Though the parole board and the Attorney General defend the process, even victim rights advocates think the whole hog approach (giving every person with a sexual related offense "Condition X") waters down registration and makes it less useful and more harmful:
though their efforts mostly have been rebuffed by state judges, they're gaining some traction in federal courts:
• In 2004, the 5th U.S. Circuit Court of Appeals ruled that "Condition X" can't be imposed on parolees who haven't been convicted of a sex offense, without an "appropriate hearing."
• In 2006, the Texas parole board quit automatically denying sex offenders access to their own children, after a lawsuit claimed the board did not give a parolee notice or a hearing.
• Earlier this year, federal Judge Sam Sparks in Austin expressed "grave concerns over the fundamental fairness" of such parole board hearings and commented that the Texas attorney general's office, which represents state agencies, "has apparently failed to take such constitutional challenges seriously."
Assistant Attorney General David Morales said his office "takes all constitutional challenges seriously."
Condition X is imposed on almost all paroled sex offenders, from those who had consensual sex with an underage teen to violent pedophiles. In some instances, sex offender conditions are even imposed on offenders who don't have a conviction for a sex crime, but whose offense included a sexual aspect. According to the Texas Department of Criminal Justice, about 90 percent of paroled sex offenders have Condition X imposed on them.Majority vote
It doesn't take much to require the sweeping restrictions of Condition X – just a majority vote of a three-person panel from the Texas Board of Pardons and Paroles. No face-to-face hearing is held before the vote. Instead, each member individually reviews a "parole packet" with information from an institutional parole officer and prison officials, and any supporting material from the inmate's friends and family.
The system gives "someone who is getting out on parole with sex offense stuff less due process than someone who is having their driver's license suspended," said Mr. Gladden, whose business card bears a picture of the Revolutionary War-era "Don't Tread on Me" flag.
Mr. Gladden and Mr. Habern are challenging that procedure in Judge Sparks' court.
When board members consider putting a convict under Condition X, the inmate doesn't know what evidence is presented against him and has no opportunity to respond. He can't even be sure panel members have read his file, Judge Sparks noted.
A parole division employee testified in one case that board members spend an average of 10 to 30 minutes reviewing materials in each case.
"It would certainly appear that if the voting members actually reviewed the files, the ... [process] would take substantially longer than 30 minutes," the judge wrote.
Parole board member Jose Aliseda, who is a lawyer and former county judge, said the recent court cases "have caused us to examine our policy," and the board is trying "to make sure our policies meet constitutional muster." But he said he's "sufficiently comfortable" with the current process.
In a recent 5-4 decision in one case, the Texas Court of Criminal Appeals found the system acceptable.
More effective individualized assessment is the key to solving many of the criminal justice system's greatest dilemmas, and this is a good example. Usually we think of needing better assessment more on the front end - is someone a flight risk or are they eligible for bond, what programs should someone receive while in prison or on probation, etc. - but individualized assessment is equally necessary on the back end, when offenders are completing their sentences - certainly in these types of cases.
Parole board member [Jose] Aliseda acknowledges that the restrictions make life difficult, but "I see success stories all the time," he said. "It's not impossible and it's especially not impossible after an offender has established the trust."
Torie Camp, deputy director of the Texas Association Against Sexual Assault, a victim's advocacy group, said the restriction issue is difficult for everyone.
"I can easily see how being a parole board member, you would want to err on the side of caution," she said. "They want to do their very best to keep the community safe."
Balancing the offender's constitutional rights with public safety is hard, she said. But painting all sex offenders with a broad brush "does a disservice to victims of sexual assault," she said, because the restrictions become meaningless.
Like Mr. Habern, she advocates a more individualized approach instead of the restrictions routinely recommended by the parole division and imposed by the parole board.
"For our own community safety, we actually have to look at reasonable and fair treatment for sex offenders when they're coming back into our communities, so they can reintegrate," Ms. Camp said.
Parole board member Aliseda claims he hears success stories all the time from supervised sex offenders, but I'll bet if you questioned those individuals who make up those "success stories," you'd find most all of them disagree with his stance. I'm also willing to bet that those parolees families and others in their support network bore a tremendous extra burden to help that person succeed that in some cases may have been unnecessary.
Hopefully Habern and Gladden can accomplish through the federal courts something Texas officials should have mustered the gumption to do on their own many moons ago: Ensure "Condition X" applies only to sexual predators, not low-level offenders who never harmed anyone.