Sunday, September 25, 2011

Parole board continues shell game over due process for sex-offender conditions

A federal judge on Tuesday issued yet another bench slapping to the Texas Board of Pardons and Paroles over the BPP's insistence on placing sex-offender conditions on (possibly) thousands of parolees who've never been convicted of a sex crime. Reported Mike Ward at the Austin Statesman:
The latest decision came Tuesday when U.S. District Judge Lee Yeakel of Austin approved an injunction blocking state parole officials from enforcing sex-offender restrictions on a Fort Worth parolee who said he has been threatened with being sent back to prison if he doesn't waive his right to a hearing.

Last week, the Texas Court of Criminal Appeals ordered the restrictions — officially called Condition X — removed from the parole conditions for a Houston kidnapper because he was not afforded a due-process hearing before they were imposed and because he had not been convicted of a sex crime.

The decisions were the latest setback for the Texas Board of Pardons and Paroles and state corrections officials, who have insisted for years that, to ensure public safety, they could impose the stringent conditions on parolees without a due-process hearing .

Although previous court rulings have required the hearings, the state has not routinely offered them. And parole attorneys say the two recent cases indicate the courts are losing patience.
To clarify Ward's assessment, the hearing before Yeakel wasn't exactly about the parolee "waiving" a hearing. Instead, parolee Buddy Yeary sought to be released from Conditions "X" because he was never afforded due process. In response, the parole board ordered Yeary to undergo a sex-offender evaluation including a plethysmograph test - which is a bit of unproven junk science that courts have excluded at trial for its lack of reliability but which is routinely used in post-conviction evaluation and monitoring of (in this case alleged) sex offenders.  Yeary was told was told that if he did not complete the evaluation and plethysmograph by 5 PM on Tuesday, September 6th, that his parole would be revoked. Judge Yeakel wouldn't allow it, though, issuing a temporary restraining order and ultimately removing Yeary's sex-offender conditions.

Via email, I asked one of the attorneys in the case, Bill Habern, what this meant for other, similarly situated parolees, and he responded thusly: "We do not know what impact will attach to this decision as it applies to other non-plaintiff's in the same class. I have yet to see the written order from the court. When it is filed I will forward you a copy. The judge was quite 'expressive' in his comments and concerns over why this issue continues to live on when the parole agencies have long faced the consistent decisions from Coleman, Meza, Graham, Evans, Baker, and the case last week from the CCA. Yeakel suggested the parole agencies apply a little 'common sense' to what these decisions mean in relationship to the other parolees."

Another oddity, says Habern: An "astounding thing that we learned [at the hearing] was that the number of people who had no hearings but were on Coleman supervision dropped from the Board's last number of approximately 7,000 down to about 140. No one knows what seems to have happened to the other 6,860 that Troy Fox testified to during the Graham case. It all makes no sense to either Richard [Gladden] or I." Who knows what the real number is, since both have been sworn to in court and no explanation was provided for the difference.

The drama doesn't end there, however. In response to this increasingly long list of judicial bench slappings, the parole board recently created a new policy (pdf) - which has not yet been reported in the MSM - aiming to apply "Condition X" prior to release on parole instead of after release. Wrote Habern, the parole board is:
sending notice to such offenders informing them they have been approved by the parole board for parole subject to their agreeing to enter sex offender treatment while in TDCJ and thus waiving their Coleman rights to due process. If they do not agree,. then their parole approval will be re-considered by the Board. ... We are hearing that the offenders are being coerced into signing these waivers in order that at least they get out of prison even if on sex offender parole, and even though they end up on sex offender supervision and are denied all due process from the point of signing the attached documents forward.
The parole board now asks inmates so situated - prior to being granted parole - to waive the due process rights Yeakel and Judge Sam Sparks have said should be afforded before Condition X is applied, including access to counsel, and a hearing, with the right to examine and cross examine witnesses.  Habern notes that "With the backup in the prison sex program of up to 10 months plus, and in some cases with an 18 month program, it means you may have a document that says you are to be paroled - maybe -  in 28 months in some cases."

Habern adds that the new waiver form violates inmates' 5th Amendment rights against self incrimination, telling potential parolees "that if they admit to other crimes for which they have not been charged,  those admissions will be passed on to prosecutors (the inmates have no lawyers at the time of these evaluations), and instead of a hearing, as required by Coleman, Meza and Evans, they will be given 30 days to respond in writing as to why they should not be placed in sex offender supervision. This skips right over many of the elements of due process the law requires," said the veteran parole attorney.

