Sunday, May 15, 2011

New costs likely for jails, state from TDCJ's 'flagrant' violation of constitutional law

For the second time this month, the Texas Court of Criminal Appeals has told the Department of Criminal Justice and the Board of Pardons and Paroles to begin holding a lot more hearings to provide parolees due process, decisions which come with a high financial price-tag that's accounted for in neither the House nor Senate budgets.

Earlier, the CCA ruled that the Board of Pardons and Paroles couldn't apply sex-offender registration conditions ("Special Condition X," in the parlance) without a hearing when the offender hadn't been convicted of a sex offense. Nearly 7,000 parolees are affected by that one. Now, we learn from Liberty and Justice for Y'all of an important new case that, even though the defendant's habeas writ was denied, will almost certainly, radically change how TDCJ handles parole revocations, requiring preliminary hearings mandated by the US Supreme Court that the agency had been skipping because of convenience, funding, and a desire to help out prosecutors.

In Ex Parte Bohannan, the CCA denied relief because TDCJ belatedly held a "preliminary hearing" in order to moot the parolee's due process claim. The CCA agreed it was moot for him, but a concurring opinion (pdf) by Judge Michael Keasler, signed by three other judges, declared in the strongest possible language that the failure to provide preliminary hearings "violates a releasee’s constitutional rights, and our experience with this issue establishes that the Board, pursuant to the policies established by the TDCJ, Parole Division, has violated, and continues to flagrantly violate, clearly established constitutional law."

TDCJ filed an amicus brief in which it said there is "no reasonable expectation" that they'll anytime soon begin to hold such hearings, to which the concurrence said, "This is patently unacceptable. And if [TDCJ] 'reasonably expects' to continue this policy, it does so at its peril."  Extraordinary!

The concurrence even offered legal advice to parolees seeking relief in the future, declaring that while a habeas corpus writ "does not provide an adequate remedy at law ... to compel the Board to comply with its ministerial duty," a "mandamus clearly does. And in response to any future alleged violations on mandamus, as time is of the essence, it may be necessary and appropriate for TDCJ and the Board, through their legal representatives, to appear before us in person to answer any allegation that Morrissey’s mandate is being disobeyed."

So if TDCJ complies with the advice from concurring CCA judges, or if the CCA later acts on a mandamus motion, the practical result will be that the state must hold many more hearings than in the past, and since the CCA is interpreting a US Supreme Court ruling, the Legislature can't pass a law getting around it. Moreover, counties would face an additional burden from offenders with "blue warrants" languishing in jail waiting for TDCJ to process them.

Complying with the opinion would have at least two major consequences. TDCJ would need to hold thousands of preliminary hearings that would've been skipped for alleged parole violators. And counties must hold parolees in jail longer while they await those hearings. Currently, parolees who receive preliminary hearings prior to revocation spend an average of 13 additional days in county jail compared to cases with only a revocation hearing, according to the 2009 annual report (pdf) of the Board of Pardons and Paroles.

The Houston Chronicle reported in December, "Each month, an average of 2,286 state parole violators are housed in Texas jails, a policy costing taxpayers at least $42 million a year. Harris County has the largest tab — estimated at $7.6 million." I'll guarantee that if parolees on blue warrants are each in jail an average of 13 additional days, you'll soon hear counties wailing like scalded cats when they realize the implications.

The opinion argues strongly for the Lege to pass pending legislation to let parolees jailed on blue warrants out on bail, a bill that Gov. Perry vetoed in 2007. It also argues for the state to reduce the number of technical parole revocations, since they'll now cost more for both the state and counties than in the past. TDCJ isn't prepared to handle all these additional hearings and the Lege hasn't budgeted for them.

That said, maybe it's not right to frame this opinion as placing an "additional" burden on TDCJ or the counties, because really they had that burden all the time and just weren't carrying their full weight. The state has been skating on parolees' rights in the name of cost and convenience for many years, with state courts going along to get along. So it's rather startling to see the CCA finally focused on parolee due process questions. They're opening a can of worms that won't close any time soon.

