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In June, an attorney who's knowledgeable on the subject predicted to Grits "that most cases will have Condition X withdrawn by transmittal to a Board panel, and not by a mass of hearings," but  that's not what's happening.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:

• Did parole board dawdling create civil liability for Texas on sex-offender conditions?
• New parole rules require due process for sex-offender conditions
• Court: Parole board can't impose sex-offender conditions without evidentiary hearing
• Judge Sam Sparks: Parole chief Rissie Owens is "indecisive, insensitive, inattentive, incompetent, stupid, (or) weak-kneed"
• Federal judge: Parole board may have improperly labeled thousands as 'sex offenders'
• Federal litigation seeks individualized review of sex-offender cases by parole board