New Hampshire Case Law
KNOWLES v. WARDEN, N.H. STATE PRISON, 140> <N.H>. <387> (1995)
666 A.2d 972
WILLIAM KNOWLES v. WARDEN, NEW HAMPSHIRE STATE PRISON
No. 94-661
Supreme Court of New Hampshire
Merrimack
Decided October 31, 1995

1. Criminal Law - Judgment and Sentence - Probation and Parole
     Although inmate claimed that predicating consideration for parole on
   his participation in sexual offender program which required him to admit
   guilt of the crimes of which he was convicted, violated his State and
   federal constitutional rights against compelled self-incrimination,
   inmate had not been compelled to incriminate himself since he could
   choose not to participate in the program and inmate had no constitutional
   liberty interest in parole. U.S. CONST. Amend. V; N.H. Const. pt. I,
   art. 15.

2. Criminal Law - Judgment and Sentence - Probation and Parole
     Inmate, who was denied parole because he failed to participate in
   prison's sexual offender program, had no right to parole, unless he could
   present some provision grounded in State law mandating his release upon
   proof of certain ascertainable facts.

3. Criminal Law - Judgment and Sentence - Probation and Parole
     Pursuant to RSA 651-A:4, III, the parole board has enacted
   comprehensive rules governing the parole process. RSA 651-A:4, III.

4. Criminal Law - Judgment and Sentence - Probation and Parole
     New Hampshire Adult Parole Board's broad discretion to deny parole is
   not limited by RSA chapter 651-A, or by its administrative rules.
   RSA ch. 651-A; N.H. ADMIN. RULES, Par 201.01.

5. Criminal Law - Self Incrimination - Particular Cases
     Because inmate could choose not to participate in prison's sexual
   offender program, which requires inmates to admit responsibility for
   crimes of which they have been convicted, compulsion element of a
   violation of his privilege against compelled self-incrimination was
   missing. N.H. CONST. pt. I, art. 15.

6. Criminal Law - Judgment and Sentence - Probation and Parole
     Inmate's refusal to admit guilt in order to participate in prison's
   sexual offender program would not cause him to serve additional prison
   time; he simply might be denied parole and be required to serve the
   sentence he received originally.

  Tower, Bean & Crocker, P.A., of Jaffrey (Jefferson K. Allen on the
brief and orally), and Law Office of Joshua L. Gordon, of Concord
(Joshua L. Gordon on the brief), for the plaintiff.

  Jeffrey R. Howard, attorney general (Christopher P. Reid, and
John C. Kissinger, Jr. assistant attorneys general, on the brief, and
Mr. Reid orally), for the defendant.
Page 388

  BROCK, C.J.

  The plaintiff, William Knowles, appeals the Superior
Court (Manias, J.) denial of his petition for writ of habeas corpus.
The plaintiff argues that his State and federal constitutional rights
against compelled self-incrimination are violated by a New Hampshire
Adult Parole Board (parole board) requirement that he
complete a sexual offender program before becoming eligible for
parole. We affirm.

  In 1987, after a jury trial in Superior Court (Flynn, J.), the
plaintiff was convicted of two counts of aggravated felonious sexual
assault. He was sentenced to two consecutive terms in prison, the
first being from seven to fifteen years, and the second from three to
fifteen years. We upheld his convictions on direct appeal in State v.
Knowles, 131 N.H. 274, 553 A.2d 274 (1988).

  In 1993, the plaintiff sought but was denied parole from the first
to the second sentence. The parole board denied his request for
parole because the plaintiff had not completed the prison's sexual
offender program (SOP). The parole board informed the plaintiff
that he should not seek parole again until he had completed the
program. The plaintiff's 1994 request for an additional parole board
hearing was denied because of his failure to complete the SOP. The
plaintiff subsequently sought admission into the SOP but was
denied because he refused to admit responsibility for the crimes of
which he had been convicted.

  An inmate may request admission to the SOP, or he may be
referred by the court system, mental health counselors, or case
managers. The program's objectives include development of open
and honest communication, development of awareness of contributing
factors to the offense committed, self-disclosure of the inmate's
entire sexual offending history, development of victim empathy,
development of higher self-esteem and healthier relationships,
reduction of deviant arousal patterns, and development of a realistic
relapse prevention plan. In order to be admitted into the program,
inmates must satisfy strict admission criteria, which include a
history of deviant sexual behavior, including child molesting or
incest, a willingness to commit to one year of treatment, the
recognition of a "serious problem," and the ability to adjust to a
"therapeutic community environment." The criterion that raises the
plaintiff's current objection is that an applicant to the program
must "[a]dmit[] offending . . . consistent with victim reports."

  [1] In his petition for writ of habeas corpus, the plaintiff claimed
that predicating consideration for parole on his participation in a
program which requires him to admit guilt of the crimes of which he
was convicted violates his State and federal constitutional rights
Page 389
against compelled self-incrimination. The superior court denied the
petition, concluding that the plaintiff has not been "compelled" to
incriminate himself when he may choose not to participate in the
SOP, and that the plaintiff has no constitutional liberty interest in
parole. We agree.