So the Board of Pardons and Parole is essentially playing a shell game, attempting to hide the pea (a due process hearing required under the Coleman case) amidst an ever-dizzying array of changing policies and procedures.

Habern points to court precedents relying on the Coleman decision from other parts of the country that indicate due process should be required before labeling prisoners a sex offender whether or not they've been released yet on parole. In Pennsylvania last year, the US 3rd Circuit Court of Appeals ruled in Renchenski v. Williams (pdf) - based explicitly on the 5th Circuit analysis in Coleman - that “prisoners who have not been convicted of a sex offense have a liberty interest created by the Due Process Clause in freedom from sex offender classification and conditions,” whether they are in prison or have already been paroled. (The plaintiff Renchenski in that case is serving a sentence of life without parole.)

Though Renchenski carries no precedential value in Texas, the 3rd Circuit case was appealed to the US Supreme Court, which denied cert. So SCOTUS saw nothing wrong with the 3rd court's interpretation of  5th Circuit's pronouncements on liberty interests related to sex-offender conditions. It would be surprising if the federal judges  who've been slapping around the Texas parole board choose to ignore that interpretation and allow this new procedure to stand.

All this posturing and hair splitting by the parole board serves just one purpose: To avoid admitting a mistake and complying with repeated findings in state and federal court that due process is required before assigning parolees sex-offender conditions when they haven't been convicted of a sex offense.

The solution is as simple as it is unlikely to be implemented by the parole board without an explicit court order: The parole board should hold hearings before assigning sex-offender conditions to parolees and remove those conditions in cases where hearings weren't held. The longer they wait to do this, the more likely they are to be held liable in pending civil rights litigation over the subject. At this point the board seems to be willfully thumbing its nose at federal courts, and as a general rule that approach doesn't end well.

See related Grits posts:


Soronel Haetir said...

My only comment is on your interpretation of SCOTUS not hearing the 3rd circuit case. No meaning, one way or the other, is to be attached to a denial, and so to say that the court saw nothing wrong with the lower court decision is a bit strong.

The rest, however, I do agree with.

Anonymous said...

They did the crime but they got to plead to a lessor crime to expedite their case. In our passion for political correctness, we can pretend that what matters is only what we call what they did. Deep down, we know that what matters is what they really did.

To make it sound like a case of injustice, we have to do the tired old bit of distortion and deception that is the lot of the advocate. OK, lets hear the distortions. Remember, always keep what they did hidden.

Gritsforbreakfast said...

SH, that's fair enough, though the effect for the 3rd Circuit is to leave their interpretation (of the 5th Circuit reasoning) as good law in that jurisdiction. It's also a likely guide to how federal judges here would view the same situation, particularly given recent district court decisions.

10:16, what did "they" "really" do? We're talking about 7,000 people. What generalization would you make that applies to all of "them"?

If anything is "tired," it's trolls who accuse others of crimes they weren't convicted of, but do so anonymously because they know that making the accusation under their own name would be per se libel. Coward.

Anonymous said...

"If anything is "tired," it's trolls who accuse others of crimes they weren't convicted of, but do so anonymously because they know that making the accusation under their own name would be per se libel. Coward."

You tell 'em, Scott!

To Anonymous 09/25/2011 @10:16 AM:

It's getting to the point that any crime, no matter how minor, becomes a life sentence. False accusations, distortion and deception are the lot of the advocate alright: the devil's advocate! Once a person does their time for whatever valid and extant crime they may have committed, that should be the end of it. Sex-offender laws and related registries serve no purpose other than to destroy a life, extend ignorance, prison, and poverty beyond the prison walls and eventually make felons of all us.

--yet another anonymous coward
P.S. Thanks, Grits! I love this blog. ;-D

rodsmith said...

personaly i think anyone handed one of these criminal extortion documents should take it to the nearest police station and have the issuer arrested for extortion and blackail!

as far as the idiots on the bench are concerned. Maybe if they got off their asses and issued a few bench warrents for parole officers and parole comissioners and shoved them into a cell for a few MIGHT sink in that their CRIMINAL ENTERPISE is over! and they now have two choices. RETIRE quietly into the sunset..or SPEND THE REST OF THEIR LIVES IN PRISON

Parole Advocate said...

Anyone who believes that 1) everyone in prison is guilty or 2) that all of the people being assigned this condition committed some type of sex crime are delusional.

Great reporting on this topic GFB. We've been following it but hadn't seen the new parole form yet. By the way, the prisoners are presented these the morning they are to leave the prison and if they don't sign then they don't get out.

Anonymous said...

