) (en banc). But courts have denied claims where treatment

programs were a condition of initial parole eligibility. See Doe v.

Sauer, 186 F.3d 903 (8th Cir. 1999); Russell v. Eaves, 722 F. Supp. 558

(E.D. Mo. 1989).

The second factor that mitigates the burden imposed by the

SOP’s disclosure requirement is the relatively voluntary nature of the

plaintiffs’ decision about whether to participate in the program. The

relevant precedent is Ohio Adult Parole Authority v. Woodard, 523 U.S.

272 (1998). Woodard, who had been sentenced to death, said that Ohio’s

clemency process violated his Fifth Amendment rights by forcing him to

answer questions at his one guaranteed clemency interview, or, if he

remained silent, permitting his silence to be used against him. He

argued that the "interview unconstitutionally condition[ed] his

assertion of the right to pursue clemency on his waiver of the right to

remain silent." Id. at 285-86.

The Court rejected this argument on the ground that Woodard

was not required to attend or speak at his clemency hearing. The Court

said: "It is difficult to see how a voluntary interview could 'compel'

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respondent to speak. He merely faces a choice quite similar to the

sorts of choices that a criminal defendant must make in the course of

criminal proceedings, none of which has ever been held to violate the

Fifth Amendment." Id. at 287. The Court recognized that Woodard faced

a choice between "providing information to the [Parole] Authority--at

the risk of damaging his case for clemency or for postconviction

relief--or of remaining silent." Id. at 287-88. But that choice,

despite its consequences, did not support a claim within the meaning of

the Fifth Amendment's self-incrimination clause. The Court said that

the "pressure to speak in the hope of improving [respondent's] chance

of being granted clemency does not make the interview compelled." Id.

at 288.

Whether the choice that the plaintiffs here face is voluntary

in a meaningful sense seems to us a closer question. By making the

admissions required by the SOP, the plaintiffs risk not only damaging

their cases on appeal, but also exposing themselves to future

prosecution. If the plaintiffs refuse to speak, they face the strong

possibility of serving more years in prison than they otherwise would.

Still, like Woodard, the plaintiffs have a choice about participating

in the SOP, despite the consequences that follow from that choice. The

plaintiffs’ choice about whether to disclose past misconduct is

voluntary as Woodard understands the term.

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 The third factor we consider is whether the denial of parole

follows automatically from the plaintiffs’ refusal to speak. Some of

the plaintiffs testified that prison officials told them that they

would not be granted parole unless and until they completed the SOP,

and the defendant does not dispute that completion of the SOP functions

as a de facto requirement of parole for most New Hampshire sex

offenders. At the same time, the defendant has shown that a few

inmates who have not completed the SOP receive parole each year under

special circumstances.12 These unusual grants of release are possible

because New Hampshire’s parole statute nowhere states that the board

must reject a parole applicant because he has not completed the SOP.

As we have noted, New Hampshire’s parole statute gives the parole board

broad discretion to decide whether an inmate is likely to obey the law

and observe the terms of his release. See Baker, 513 A.2d at 960.

The distinction between a highly probable de facto

requirement and a statutorily mandated one has legal significance. In

the early Supreme Court cases that we have discussed, the state imposed

automatic penalties on those who refused to waive their right against

self-incrimination. The police officers in Gardner and Garrity and the

city employees in Uniformed Sanitation Men Association were discharged

12
At the preliminary injunction hearing, a parole board official
testified that one offender who had been released was convicted of a
relatively minor offense and had an elderly, blind mother for whom he
was the sole provider.

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because they invoked their Fifth Amendment rights and refused to

testify. The lawyer in Spevack was disbarred for the same reason. In

Turley and Cunningham, the Court declared unconstitutional New York

statutes that automatically stripped government contracts and political

party office from anyone who refused to waive his or her immunity.