  [2] Before we will consider a petition for a writ of habeas corpus,
the plaintiff must assert that his present imprisonment is unlawful,
alleging "a present deprivation of a protected liberty interest."
Woodman v. Perrin, 124 N.H. 545, 548, 474 A.2d 999, 1001 (1984).
Our analysis of liberty interests begins with part I, article 15 of the
New Hampshire Constitution and with the fourteenth amendment to
the United States Constitution. See Baker v. Cunningham, 128 N.H. 374,
380, 513 A.2d 956, 960 (1986). We analyze his claim first under
the State Constitution. See State v. Ball, 124 N.H. 226, 231,
471 A.2d 347, 350 (1983). Because part I, article 15 is at least as
protective of individual liberties as the fourteenth amendment, we need
not conduct a separate due process analysis under the Federal Constitution.
See In re Tracy M., 137 N.H. 119, 122,
624 A.2d 963, 965 (1993); Greenholtz v. Nebraska Penal
Inmates, 442 U.S. 1, 7 (1979).

      An individual has a liberty interest, in the broadest sense,
    in the application of any rule affirmatively recognizing a
    claim of liberty or in limiting the exercise of a governmental
    power over the person. Not every such liberty interest
    lends itself to judicial enforcement or vindication, however,
    and courts have derived three categories of such interests,
    the denial or infringement of which may be claimed by a
    criminal defendant as the basis for relief under a court's
    jurisdiction to issue writs of habeas corpus. Interests in the
    first two categories are either constitutional in origin or
    constitutionally protected; those in the third category are
    directly enforceable, at least in the courts of New Hampshire,
    as legal rights.

Baker, 128 N.H. at 378, 513 A.2d at 958. The plaintiff has no right
to parole, unless he presents "some provision grounded in State law
mandating [his] release upon proof of certain ascertainable facts."
Id. at 380, 513 A.2d at 960; see Jago v. Van Curen, 454 U.S. 14, 20-21
(1981) (parole statutes found not to create a protected liberty
interest for due process purposes).

  The plaintiff has alleged interference with a "third level" liberty
interest, i.e., a legal right which has "a bearing on official decisions
to grant or to withhold liberty, and which [is] directly enforceable
under State law." Baker, 128 N.H. at 379, 513 A.2d at 959. He
Page 390
accordingly "has a cognizable interest in the legality, as well as in
the constitutionally required procedural sufficiency, of the State's
action affecting his liberty." Id. To obtain relief under this petition,
the plaintiff must show that the parole board committed certain
legal errors that affected his liberty. Bussiere v. Cunningham,
Warden, 132 N.H. 747, 754, 671 A.2d 908, 912 (1990). The legal
errors shown must have been plainly arbitrary, violative of the State
or Federal Constitutions, or "void for lack of the requisite statutory
process." Martel v. Hancock, 115 N.H. 237, 239, 339 A.2d 9, 11
(1975); see Bussiere, 132 N.H. at 755, 571 A.2d at 913.

  The New Hampshire General Court recites the purpose of our
parole system in this way:

    It is the intent of the legislature that the state parole
    system provide 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. It is also the intent of the legislature that the
    policies, procedures and actions of the . . . parole board
    and the department of corrections relative to the administration
    of this system emphasize the need to protect the
    public from criminal acts by parolees.

RSA 651-A:1 (Supp. 1994). Toward these ends, the legislature has
granted broad authority to the parole board to enact rules regarding
the conduct of parole hearings, the criteria used to evaluate
prisoners who seek parole, conditions for parolee conduct, and the
procedures for parole revocation. RSA 651-A:4 (1986). Most importantly,
in the provision describing the "terms" of a prisoner's
release on parole, the legislature states the minimum requirement
 - completion of the minimum term of the inmate's sentence - and
then requires "that there shall appear to the . . . parole
board . . . to be a reasonable probability that [the inmate] will
remain at liberty without violating the law and will conduct himself
as a good citizen." RSA 651-A:6, I (1986).

  [3, 4] Pursuant to RSA 651-A:4, III, the parole board has
enacted comprehensive rules governing the parole process. Reflecting
the intent of the legislature as enunciated in RSA 651-A:1, the
board describes the dual goals of parole thus: "Parole is a privilege,
not a right. Parole shall be granted an inmate only when it is in the
best interest of both society and the individual inmate." N.H.
ADMIN. RULES, Par 201.01. We have held that the parole board's
broad discretion to deny parole is not limited by RSA chapter 651-A,
or by its administrative rules. See Bussiere, 132 N.H. at 752, 571
Page 391
A.2d at 911; Baker, 128 N.H. at 381, 513 A.2d at 960. Neither set of
provisions "mandat[es] a prisoner's release upon proof of certain
ascertainable facts." Baker, 128 N.H. at 380, 513 A.2d at 960.

