* 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.

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
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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 fiveto-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
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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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
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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
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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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
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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.