Monday, June 13, 2011

New parole rules require due process for imposing sex offender conditions

The Board of Pardons and Paroles will no longer apply sex-offender restrictions - so-called "Condition X" - on parolees who've not been convicted of a sex offense without holding an evidentiary hearing, reports Jordan Smith at the Austin Chronicle, whose story on the subject opens:
On Wednesday, June 8, the rules committee of the Board of Pardons and Paroles met to consider immediate implementation of new "emergency rules" for determining when parolees can be saddled with release conditions normally reserved for sex offenders.

At issue is the agency's imposing very restrictive sex offender parole conditions on inmates not actually convicted of sex offenses. In several high-profile cases, including that of Raul Meza, who was convicted of the 1982 murder in Southeast Austin of eight-year-old Kendra Page, federal courts have ruled that the BPP procedures that impose those restrictions without a hearing violate a parolee's due process rights.

The board only recently adopted rules to address the due process issues, but did not act to make those rules universal for all Texas parolees who have not committed a sex offense, until this week – prompted, lawyers say, by a unanimous decision from the Court of Criminal Appeals last month.
An email sent out last week from parole attorney David O'Neil to the Texas Criminal Defense Lawyers Association listserv gave more detail on the changes, highlighting the less-than-stringent standard the parole board will use in such cases:
On Wednesday morning, the Parole Board rules committee met to consider emergency rules to implement procedures for hearings, the purpose of which will be to determine if sex offender conditions of parole may be imposed upon parolees who have not been convicted of a sex offense.  The hearings are a result of a series of court decisions that have held that due process must be afforded to a parolee who has not been convicted of a sex offense before the Parole Board may impose sex offender conditions on that parolee.  In Coleman v. Dretke, 395 F.3 216 (5th Cir. 2004), the Fifth Circuit held that due process must be afforded a parolee in such circumstances, but declined to articulate the specific process that must be followed.
In Meza v. Livingston, 623 F. Supp. 2nd 782 (West Div of Tx, Austin Division 3-24-09), affirmed 608 F3d 392 (5th Cir. 2010), the Fifth Circuit laid out the specific process such a parolee must be afforded, but the Parole Board took the position that the Meza decision only applied to those offenders under old mandatory supervision law, thus denying due process to thousands of non sex offender parolees who have been placed on sex offender conditions. Finally, last month the Court of Criminal Appeals decided Ex parte Evans, #76,445 (CCA 5-4-11), in which the court emphatically stated that the due process set out in Meza applies to Texas parolees and not just those on mandatory supervision.  It was the Ex Parte Evans decision that required the Parole Board to resort to their emergency rule making authority. As you may recall, in January, TCDLA President Bill Harris transmitted TCDLA’s comments on the Coleman procedures the Parole Board proposed in response to Meza.  One of those comments specifically objected to the Board’s  failure to apply the proceedings to all non sex offender parolees subjected to sex offender conditions of parole.
Immediately after the Rules Committee recommended implementation of the new rules, the Parole Board approved those rules. In the Board’s workshop that followed their meeting, the Board members and Commissioners discussed certain other changes to policies regarding Coleman conditions. The Board announced that they no longer plan to consider sex offender conditions for non sex offender parolees unless there is a sexual component to their current  offense. (For example, considering parole on a conviction for  injury to a child where there were allegations of illegal sexual conduct related to that offense.) Until now, the Board had been basing their imposition of sex offender conditions on mere allegations of illegal sexual activity, even it occurred years (or decades) before the conviction for which the Board was considering  parole. During the workshop it was also made clear that the Board did not plan to impose a condition requiring sex offender registration unless such registration was already required under Chapter 62, CCP.
There are thousands of non-sex offender parolees who are currently on sex-offender conditions of parole without the benefit of the due process required by Meza. The Board is scheduled to begin hearings on those cases next week. The hearing officer will be a Parole Board Member or Commissioner. It will take some time to provide Coleman hearings for the thousands of parolees who were entitled to them. Parolees will be offered the option of waving their Coleman hearing.  If a parolee chooses to waive their hearing, they can count on the imposition of sex offender conditions. 
The Board also recognized that there are many non sex offender  TDCJ inmates who are currently being considered for parole.  They will be considering lesser due process requirements than those required by Meza for inmates, as opposed to parolees already out of TDCJ on parole when sex offender conditions are imposed.   If the Board takes that position, there will likely be future litigation on that issue.  Future litigation can also be expected regarding the standard of proof contained in the Board’s new rules.  TCDLA’s January comments on the Coleman procedures included objection to the preponderance standard that has been adopted in Coleman hearings, noting that the appropriate standard should be “clear and convincing”.
This is a big deal: Nearly 7,000 Texas parolees currently must comply with sex offender conditions even though they weren't convicted of a sex offense, often, as O'Neil says, based on "mere allegations of illegal sexual activity, even it occurred years (or decades) before the conviction for which the Board was considering parole."