20 comments:

  1. The Lege might not be able to do anything about this ruling, but the voters in the Republican Primary darn sure can. Texas voters have historically demonstrated very little patience with judges who coddle criminals.

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  2. BS, 2:12. The CCA is all conservative Rs; who are they going to vote for?

    Plus, even if you unelect them, that doesn't get rid of the 40-year old SCOTUS precedent. To get a different opinion you'd have to start electing judges without a law degree or cloning Sharon Keller.

    Thanks for playing, though, please try again!

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  3. 2:12, Since when do conservatives disrespect the Constitution? If 9 Republican judges think the state has "flagrantly violated" the Constitution, how is it that conservative Republicans aren't the first ones out of the gate pissed off about it? If judges said they'd "flagrantly violated" the Second Amendment, I bet you'd get a different reaction.

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  4. The countdown to a return to federal oversight of TDCJ-ID continues unabated. When it does happen, taxes will have to be raised in order to pay for it.

    Meanwhile, keep lockin' 'em up and throwin' away the keys. Wahoo!

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  5. Due process? Texas??? I just spit my Coca-Cola out!

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  6. i'm with you hook. but what cracked me up was in this case when the state did a so-called hearing

    "the CCA denied relief because TDCJ belatedly held a "preliminary hearing" in order to moot the parolee's due process claim."

    now to me that tells me the state knows it VIIOLATED THE LAW. I also know if you steal your car and AFTER you call the call i come back and put a gun to your head and get your permission. I'M STILL GOING TO JAIL!

    will just have TWO charges instead of one!

    so i dont' know why a bunch of judges is either too chicken or two STUPID to see the same type of activity in the state's case

    Plus if the court REALY meant to punish them it would have issued a simple order!

    "failure to have a hearing is in fact and in law a violation of said law! Which when brought before the court will result in the AUTOMATIC release of the individual and the immediatele payment of X dollars per day to be counted from the date the hearing SHOULD have taken place!"

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  7. Anon 2:12

    So you are in favor of trashing the Constitution then? I mean that is what you're saying correct? If so, lets start with the 2nd Amendment, continue with the 4th and 5th, then we can go back and pick up the 1st with the rest of them. I mean, why bother? if you are not in favor of allowing the 1 document that is supposed to protect the minority, or the group that everyone else in the country loathes then hell lets get on with the book burning.

    So a question for the more intelligent out there (since I have already spoken to the 1 that falls outside of that group), How does a belated ruling by TDCJ moot the point of this lawsuit? It was a question of Constitutionality right? Justice delay'd is Justice denied is it not?

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  8. S.O.: The guy filed a habeas corpus saying that TDCJ isn't giving me a hearing. Then they gave him a hearing. He got what he wanted, so no more controversy for the courts to decide and his habeas corpus gets dismissed.

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  9. 9:58, that's exactly right. But the other takeaway is that this is a situation "capable of repetition, yet evading review," meaning TDCJ can violate the law then quickly react in the rare instances when they're challenged, as they did here, to moot it before courts can intervene. That's why the CCA suggested mandamus. TDCJ's constitutional violations are ongoing, they just happen faster than the courts can monitor them.

    2:40, this was a concurrence. Only four judges signed it, not nine.

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  10. I have this stinging suspicion that TDCJ is not going to take the steps to comply with this ruling any time soon. If so, I really hope the CCA requires the agency to appear before them to answer future allegations as noted in the opinion. Good job, CCA!

    Recently I read that Florida's governor signed into law a bill that would allow majistrates to hold an offender on probation who was arrested for a new crime until a probation hearing can be held. I know that several other states do this, and as a probation officer I really like this idea because it allows us to quickly address the probation violation. As a practical matter, it gets the sentencing courts attention immediately, but also prevents the probationer from bonding out of jail just to be arrested again within the next few weeks on the probation violation warrant. I see this as a way of getting the wheels moving quickly rather than having a probationer in violation languishing in the system for months.

    But I also see that the way the current system is designed will put probation in the same "flagrant violation" status that TDCJ and BPP are in this case. Systematic change needs to occur from the top down. Can we really enforce laws by violating some of our most basic?