By contrast, Baxter v. Palmigiano, 425 U.S. 308 (1976),

concerned the question of whether prison officials could draw an

adverse inference from an inmate’s silence at a disciplinary

proceeding. The Court held that the Fifth Amendment did not forbid the

state from drawing such an inference, given the civil nature of the

disciplinary proceeding.13 The Court distinguished Baxter from its

previous holdings on the ground that the state did not require

Palmigiano to waive his privilege, but rather said that his silence

could be used against him if he did not waive it. In addition,

Palmigiano could not be "automatically found guilty" as a consequence

of his refusal to testify because prison regulations required that

substantial evidence support a disciplinary decision. Id. at 317-318.14

13Baxter noted that no criminal proceedings were pending against
Palmigiano and distinguished the case from earlier holdings in part on
that ground. See Baxter, 452 U.S. at 317. However, this court has
applied Baxter in cases involving criminal charges. See, e.g., United
States v. Stein, 233 F.3d 6, 16 n.5 (1st Cir. 2000).
14Cunningham distinguished Baxter on this ground, stating:
"Respondent’s silence in Baxter was only one of a number of factors to
be considered by the finder of fact in assessing a penalty, and was
given no more probative value than the facts of the cases warranted;
here, refusal to waive the Fifth Amendment privilege leads

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In finding that drawing such an inference was permissible, the Court

noted that the state had not "insisted or asked" that the defendant

waive his Fifth Amendment privilege. Id. at 317. Nor was the

defendant "in consequence of his silence automatically found guilty of

the infraction with which he has been charged." Id. On the ground

that an inmate’s silence "in and of itself" did not trigger a sanction,

the Court distinguished Baxter from earlier cases such as Garrity and

Turley. Id. at 317-18.

We recently relied on Baxter and its reading of precedent in

rejecting an attorney’s claim that her testimony before the

Massachusetts Board of Bar Examiners was coerced because she believed

that she would be disbarred if she remained silent. See United States

v. Stein, 233 F.3d 6 (1st Cir. 2000), petition for cert. filed, (U.S.

Feb. 26, 2001) (No. 00-1354). We discussed the automatic penalties

faced in Gardner and Garrity, and concluded:

Where, however, invocation of the Fifth Amendment
does not, by itself, result in forfeiture of the
job or license in question, the fact that
claiming the Fifth may, as a practical matter,
result in damage to one’s chances of retaining
the privilege at stake does not necessarily
establish a constitutional violation.

Id. at 15. Three related facts led us to reject the attorney’s claim.

She was not subject to automatic disbarment for remaining silent; the

automatically and without more to imposition of sanctions."
Cunningham, 431 U.S. at 808 n.5.

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Board of Bar Examiners was not required to disbar her; and the board

had no formal rule or unwritten policy or practice of disbarring

attorneys for invoking their Fifth Amendment privilege. See id. at

16.15

Parallel facts are present here. The plaintiffs do not

automatically lose parole eligibility because they remain silent, the

parole board is not required to deny them parole, and the board has no

formal rule denying parole to sex offenders who do not complete the

SOP. See, e.g., Lile, 224 F.3d at 1182 (inmates required to admit past

misconduct for admission to a sex offender treatment program could not

show Fifth Amendment compulsion based on denial of parole because they

were not required to complete the treatment program for parole

eligibility). According to the plaintiffs, the board does have such an

unwritten policy or practice. But the defendant in Stein made a

15
The Second Circuit relied on a related rationale in two cases
cited by the defendant, Asherman v. Meachum, 957 F.2d 978 (2d Cir.
1992) (en banc), and Johnson v. Baker, 108 F.3d 10 (2d Cir. 1997). In
Asherman, the court found that revocation of a prisoner’s supervised
home release for his refusal to answer questions at a psychiatric
evaluation did not violate the Fifth Amendment. In Johnson, the court
found that an inmate’s Fifth Amendment rights were not violated by a
sex offender treatment program that required admissions of past
misconduct, and that was a prerequisite for a program that allowed
inmates to spend extended time with their families. Both cases
distinguished between a state’s adverse action against an individual
for invoking the right to self-incrimination and an action taken "for
failure to answer a relevant inquiry." Asherman, 957 F.2d at 982. The
court found that the inquiries made of the defendants in these cases
were relevant to the state’s public responsibilities. Id. at 983. In
Johnson, these responsibilities concerned sex offender rehabilitation.
See Johnson, 108 F.3d at 11.