  The plaintiff does not argue that the parole board violated either
its own rules or the statute. Instead, he contends that the board's
requirement that he complete the SOP before becoming eligible for
parole violated his right against compelled self-incrimination. Part
I, article 15 of the New Hampshire Constitution protects the
plaintiff from being "compelled to accuse or furnish evidence
against himself." The fifth amendment to the United States Constitution
protects him from being "compelled in any criminal case to be
a witness against himself." These privileges are comparable in
scope. State v. Cormier, 127 N.H. 253, 255, 499 A.2d 986, 988 (1985).
We first address the plaintiff's claim under the State Constitution,
see State v. Ball, 124 N.H. at 231, 471 A.2d at 350, citing federal law
only as it aids our analysis. State v. Maya, 126 N.H. 590, 594,
493 A.2d 1139, 1143 (1985). Because the Federal Constitution is not more
protective of the plaintiff's right against compelled self-incrimination,
we need not address his federal claim in this case. State v.
Drewry, 139 N.H. 678, 683, 661 A.2d 1181, 1184 (1995); see Allen v.
Illinois, 478 U.S. 364, 374 (1986); Reina v. United States, 364 U.S. 507,
513 (1960).

  The plaintiff's privilege against compelled self-incrimination

    not only permits [him] 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.

Minnesota v. Murphy, 465 U.S. 420, 426 (1984) (quotation omitted).
The defendant offers a case from the Montana Supreme Court for
the proposition that his "testimony" in this instance has been
"compelled." State v. Imlay, 813 P.2d 979 (Mont. 1991), cert. granted,
503 U.S. 905, cert. dismissed as improvidently granted, 113 S.Ct.
444 (1992). In Imlay, the Montana Supreme Court concluded that a
probation requirement that the defendant participate in a program
similar to the SOP, which required him to admit his guilt of the crime
underlying his conviction, violated the defendant's right against
compelled self-incrimination. Id. at 985. The court found a violation
because the defendant, even though he had already been found
guilty of the offense, still had available several post-conviction
remedies that might be jeopardized by such an acknowledgement of
responsibility: "These are important rights guaranteed to every
Page 392
defendant under our criminal justice system, but would be rendered
meaningless if the defendant could be compelled to admit guilt as a
condition to his continued freedom." Id. (emphasis added).

  Even if we were to follow Imlay, and hold that the plaintiff
maintained the privilege against self-incrimination as to the offenses
of which he was convicted, see Wyman v. DeGregory,
100 N.H. 163, 165, 121 A.2d 805, 807 (1956); Thomas v. United States,
368 F.2d 941, 945-46 (5th Cir. 1966), we still would conclude that the
plaintiff's right against compelled self-incrimination has not been
violated. This is because "[t]here is a crucial distinction between
being deprived of a liberty one has, as in parole, and being denied
a conditional liberty that one desires." Greenholtz, 442 U.S. at 9.
The Imlay court itself noted this distinction between reimprisonment
after a probation violation and a condition of being granted
parole, and quoted an earlier Montana case, State v. Donnelly,
798 P.2d 89, 96 (Mont. 1990), in which the court had found no constitutional
violation:

      The key to this rests on whether the defendant was
    compelled to testify or was merely required to make a
    "tactical" decision regarding his parole. Here, defendant's
    decision to remain silent is a tactical one, not a compelled
    one. Defense counsel argues that, in reality, defendant's
    testimony is in fact compelled since it is a prerequisite for
    parole.

      Furthermore, failure to admit to [the crime of which he
    was convicted] will not result in certain penalty to [the]
    defendant, it will only result to preserve his current
    ineligible parole status. . . . [F]ailure to satisfactorily
    complete the sex offender program . . . will not result in a
    penalty but will merely result in defendant's continued
    ineligibility for parole.

Id. at 96; see Imlay, 813 P.2d at 984-85. The Imlay court concluded
that in the probation violation context, the defendant who refuses to
admit guilt of the crime of which he was convicted clearly is
subjected to a penalty for his refusal, that is, prison time. See
Imlay, 813 P.2d at 984-85.

  [5, 6] In the instant case, the plaintiff may choose not to
participate in the SOP. Accordingly, the compulsion element of a
violation of his privilege against compelled self-incrimination is
missing: he may choose not to admit his guilt. See Murphy, 465 U.S.
at 431 (defendant instructed to give truthful answers to probation
officer's questions as a condition of probation, but maintained
Page 393
privilege). 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. See Baker, 128 N.H. at 381, 513 A.2d
at 961 (prisoner's claim that the parole board's deferral of further
consideration of his parole "lengthened [his] sentence . . . so
patently wrong that the trial court properly disregarded it").

  "A decision to deny parole thus remains qualitatively different
from a decision to revoke parole once granted," id. at 381, 513 A.2d
at 960, and the plaintiff's interest in parole has not risen above a
"hope," id. See Greenholtz, 442 U.S. at 9. The trial court was correct
in denying the plaintiff's petition.

  Affirmed.

  All concurred.