United States Court of Appeals
For the First Circuit
No. 00-1678
WAYNE AINSWORTH, et al.,
Plaintiffs, Appellants,
v.
PHILLIP STANLEY,*
COMMISSIONER, NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COURT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, and Lipez, Circuit Judges
Michael J. Sheehan, Esq. for appellants.
Andrew B. Livernois, Assistant Attorney General, with whom
Philip T. McLaughlin, Attorney General of the State of New
Hampshire was on brief, for appellee.
December 24, 2002
*
Pursuant to Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, we hereby substitute the current Commissioner Phillip
Stanley for the late Henry Risley.
LIPEZ, Circuit Judge. A group of convicted sex offenders
brought this action against the New Hampshire Department of
Corrections ("DOC"), claiming that the DOC violated their Fifth
Amendment right against self-incrimination by requiring them to
disclose their histories of sexual misconduct to participate in the
DOC's Sex Offenders Program ("SOP").
The district court granted the DOC's motion to dismiss in
May 2000, see Ainsworth v. Cantor, No. Civ. 99-447-M, 2000 WL
1499495 (D.N.H. May 18, 2000). An appeal followed. In April 2001,
we issued an opinion affirming the district court, see Ainsworth v.
Risley, 244 F.3d 209 (1st Cir. 2001), and in July 2001 appellants
petitioned the United States Supreme Court for a writ of
certiorari. The Court did not immediately act on the petition.
In June 2002 the Supreme Court decided McKune v. Lile,
536 U.S. ____, 122 S. Ct. 2017 (2002), involving a similar
challenge to Kansas's sex offender treatment program. By a five-
to-four vote, the Court upheld the constitutionality of the Kansas
program. There was, however, no majority opinion. A plurality of
four justices found that the Kansas program "does not compel
prisoners to incriminate themselves in violation of the
Constitution." Id. at 2026 (plurality opinion). Justice O'Connor,
writing a separate concurrence, agreed with the result reached by
the plurality, but expressly disagreed with its reasoning. See id.
at 2032–33 (O'Connor, J., concurring in the judgment). Four
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dissenting justices would have held the Kansas program
unconstitutional. See id. at 2035 (Stevens, J., dissenting).
Shortly after the Supreme Court's decision in McKune, the
Court granted the Ainsworth plaintiffs' petition for certiorari
and summarily vacated our earlier decision, remanding the case for
further consideration in light of McKune. See Ainsworth v.
Stanley, 536 U.S. ____, 122 S. Ct. 2652 (2002) (mem.). We then
gave the parties an opportunity to file supplemental briefs
addressing the effect of McKune on our prior opinion. Now, upon
due consideration of McKune and the parties' submissions, we once
again affirm the decision of the district court.
I.
Kansas's Sexual Abuse Treatment Program ("SATP") and New
Hampshire's SOP share many attributes. For example, both programs
require participants to accept responsibility for their crimes as
well as divulge their sexual histories and any other sexual
offenses they may have committed. In addition, neither program
offers immunity from prosecution for any statements made in
connection with the program. Compare McKune, 122 S. Ct. at 2022-25
(describing Kansas program), with Ainsworth, 244 F.3d at 210–212
(describing New Hampshire program). The two states' programs,
however, differ in a number of respects. For example, in McKune
the plaintiffs were ordered to participate in the program, see
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McKune, 122 S. Ct. at 2023, whereas in New Hampshire, the program
is voluntary,1 see Ainsworth, 244 F.3d at 211. More importantly,
the programs differ with respect to the consequences for
nonparticipation. In Kansas, nonparticipation results in the
automatic curtailment of several privileges (including visitation
rights, earnings, work opportunities, ability to send money to
family, canteen expenditures, and access to a personal television),
as well as an automatic transfer to less desirable housing. See
McKune, 122 S. Ct. at 2023. In New Hampshire, nonparticipation can
similarly result in a transfer to less desirable housing. More
significantly, however, nonparticipation in the SOP almost always
results in an inmate being denied parole. See Ainsworth, 244 F.3d
at 212 ("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.").