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similar argument to no avail, and we see no reason to distinguish this

case on that ground. It is entirely permissible for a parole board to

take into account an inmate’s efforts to rehabilitate himself by

participating in a prison program designed to address his prior

criminal conduct. But to say that the parole board may consider an

inmate’s completion of a prison treatment program is not to say that it

must make a decision on that basis. That the board often weighs

heavily completion of the SOP in deciding whether to parole sex

offenders does not change the calculation. See Stein, 233 F.3d at 17

n.6 (fact that defendant "could have had good reason to fear disbarment

if she did not testify is not the same as being faced with automatic

disbarment for failure to testify"); United States v. Indorato, 628

F.2d 711, 716 (1st Cir. 1980) (fear of punishment as a result of

invoking the Fifth Amendment does not protect against subsequent use of

self-incriminating statements at a criminal trial).

3. Reasonable Alternatives

The third step under Turner requires us to consider whether

reasonable alternatives exist for the government to achieve its ends

without significant cost or impairment to the governmental interest at

stake.

Some states address the incrimination dilemma posed by sex

offender treatment programs by asking inmates seeking treatment only to

admit to 0misconduct of which law enforcement officials are already

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aware. See Neal v. Shimoda, 131 F.3d 832, 833 n.18 (9th Cir. 1997)

(citing provision of sex offender consent to treat contract stating, "I

understand that I am not required to provide information about crimes

that no one knows about"); Russell v. Eaves, 722 F. Supp. 558, 560

(E.D. Mo. 1989). Courts have also suggested that states grant use

immunity to sex offenders before requiring them to disclose past

misconduct during the course of treatment. See Lile, 224 F.3d at 1192;

Mace, 765 F. Supp. at 852; Fuller, 915 P.2d at 816; Imlay, 813 P.2d at

985.

A grant of limited use immunity need not conflict with

public safety, since it allows the state to prosecute the recipient

"for any crime of which he may be guilty . . . provided only that his

own compelled testimony is not used to convict him." Cunningham, 431

U.S. at 809 (comparing use immunity to broader transactional immunity,

which immunizes witnesses from prosecution for any transaction about

which they testify). Granting use immunity may in fact further the

state’s goal of rehabilitation by encouraging inmates to admit their

sex offenses, thus removing an obstacle to treatment. See Lile, 224

F.3d at 1192. Use immunity is the solution proposed by commentators

concerned about the tension between an inmate’s right against self-

incrimination and the state’s interest in pressing sex offenders to

admit past misconduct as a first step toward effective treatment. See

Shevlin, supra note 6, at 486; Kaden, supra note 6, at 350; Solkoff,

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supra note 6, at 1444. In his testimony at the preliminary injunction

hearing, SOP Director Lance Messinger expressed similar concerns,

saying that he tries to obtain use immunity for inmates when he thinks

they could be prosecuted on new charges based on information disclosed

during treatment.

This may indeed be a desirable outcome. But we agree with

the district court that the decision about whether to grant immunity to

sex offenders is a policy choice that lies in the state’s hands. We

think that it is for New Hampshire to say whether it could do so

without impairing the governmental interest at stake.

4. Conclusion under Turner

Our Turner analysis reflects the closeness of the Fifth

Amendment self-incrimination question presented here. Given the stakes

in parole and the avoidance of further prosecutions, the plaintiffs do

suffer some burden in the exercise of their Fifth Amendment rights when

they must choose between declining to participate in the SOP, which

significantly enhances their chances for parole, or disclosing other

criminal conduct. The availability of use immunity at least suggests

the possibility of an alternative means of advancing the state's

interest in securing inmate participation in the SOP without

necessarily compromising future prosecutions for other instances of

sexual misconduct.