This development is good news not just for the parolees affected but for local police departments who, going forward, won't have to perform as much additional monitoring required of those on the sex offender registry (see the correction below). But it raises the question of whether the Board of Pardons and Paroles is equipped to hold these extra hearings, as well as other new hearings the courts may soon require. The BPP received a slight bump in its budget under HB 1- to $18.2 million per year, up from $18.1 million estimated for FY 2010. But that doesn't include costs for thousands of extra hearings, and I wouldn't be surprised to see the Department of Criminal Justice having to rob other programs to cover the extra expense.

CORRECTION: A reader who understands these matters much better than I emailed to say:
Actually, they have not been required to register as sex offenders since 2004, when the Federal writ, ex parte Miller Branch, was decided. There was great wringing of hands and gnashing of teeth, but it all worked out. For information purposes, the Registration requirement is Parole Condition “M,” which can be found on the Board website. The Coleman case, is concerned with sex offender conditions of supervision, not registration. See, Condition “X” on the website. If a Coleman case (no sex offender condition) is being forced to register, it is a mistake. Granted, the Parole Division of TDCJ, in its vigor, has often tried to sneak condition “M” in on a Board panel.  So, the issue is not registration, and not a burden on local law enforcement, save and except for those “errors” committed by zealots in the Parole Division.
That being said, the difference between M and X is negligible, save and except for the public registration requirement. Also, the Board can choose components of X to impose, and omit some others, dependent on the case. Dave’s assertion of 7,000 is correct, but for Condition X, not registration. That is a totally different, and for all practical intents and purposes, a settled matter. The Parole Division of TDCJ, and the Board have been too zealous in their application of Condition X, and have ignored good legal advice from years ago about how this would eventually turn out.
While there are emergency rules for the new hearings, I predict that most cases will have Condition X withdrawn by transmittal to a Board panel, and not by a mass of hearings. Just my opinion. The reasoning of TDCJ not to have hearings was cost and logistics. The Board’s funds and manpower are miniscule by comparison.
See related Grits posts:


sunray's wench said...

This is indeed a big deal. The only question I have at the moment is this: if the BPP currently spend around 45 seconds per parole application (on average), how long is it going to take the BPP to get through the number of cases it now has to review, and if they are working on those, what happens to the inmates who are coming up for parole in the future - will there be a backlog of parole files sitting around because the BPP have to clear up its own mess elsewhere?

gravyrug said...

This could also affect prosecutors' willingness to offer plea bargain deals to folks facing sex offense charges, and I'm fine with that, too.

Anonymous said...

What I think should happen is this Condition X should not be applied to anyone who it would not "apply" to. Meaning, if a kid is found having consensual relationships (remember, kissing is a sex offense) - with his girlfriend who is 5 years younger than him (not totally insane there is it?) - why should he have to follow the rules of Condition X? Should it not apply to JUST those who have kidnapped children from school, molested them, etc.? Why is it that these other so-called "sex offenders" have to go through such hoops (and rarely make it without violating the rules), when they have zero interest in CHILDREN in day care centers, schools, arcade facilities, etc.? Condition X is a death sentence, almost.

rodsmith said...

seems to me these idiots STILL don't get it. If they stil have 1,000's of individuals now on parole/probation stuck with these special conditions who are NOT on parole/probation becasue of a current sex crime.

These idiots are STILL in violation of the constution. for every day even ONE of them is still required to follow them. This stupidity of doing a review for each that migh take YEARS to do even if they finish them. is illegal and stupidity. Not to mention saying if the individual waives their right to a hearing. Sorry you can't legally waive your right so the govt can BREAK THE LAW.

Anonymous said...

Man dies while raping elderly South Texas woman

Associated Press
Posted on June 13, 2011 at 4:59

Sometimes the problem solves itself.

rodsmith said...

yep that's what you call fate with a vengeance!

A Texas PO said...

Rod, these rules only apply to those on parole. There are many times when sex offenders are placed on probation for an offense (such as tampering with evidence) related to a sex offense and they are still required to abide by sex offender conditions. Judges are allowed to order any conditions they deem fit for probationers. Technically, if a judge wanted to, s/he could require a probationer to hop on one foot once a week.

wisdom of solomon said...

