Sex Offender Requirement to Admit Guilt as Condition of Parole Does Not Violate First Amendment, Due Process or Ex Post Facto

In Newman v. Beard, No. 08-2652 (August 16, 2010), the Third Circuit affirmed the district court’s dismissal of petitioner’s amended complaint which asserted that the Department of Corrections’ (DOC) requirement that sex offenders admit guilt as a prerequisite to entry into a treatment program, the completion of which is required to be eligible for parole under 42 Pa. Cons. Stat. Ann. § 9718.1, violates petitioner’s: 1) First Amendment right; 2) right to due process; and 3) the Ex Post Facto Clause of the Constitution.

Newman was convicted of two rapes and related sexual offenses. While serving his sentence, Pennsylvania enacted new legislation requiring sex offenders to complete a treatment program to be eligible for parole. A DOC regulation required all inmates to admit guilt in order to attend the program. Newman, who exhausted all his direct and post-conviction appeals, refused to admit guilt and thus was denied entrance into a treatment program and further denied parole.

The Court held that a prison regulation that impinges on an inmate’s constitutional rights is valid if it is reasonably related to a penological interest. The Court found that requiring admission of guilt, as a step toward rehabilitating a sex offender, is such a legitimate interest.

The due process claim failed substantively because refusal to admit guilt as a prerequisite for entry into a sex offender treatment program was not arbitrary and does not shock the conscience. Furthermore, the Constitution does not establish a liberty interest in parole that invokes due process protection. While Pennsylvania law guarantees a prisoner the right to apply for parole and have the application fairly considered, the Court found that the Parole Board gave the application all the consideration it was due, and that refusal to admit guilt can be considered in the decision to deny parole.

Lastly, the Court, assuming that § 9718.1 was given retrospective effect, held that the petitioner failed to demonstrate that the new law created a significant risk of increasing his punishment.