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 On the other hand, the state's interest in reducing the

recidivism of sex offenders is substantial. There may be undesirable

penological and law enforcement implications to the grant of use

immunity in the sensitive context of sexual misconduct cases that we do

not fully appreciate. The burden on the exercise of the Fifth

Amendment rights of the plaintiffs is lessened significantly by the

factors we have cited: the denial of parole does not impose a new

penalty on the plaintiffs, the plaintiffs may choose not to participate

in the SOP, and the denial of parole does not automatically follow from

a decision not to participate.

Weighing these factors, and drawing upon the meaning of

compulsion under the Fifth Amendment developed by the precedents we

have cited, we conclude that the reduced likelihood of parole for

refusing to participate in the SOP does not constitute a penalty

sufficient to compel incriminating speech in violation of the Fifth

Amendment.

B. Prison Housing Transfer

The alternate basis for the plaintiffs’ claim of compulsion

is the transfer from South Unit to Hancock Building that often follows

a refusal to participate in the SOP. The plaintiffs claim the transfer

is a penalty for Fifth Amendment purposes because it significantly

affects their living circumstances. This question is not close.

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 Plaintiffs’ preference for South housing is understandable.

At the preliminary injunction hearing, prison officials testified that

Hancock is the prison’s "low-rent district" and compared South to a

hotel. The plaintiffs cite several advantages of living in South.

They have greater outdoor privileges; they live in two-man rather than

eight-man cells; they live on smaller "pods," or living groups. As

evidence that the move to Hancock is punitive, the plaintiffs argue

that such transfers are used to punish inmates who break the rules.

Some of the plaintiffs also said that even though both facilities are

classified as medium security, they feel safer at South because most of

the other inmates are also sex offenders. In Hancock, where they are

surrounded by violent and drug offenders, they are targets of

harassment and assault.

The plaintiffs’ claim that the transfer from South to Hancock

is a penalty for Fifth Amendment purposes fails under the Turner

analysis. First, the state has a valid governmental interest in

controlling where prisoners will be housed. Once an offender has been

sentenced, New Hampshire gives broad discretion to prison officials

over the "terms, conditions, and place of incarceration." State v.

Peabody, 438 A.2d 305, 308 (N.H. 1981); see also N.H. Rev. Stat. Ann.

§ 651:25. At the hearing on the plaintiffs’ petition for injunctive

relief, prison officials testified that they offer housing transfers as

an incentive to encourage inmates to act in particular ways. Prisoners

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may earn a place in South because they have a clean disciplinary record

or because they participate in a treatment program like the SOP. In

either case, the transfer to South is a benefit conferred on inmates

who earn it. This kind of reward system easily meets Turner's

legitimate penological interest standard.

The second and third Turner factors also weigh against the

plaintiffs. The quality-of-life differences between South and Hancock

are not severe enough to burden the exercise of the plaintiffs'

constitutional rights. Nor is there a reasonable alternative to giving

prison officials broad discretion over inmate housing. For the reasons

stated, the housing transfers do not rise to the level of a penalty

that establishes Fifth Amendment compulsion.16

IV.

We are unpersuaded by the plaintiffs’ claim that their Fifth

Amendment right against self-incrimination was violated by New

16We distinguish this case from Lile v. McKune, 224 F.3d 1175
(10th Cir. 2000), in which the Tenth Circuit found a Fifth Amendment
violation where sex offenders who refused to disclose their past
misconduct in order to participate in a prison treatment program were
automatically transferred from a medium to a maximum security facility.
The transfer resulted in loss of the following privileges: personal
television; limited access to prison organizations, activities, gym,
and yard; reduction in spending allowed in the canteen per pay period
from $140 to $20; reduction in pay and intake property; restricted
visiting privileges. See id. at 1181. The consequences of the
transfer described in Lile are more severe than those the plaintiffs
say accompany a transfer from South to Hancock. In addition, the
transfer in Lile automatically followed from an inmate’s decision not
to pursue treatment, whereas the transfers to Hancock complained of
here are likely rather than automatic. See id.

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Hampshire’s requirement that they disclose their histories of sexual

misconduct to participate in a prison treatment program that affects

their chances of obtaining early release on parole and of maintaining

residence in desired prison housing. The defendant is entitled to

judgment as a matter law. We affirm the district court.

Affirmed.

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