Question: Just when did "Due Process" become not a right for every human being in America? Due Process should apply to even convicted SOs. Does anybody remember the 14th Amendment's "Equal Protection of the Law" clause in the U.S. Constitution? What goes for one goes for all. If non SOs are to be afforded Due Process hearing(s), then regular SOs are to be afforded Due Process hearing(s). Thats only fair. The BPP can still impose the "Scarlet Letter" called Condition X, but at least give a guy an opportunity to be heard. Another thing that kills me is this: here is a guy that has done 15-20+ years in TDC for his crime then, he is paroled out into a system (free world) that is hostile to his coming out here. How in the hell can anyway still be upset with a guy after he has done 15-20+ years in prison? This guy is at a big disadvantage--he needs help; not state sponsored disenfranchisement.

rodsmith said...

well texas PO shame on you!

this shows me you have made the same mistake the parole office has!

the court keeps telling them and YOU the same thing

IF they are NOT on parole/probation becasue of a CONVICTION FOR A SEX CRIME! You CANNOT require sex offender probation conditions!

"Rod, these rules only apply to those on parole. There are many times when sex offenders are placed on probation for an offense (such as tampering with evidence) related to a sex offense and they are still required to abide by sex offender conditions. Judges are allowed to order any conditions they deem fit for probationers. Technically, if a judge wanted to, s/he could require a probationer to hop on one foot once a week."

as for your hypothetical about an idiot order from a judge. Well first the U.S. Supreme court has ruled parole/probation conditions have to have SOME reasonable connection to the crime for while the individual is on parole.

second i think any judge retarded enough to give an order like that should have what little brains left in their head BLOWN out the back of it!

Anonymous said...

Serious question. A man in austin was charged with on line solitation of a minor under 14. Luckily was caught by police on the other end of the email. He was charged, even he sent photos of himself and that was in February 2010. The case is repeatedly postponed in Travis county. Why? He is free to walk and do this again or worse. How many time can a case like this be poseponed. Will we have another Kendra Page case because the state is taking care of things????

Gritsforbreakfast said...

3:56, I can't speak to the delays, but I do know it's a stretch to assume defendants in every case like that will later rape and murder someone, any more than it's a big risk Anthony Weiner will do so. You said the police were on the other end of the solicitations, and in many instances they're actively out on the web seeking to engage men in such online communications. That doesn't mean they'll go on to rape or murder someone. Meza had a significant criminal history before murdering Kendra Page. Without knowing more about the defendant's background, e.g., whether he committed violent crimes in the past, it's not reasonable to equate every defendant accused of soliciting a minor with Raul Meza.

A Texas PO said...

Rod, you're still combining parole and probation in your argument. Courts can impose ANY probation conditions they deem necessary for an offender. Under your argument, someone placed on probation for theft can't be ordered to complete drug treatment even though they have a drug problem. Obviously this would be a miscarriage of justice to deny someone the services they need (whether they want it or not) just because their charge is not drug-related. However, requiring parolees to register as sex offenders even though they were not convicted of a sex offense is a violation according to the court decision here.

rodsmith said...

oh i agree about the drug treatment. but what we are talking about here is appling sex offender probation/parole conditions on people who are NOT on parole/probation for a sex crime conviction.

anyone who thinks after all this time that sex offender condtions are TREATMENT is a bigger idiot then those politicians in houston and washingtion D.C.

rodsmith said...

well 3:56 this

"Serious question. A man in austin was charged with on line solitation of a minor under 14. Luckily was caught by police on the other end of the email."

Should legally be INTRAPMENT since the odds are the individual he so-called "solitiated" was a 50-60 year old flat-foot named jose!

no 14 year old involved!

just like the cops can't hand a dopehead a dime bag of suggar and convict them for posession of narcotics!


Anonymous said...

I agree that all cannot be compared to Meza. Thats a stretch but it could happen. My question still is, how many times can a case be delayed. The police had enough evidence including pics he sent on line to the supposedly 13 yr old. Can we be certain this is not happening as he is walking around free to call, etc....We have seen many cases where someone was probated or delayed, then something bad happens....get the trial overwith and if he's quilty than so be it...if not...ok...but why take a chance with our children and grandchildren. Almost two years is toooo long.
I love your column....
A concerned Grandma

texas Maverick said...

IMO the real point is missed in most of the comments. a judge has the right and responsibility to impose special conditions on anyone before his court and a hearing has been afforded the defendant. The BPP does not have that right and they were doing that WITHOUT a hearing.

The BPP does not have the right to play judge AND jury which is what the court decision says. Hearings must be held when a condition restricts your freedom to live your daily life and you've never been allowed to present your side of the story. The BPP tends to play God and when they don't our Gov can always step in and take up where they leave off.

Anonymous said...

Can someone comment on this issue, i know a man just paroling out for agg robbery. spent 31 yrs for this crime. they made him take all these programs including s/o programs. He did have a sex crime when he was 18 and victim was 17. that was 35 yrs ago and did 4 yrs on that one. Now can he fight this s/o regisration parole says he needs to do when on parole? any advice will help thanks