On Appeal from the United States District Court for the District of Western Pennsylvania (D.C. Civil No. 3-06-cv-00214) District Judge: Hon. Kim R. Gibson.
The opinion of the court was delivered by: Sloviter, Circuit Judge.
Before: SLOVITER and HARDIMAN, Circuit Judges, and POLLAK*fn1, District Judge.
Appellant Clifford Newman, a convicted sex offender, argues that the Parole Board violated his First Amendment right, his right to due process, and the Ex Post Facto Clause of the Constitution by using his refusal to admit his guilt to adversely affect his eligibility for parole.
I. Background In 1987, Newman was found guilty of committing two rapes and related sexual offenses after a jury trial in a Pennsylvania state court. He was sentenced in 1988 to twenty to forty years imprisonment. Newman ultimately exhausted his direct and post-conviction appeals after more than a decade of litigation. He also sought federal habeas relief, which was denied notwithstanding his persistent and consistent claim that he is not guilty.
In 2000, while Newman was serving his sentence, the Pennsylvania General Assembly enacted 42 Pa. Cons. Stat. Ann. § 9718.1 (2001). That statute provides that certain sex offenders "shall attend and participate in a Department of Corrections program of counseling or therapy . . . ." Id. § 9718.1(a). A sex offender "shall not be eligible for parole unless the offender has . . . participated in the program . . . ." Id. § 9718.1(b)(1)(ii). The statute gives the Department of Corrections "the sole discretion with respect to counseling or therapy program contents and administration . . . ." Id. § 9718.1(c). The Department of Corrections administers a sexual offender program ("SOP") in accordance with § 9718.1. Prior to the enactment of § 9718.1, there was no Pennsylvania statute or regulation that required convicted sex offenders to attend a counseling or therapy program as a condition of parole eligibility.
According to Newman's complaint, the Department "requires all inmates to admit guilt" in order "to attend the [SOP]." App. at 25. Although an earlier version of the SOP included a "non-admitters program," the Department no longer offers the program at the State Correctional Institution at Houtzdale, where Newman is presently incarcerated. Newman alleges that he is unable to attend the SOP because he refuses to admit his guilt.
The parole process in Pennsylvania is administered by the Board of Probation and Parole, generally referred to as the "Parole Board." See generally 61 Pa. Cons. Stat. Ann. §§ 6111- 6139. Newman became eligible for parole in 2007 and met with a parole hearing examiner for an interview. According to Newman's complaint, the hearing examiner "noted that [Newman] . . . ha[d] not attended the [SOP]" and stated that his failure to attend "put [him] in a 'Catch 22' since the Parole Board required the completion of the [SOP] before parole would be granted." App. at 29. On April 18, 2007, the Parole Board denied Newman's parole application. The Parole Board issued a written decision stating that "[y]our best interests do not justify or require you being paroled/reparoled; and, the interests of the Commonwealth will be injured if you were paroled/reparoled. Therefore, you are refused parole/reparole at this time." App. at 39.
The Parole Board gave the following reasons for denying Newman parole:
Your minimization/denial of the nature and circumstances of the offense(s) committed.
Your refusal to accept responsibility for the offense(s) committed.
Your lack of remorse for the offense(s) committed.
The negative recommendation made by the Department of Corrections.
Your unacceptable compliance with prescribed institutional programs.
Your need to participate in and complete additional institutional programs.
Your interview with the hearing examiner. App. at 39.
The Parole Board's written decision also stated that at Newman's next interview, the Board will review your file and consider . . . whether you have successfully completed a treatment program for sex offender[s,] whether you have received a favorable recommendation for parole from the Department of Corrections[,] whether you have maintained a clear conduct record and completed the Department of ...