The plurality opinion in McKune concluded that Kansas's
SATP and the consequences for nonparticipation in it did not
combine to create a compulsion that impermissibly encumbers the
constitutional right not to incriminate oneself. In coming to this
1
As we noted before, the Ainsworth appellants' brief asserted
that "some of the plaintiffs apply for the SOP 'because their
sentence specifically requires completion' . . . . However, the
plaintiffs in no way develop this argument in their brief,
precluding our consideration of the implications of any such
sentencing requirements." Ainsworth, 244 F.3d at 216 n.9.
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conclusion, the plurality relied on Sandin v. Conner, 515 U.S. 472
(1995), a due process challenge to prison conditions. While
acknowledging that a due process claim differs from a Fifth
Amendment claim, the plurality looked to Sandin in evaluating the
latter. McKune, 122 S. Ct. at 2026 (plurality opinion). The Court
in Sandin held that adverse prison conditions cannot give rise to
a due process violation unless they constitute "atypical and
significant hardship[s] on [inmates] in relation to the ordinary
incidents of prison life." Sandin, 515 U.S. at 484. Relying on
this "useful instruction," the plurality concluded that the
penalties imposed on the McKune plaintiff were significantly less
than the potential penalties inmates faced in selected other cases
in which the Supreme Court had determined that there was no Fifth
Amendment violation. McKune, 122 S. Ct. at 2027–29 (plurality
opinion). Therefore, according to the plurality, the SATP was not
constitutionally impermissible.
In concurring in the judgment on much narrower grounds,
Justice O'Connor rejected the idea that Sandin's due process
analysis should be imported into a Fifth Amendment compulsion
analysis. Indeed, she indicated that she "agree[d] with Justice
STEVENS [in dissent] that the Fifth Amendment compulsion standard
is broader than [the Sandin test]." McKune, 122 S. Ct. at 2032
(O'Connor, J., concurring in the judgment). On the facts of
McKune, however, Justice O'Connor did not believe that "the
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penalties assessed against respondent in response to his failure to
incriminate himself [were] compulsive on any reasonable test." Id.
at 2035 (emphasis added). Curtailment of certain privileges and a
transfer to less hospitable housing were simply not consequences
"serious enough to compel [plaintiff] to be a witness against
himself," id. at 2033–34, regardless of the theory used to evaluate
the claim. Thus, without subscribing to the plurality's reasoning,
Justice O'Connor concurred in the plurality's judgment. Id. at
2035.
II.
When no single rationale explains the result of a divided
Supreme Court, we interpret the holding to be the "position taken
by those Members who concurred in the judgments on the narrowest
grounds." Marks v. United States, 430 U.S. 188, 193 (1977)
(quoting Gregg v. Georgia, 428 U.S. 153, 169 (1976)). Hence the
Tenth Circuit held on remand in McKune that the inmates' claims
"[did] not rise to the level of compulsion contemplated by Justice
O'Connor's concurring opinion" and dismissed them on that ground.
Lile v. McKune, 299 F.3d 1229, 1230 (10th Cir. 2002). See also
Searcy v. Simmons, 299 F.3d 1220, 1225 (10th Cir. 2002) ("[W]e view
[Justice O'Connor's] concurrence as the holding of the Court in
McKune."); Reed v. McKune, 298 F.3d 946, 952 (10th Cir. 2002)
("Justice O'Connor's narrower position in her concurrence
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represents the holding of the plurality decision."). We agree with
this approach. Justice O'Connor's concurrence is "arguably more
narrow than the plurality's and therefore constitutes the holding
of the Court." Lurie v. Wittner, 228 F.3d 113, 130 (2d Cir. 2000);
see also Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 580
(1st Cir. 1999) ("[I]nferior courts should give effect to the
narrowest ground upon which a majority of the Justices supporting
the judgment would agree.").
The difficulty presented by this interpretive precept is
that Justice O'Connor does not purport to lay out any abstract
analysis or unifying theory that would prefigure her views
regarding the constitutionality of New Hampshire's program.2 Taken
together, the O'Connor and plurality opinions do not clearly
foreshadow how the court would decide our case. For example, the
plurality opinion notes in passing that nonparticipation in the
Kansas program "[does] not extend [the] term of incarceration," nor
does it "affect [] eligibility for good-time credits or parole."
