Thursday, September 08, 2011

Federal judge bench slaps parole board over assigning sex-offender conditions without due process

The Statesman published a brief description of a case that attorney Bill Habern had notified me about, signalling a growing frustration by federal courts with the Texas Board of Pardons and Paroles over their application of Condition X to parolees not convicted of sex crimes. (For those not familiar with the parlance, Condition X assigns offenders most restrictions on sex offenders except for public registration.)

In June, an attorney who's knowledgeable on the subject predicted to Grits "that most cases will have Condition X withdrawn by transmittal to a Board panel, and not by a mass of hearings," but  that's not what's happening. Around 7,000 parolees have been assigned Condition X without having committed a sex crime, according to published estimates, but the parole board has held what are known as "Coleman hearings" to assess parole conditions for only 3 parolees so far, according to Habern, who at Grits' request described the case's signifigance in an email thusly:
Our client was placed on sex offender supervision, has no sex conviction and was given sex offender conditions without proper due process or a hearing, as were approximately 7,000 other parolees. Since May, 2011 only 3 Coleman hearings have been had, with 300 people under consideration for Coleman hearings. The board refuses to reconsider anyone on Coleman supervision unless they request relief, and the board continues those who were not subject to Coleman due process on sex supervision no matter the failure to consider them for due process. When we demanded due process for our guy the board started telling him he'd have to jump through a bunch of testing including plysmograph before they would consider giviing him Coleman due process. Our position is he is not even legally on sex offender supervision, so the board cannot enforce such conditions until due process has been afforded..  Ct. order (TRO) prevents the board from enforcing sex offender condtiions until we can have a full hearing on the issue Sept 20th.  

As we were having the hearing yesterday the client was sitting in his parole officer's office. If we lost, we anticipated he was going to be arrested for non-compliance with sex offender conditions.
I uploaded the actual court ruling (pdf) for anyone interested. The question becomes, what happens to all those without attorneys to request Coleman hearings, and will the court's dicta after the hearing on the 20th affect only this case, only the 300 who've requested hearings but haven't received them, or all 7,000 people similarly situated? If not the latter, will it take a class action suit to get it done for everybody, and if so what deep pocketed civil attorney dares to file it? (This may be a good one for public interest attorneys at ACLU, Texas Civil Rights Project, etc., to take a second look at.) The Western District judges - Sparks and Yeakel, at least - are already unhappy with the parole board over failing to follow their direction on this, having already found rampant due process violations in near-open defiance of the court. At one point Sparks called Rissie Owens "some combination ... of 'indecisive, insensitive, inattentive, incompetent, stupid, (or) weak-kneed'"; the only way he could have been harsher would have been to step off the bench to slap her face in court. So there's fertile ground, but it'd be a significant undertaking, requiring a skilled attorney or firm with significant resources to really do it right. That many clients in a federal class-action civil rights claim is a lot to manage, even if a case looks like a slam dunk.

Until then, one supposes, these cases will continue to be filed in federal court one by one. Surely it'd be better, if only for reasons of judicial economy, if Judge Yeakel were to nip this in the bud at the Sept. 20 hearing and order Condition X removed for all 7,000 eligible parolees until hearings can be held. Otherwise, it's pretty clear the BPP will needlessly stall as long as possible. The Board of Pardons and Paroles may not like the court's decision, but at this point they're either dragging their feet or thumbing their nose at the court (depending on which body part you'd like to choose for a metaphor). Either way, that's an untenable position. Federal judges are appointed for life, so Sparks, Yeakel, et. al., aren't going anywhere.

See related Grits posts:

11 comments:

rodsmith said...

seems to be the orginal judges who ordered the state to give the indiviudals due process could issue a follow up order stating that you have failed to follow our order. Therefore effect 10 days from this date the state will be fined x dollars per day for each individual.

that might wake their asses up!

A Texas PO said...

Wow. Are they begging for the FBI to come down and investigate/audit them? Geez, BPP! Get on the ball!

DEWEY said...

The BPP is "thumbing" their noses, but using the middle finger instead of their thumbs. Fine each member of the BPP for each person per day they keep on Condition X

Anonymous said...

The implications are far-reaching and terrifying. If a branch of the criminal justice system, be it a parole board or someting else, can arbitrarily assign sex offender conditions to those who have not been convicted of a sex offense and then refuse to obey the court when ordered to remove them, what will stop the local sherrifs' department from locking up everyone playing rap music on his car radio and refusing to release him even when ordered to by a court? Thus begins he slippery slope....

Anonymous said...

John Bradley, Williamson County DA is one of the greatest, most evil perversions of true justice Texas has ever seen.

Ted said...

It is astounding that BPP can impose these conditions on someone not actually convicted of one of the statutorily enumerated offenses- I have also heard reports-unconfirmed- that inamtes are being classified as 3g offenders when their convictions are not for actual 3g offenses- I tell my clients that TDCJ abd BPP are a world unto themselves- the virgins don't believe it could possibly be- the vets already know it to be so-

Anonymous said...

This bothers me and should bother all Texans. What the Board of Pardons and Parole is doing is illegal, isn't it??? Why aren't they getting in trouble for this kind of messy and illegal activity? Why isn't the Board of Pardon's and Parole getting turned over and fixed? We sue (whatever reason, doesn't matter) and we win, yet what happens is ONE guy gets off while thousands of others continue in this mess? Something doesn't smell right in Texas.

sunray's wench said...

Because, Anon 1.04, no-one except those with friends and family in TDCJ or on parole really cares enough about them. I have a friend who has been running a petition to get TDCJ to allow inmates to make calls to overseas family - Canada counts as overseas as far as TDCJ is concerned, so you can see what level of intelligence we are dealing with here - and yet in over a month, only 80 signatures.

Others say how bad it is, how the BPP should be stopped or held more accountable, and yet they still tick the box against Republican candidates in the elections. We don't need sympathy, we need actions.

Alex S. said...

TX law doesn't require people convicted of sex offenses prior to 1970 to register. So how can BPP require someone with a pre-1970 "sex" conviction (who was recently paroled for a drug case) comply with condition X without a hearing? Is this litigation only concerning inmates never convicted of a sex offense? Or can an inmate as described above with a 40 year old sex conviction be required to abide by condition X as well?

sunray's wench said...

Alex S ~ I strongly suspect that the inmate you describe would fall directly into the group that the BPP are trying to restrict with condition X. Does this parolee have the financial means to sue the BPP?

Anonymous said...

Not only these cases, but-cases where so called "victims" write letters to the BPP, Th BPP uses the accusation and puts on paper that an offender was sentenced , makes statements on an offenders Parole papers saying the Offender was convicted and sentenced for the charge the (so called Victims have accused them of) and the Offender never went to court on such a charge, never was convicted of those accusation,yet stipulations in bold print are on the Offenders Parole papers , saying he was sentenced and served time for that?!??? Of which those accusations had nothing to do with what the Offender was charged for and served time for! I think this same thing I am making a statement about "IS"the same as what happened to these men asssigned "sex Offender conditions without due process! Alot needs to be looked into!