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  11. Everyone should know by now that TDCJ is as crooked as a dog's hind leg. This doesn't surprise me in the least.....

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  12. The only smart and humane course of action is for the Feds to take over TDCJ once again and I am willing to bet some of those running TDCJ will be dressed out in white one day soon.

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  13. grits you and 9:58 need to reread the article

    the state didnt' have a hearing. they imposed special conditions outside of the LAW then when he pitched a fit and filed against the state...they had a quickie hearing that should have been done BEFORE any impositon of conditins and then tried to say ...IT'S ALL BETTER NOW!

    sorry legally it dont' work that way for anyone else!


    The state LEGALLY BROKE THE LAW. But of course another part of the same state establisihment basically said YEP you broke the law...but so what! No punishment applied!

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  14. rodsmith, actually legally it does work that way, which is why the habeas petition was denied for mootness. The concurring judges simply pointed out a different tactic for forcing TDCJ to always comply with the law instead of only when they're about to be bench slapped by the courts.

    Texas PO, you may be right about TDCJ's recalcitrance, but judging from the names on that concurrence (Michael Keasler wrote it and Judge Cochran, usually a swing vote, joined), the CCA seems likely to follow up on the threat that the agency does so at their peril.

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  15. Grits, how will this impact probationers that get sex offender conditions. Some judges do this when a charge is reduced from a sex offense to something else. A probationer may even have a sex offense in their past and get some sex offender conditions to follow.

    Thanks

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  16. Meza raped and murdered a 9 year old and then pled down to a lesser offense. Imposing sex conditions on him is as plain as day. This decision to make the Board have a hearing to make that determination is a farce. All you have to do is read the facts at issue to know the guy is a sex criminal. Just because he didn't plead guilty to a sex act in court is meaningless. In any fair judicial system the MF would have been executed...

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  17. sorry grits but i still say your wrong. Once the state imposed the special conditions without the legal court ordered hearing they comitted a CRIME!

    just like if i came to your house and stole your car...i comitted a crime

    now you and the court say just becase after he complained and filed a complain and they had the hearing they were legally required to have BEFORE it's now all okiedokie.

    well back to the car example.

    What if after i steal your car and after you have filed your police report but BEFORE they can find me i come back to your house and force you to sign a paper that says you gave me the car.

    what happens.

    I STILL GO TO JAIL! I jsut now have TWO charges.

    Since NOTHING can change that FIRST CRIME that was comitted.

    it's the same here!

    Sorry once they imposed the illegal special condictions they became just as much a bunch of crooks as this guy and just as deserving and jail time and a chance to get hit with "special conditions" if there are any old no-no's in THEIR closets!

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  18. This case has nothing whatsoever to do with imposition of "special conditions" and the Meza case. That was a few weeks ago. This case is about giving parolees timely preliminary hearings before they get revoked.

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  19. Or continued on parole, of course.

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  20. sorry 8:40 based on this i though we we're talking about both!

    "For the second time this month, the Texas Court of Criminal Appeals has told the Department of Criminal Justice and the Board of Pardons and Paroles to begin holding a lot more hearings to provide parolees due process, decisions which come with a high financial price-tag that's accounted for in neither the House nor Senate budgets.

    Earlier, the CCA ruled that the Board of Pardons and Paroles couldn't apply sex-offender registration conditions ("Special Condition X," in the parlance) without a hearing when the offender hadn't been convicted of a sex offense. Nearly 7,000 parolees are affected by that one. Now, we learn from Liberty and Justice for Y'all of an important new case that, even though the defendant's habeas writ was denied, will almost certainly, radically change how TDCJ handles parole revocations, requiring preliminary hearings mandated by the US Supreme Court that the agency had been skipping because of convenience, funding, and a desire to help out prosecutors."

    And in BOTH cases the state VIOLATED the law then when called on it by the individuals tried to do hurry up hearing to make it all go away. Never mind that their actions were CRIMINAL and should not be just ignored!

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