McKune, 122 S. Ct. at 2027 (plurality opinion). Later in the
opinion, however, the plurality notes that in Minnesota v. Murphy,
465 U.S. 420 (1984), the Court found no compulsion to speak when
"the defendant feared the possibility of additional jail time as a
2
Since both the plurality and Justice O'Connor reject the
argument that a transfer to less desirable housing is
constitutionally impermissible, appellants have withdrawn their
"punitive housing transfer" claim. See Appellants' Suppl. Br.
at 5.
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result of his decision to remain silent." McKune, 122 S. Ct. at
2029 (plurality opinion). Thus, while the plurality apparently
felt it noteworthy that a loss of parole was not at stake in
Kansas, whereas it is in this case, it is far from clear that the
plurality would regard such a consequence as constitutionally
impermissible. Under these circumstances, in considering our
earlier opinion in light of McKune as the remand requires, we have
no clear guideposts. Instead, we must resort to our own sound
judgment, so long as it does not conflict with existing precedent.
III.
Our prior decision in this case examined a long line of
Supreme Court precedents in which compulsion under the Fifth
Amendment was at issue. We recognized that historically the
Supreme Court had described compulsion in relatively broad terms.
However, we also noted that in more recent decisions the Court had
held that the analysis is more circumscribed in the prison context.
Citing the "watershed case" of Turner v. Safley, 482 U.S. 78
(1987), we reaffirmed our prior observation that when "burdens are
laid upon the exercise of constitutional rights by prisons, the
Supreme Court's current approach is to give very substantial
latitude to the state's judgment." Ainsworth, 244 F.3d at 213
(quoting Beauchamp v. Murphy, 37 F.3d 700, 704 (1st Cir. 1994),
cert. denied, 514 U.S. 1019 (1995)). Only "unreasonable" burdens
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are proscribed. In determining whether a burden is unreasonable,
we will look to:
whether the state's policy serves a valid
governmental 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.
Id. at 214 (quoting Beauchamp, 37 F.3d at 705 (citing Turner, 482
U.S. at 89–91) (internal quotations omitted)).
Without recapitulating our prior decision in its
entirety, suffice it to say that we determined that the burden
placed on appellants is not an unreasonable one. We began by
citing criminological studies and social science research, noting
that the admission of crimes is "widely believed to be a necessary
prerequisite for successful treatment" of sex offenders. We
determined that "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." Id. at 215.
Next, we examined the extent of the burden. We began by
noting that "inmates do not have a 'liberty right' to parole" under
either federal or New Hampshire law. Id. at 216. We recognized
that there was some burden placed on appellants' exercise of their
Fifth Amendment rights, but that the extent of that burden was
mitigated by three factors. First, appellants were not suffering
a new or additional penalty by being denied parole. Since parole
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involves relief from a penalty that has already been imposed — the
full period of incarceration to which appellants were sentenced —
parole can be considered a "benefit that the state may condition on
completion of the program." Id. at 216. Given the "crucial
distinction between being deprived of a liberty one has . . . and
being denied a conditional liberty that one desires," Greenholtz v.
Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 9 (1979), we
concluded that this aspect of the burden mitigated its extent.
Second, we noted that the extent of the burden was also mitigated
by the voluntary nature of the program (notwithstanding the
consequences of nonparticipation). Third, we observed that the
denial of parole was not entirely automatic. While the vast
majority of parolees had completed the SOP prior to release, a few
inmates are paroled each year despite having not completed the SOP.
Finally, we considered "whether reasonable alternatives
exist for the government to achieve its ends without significant
cost or impairment to the governmental interest at stake."
Ainsworth, 244 F.3d at 220. We recognized that the state could
offer a grant of limited-use immunity to appellants before
requiring them to disclose past misconduct. Any impermissible
Fifth Amendment compulsion would thus be obviated. However, we
concluded that "the decision about whether to grant immunity to sex
offenders is a policy choice that lies in the state's hands." Id.
at 221.
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Our ultimate conclusion under the Turner framework, in
light of the three factors outlined above, was as follows:
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.
Ainsworth, 244 F.3d at 221. Having duly considered our decision in
light of McKune, we now adhere to our earlier judgment. The
judgment of the district court is affirmed.
SO ORDERED.
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