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Third Circuit Upholds Pennsylvania Sex Offender Treatment Parole Requirement

The Third Circuit Court of Appeals held that a sex offender treatment requirement did not violate a Pennsylvania prisoner’s constitutional rights.

In 1987, Clifford Newman was convicted of several sex offenses and sentenced to 20 years in prison. Despite losing all of his appeals he continued to maintain his innocence.

In 2000, Pennsylvania enacted a law making parole eligibility for sex offenders contingent upon completion of a sex offender program (SOP) offered by the Department of Corrections (DOC). See: 42 Pa.Cons.Stat.Ann. §§ 9718.1(a) & (b)(1)(ii). The DOC has complete discretion over the content and operation of the program.

Newman claimed that he was ineligible for SOP participation because he refused to admit his guilt. As a result, he was denied parole in 2007.

He then filed a federal lawsuit against the Pennsylvania Parole Board, challenging the SOP parole requirement. The district court granted the Board’s motion to dismiss and Newman appealed.

The Third Circuit first addressed Newman’s claim that the Board “violated his First Amendment rights by requiring him ‘to state a belief that he does not hold to be true’ – i.e., his guilt – in order to obtain parole.” The appellate court declined “the ... Board’s invitation to cabin Newman’s First Amendment claim under the Fifth Amendment ‘compelled speech’ framework,” because the “two amendments serve different purposes.”
The Fifth Amendment protects against compelled self-incrimination in a criminal proceeding, while “the First Amendment protects, among other things, ‘the right to refrain from speaking at all.’”

Applying a First Amendment analysis, the Court of Appeals noted that there is a protected “right of freedom of thought” and “individual freedom of mind.” The First Amendment encompasses “both the right to speak freely and the right to refrain from speaking at all.” As such, “a State may not inquire about a man’s views or associations solely for the purpose of withholding a right or benefit because of what he believes.”

Unfortunately for Newman, however, the Third Circuit endorsed the Supreme Court’s view in McKune v. Lile, 536 U.S. 24 (2002) [PLN, Oct. 2002, p.8], which held that “‘States ... have a vital interest in rehabilitating convicted sex offenders’ and ‘acceptance of responsibility for past offenses’ is a ‘critical first step’ in a prison’s rehabilitation program for such offenders.” Further, the appellate court noted that “acceptance of responsibility is the beginning of rehabilitation.”

The Court of Appeals rejected Newman’s argument that requiring innocent prisoners to admit guilt does not advance rehabilitation. Once convicted, the Court noted, Newman was no longer innocent despite his protests to the contrary. As such, his “First Amendment claim was ... properly dismissed.”

The Third Circuit also upheld the dismissal of Newman’s substantive due process claim “because the ... Board’s alleged conduct was not arbitrary” and did not “shock the conscience.”

Newman’s procedural due process claim fared no better. Although “Newman is entitled to have his parole application ‘fairly considered,’” the appellate court found that Pennsylvania law does not create a protected liberty interest in parole release. See, e.g., Rogers v. Pa. Bd. of Prob. & Parole, 724 A.2d 319 (Pa. 1999) and Coady v. Vaughn, 770 A.2d 287 (Pa. 2001). As such, the Court of Appeals determined that “to the extent that Newman has a state law right to have his application ‘fairly considered,’ the Parole Board gave his application all the consideration it was due.”

The appellate court distinguished Newman’s case from others that found due process violations where the Board “considered factors that were foreign to the parole statute,” and from cases where the Board “arbitrarily denied parole based on race, religion, political beliefs, or another impermissible factor.”

Finally, the Third Circuit upheld the dismissal of Newman’s ex post facto claim, finding that the Board could have made the same parole denial decision under the law in effect at the time of his commitment offenses. See: Newman v. Beard, 617 F.3d 775 (3d Cir. 2010), cert. denied.

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Related legal case

Newman v. Beard