I'm not surprised the parole board is violating the law. DAs throughout Texas lie, threaten, intimidate, and use other tactics to force innocent people to plead guilty to these unsubstantiated sex charges. But, you let an accused lie and that's a serious problem.

I'll be surprised when the Scarlet Letters SO become disconnected from hysteria, lies, and untruths.

Anonymous said...

What I find interesting is that along with insanely light sentences such as probation, police officers who are convicted of a child sex crime are rarely required to register as sex offenders.

It astonishes me that after reading the cases of a few thousand convicted officers, it seems that the DA and the judges are actually advocates for the officer-predator instead of the victim.

See for yourself:

wisdom of solomon said...

I served 20 straight years in TDC ('85-'05) I went in during the Wm Wayne Justice & David Ruiz era that was just coming to an end. I personally witnessed the TX Parole Board basically tell Wm Wayne Justice to go straight to hell with a lot of his rulings and he did nothing about it. So I've always wondered how and why appointees at a state agency could get away with violating a federal court order. Are these people (parole board members) above the law? Are they that powerful? And why doesn't that federal Judge issue a contempt of court ruling and put these people in jail? I mean, these people are "APPOINTEES" for crying out l oud, not elected officals. So this lastest episode with the parole board defying federal court orderes is of no surprise to me---I seen them do it for 20 years while in TDC. But if anyone can explain to me how they can get away with it I would be very, very appreciative.

sunray's wench said...

wisdom of solomon ~ they get away with it for 2 reasons:

1, because the only person with the ability to remove them keeps getting voted in and now wants to run the country the same way.

2, because those who do make it out of TDCJ on parole or paper-free generally don't have the money to then take their case to law. most want to get as far away from TDCJ / Tx as they possibly can. Even if someone could afford to take the case to law, it would take years and years to get a ruling.

Phillip Baker said...

Sorry, I'm losing track of the "anonymous" folks. This is for 9:25, I think.

TDCJ ignores/refuses to be honor court orders already. Roddy Pippin was sentenced to 4,2 yr state jail sentences, stacked (stole some cows at 19). Despite surviving UTMB 3rd world care(has rare form of Type 1 diabetes) and doing his time day for day in state ID prisons, he is still locked up. Why? Several years after he served that 2nd term on court-ordered house arrest with supervision by a TDCJ PO, TDCJ Gen Counsel Offc simply refuses to count those 2 yrs in his time credits? Why? Trial court judge set his end-date for release at 1-20-11. TDCJ classification/release date pros agree he's done his time. No explanation, just set his release as 1-20-13! Now his writs have sat at 3rd CCA since last December with no sign they will rule. He's already done an extra 8 months beyond his max release! To rule in his favor would expose the many serious mistakes made by the trial court and TDCJ (opinion of TDCJ class. pros, not mine). But this is justice in Texas- you may get heard by the court, but it just runs out the clock till it's all irrelevant, then dismisses as moot. Don't want to offend courts,TDCJ, Board of P&P. They each face re-election and those are powerful constituencies.We have a deeply flawed "justice" system. Yet another reason to stop electing judges -and DA's, making them beholden to DA's, TDC, etc for money and votes.

Anonymous said...

And yes, Sunwray, there is no real recourse. If he filed in federal court for relief, he'd have been released long after that added sentence before it was even heard. Plus it costs thousands of$$.

As I've said before, we ration 2 of the most important services for human needs in this country: health care and access to law. Ya got the $$, ya get the services.

phillip baker said...

Sorry, that was not supposed to be anon. Hit wrong button.

Sheldon tyc#47333 said...
This comment has been removed by the author.
Sheldon tyc#47333 said...

Texas Youth Commission = State Sponsored Pedophilia.

I would be willing to bet tyc’s poster staff Ray Brookins gets 1st parole with no condition x.

TDC has always been regarded as above the law. That’s why the Ruiz case cost the tax payers so much money.

rodsmith said...

yea sunny we had a case like that here in florida. Poor sucker had a public pretender. Plead out to what was suposed to be a couple of months. 3 years and 2 court orders from the judge later! he got fed up and ESCAPED! 3-5 years later they caught him in my county! this time he let family help him. Had a private lawyer who presented our judge with all the original trial documents, BOTH court ordered relase documetns!

Judge said since Department Of Correnctions didn't seem to know how to READ he was ordering the sheriff to take the guy to the goodwill store. Get him an outfit of clothing. Put him on a bus Out of the state and back to his home and to ESCORT it to the state line and if DOC had a problem with it they were welcome to bring themselfes to HIS court and explain it!

Anonymous said...

Why dont they just make some new conditions of parole for potentially high risk offeders instead of puting these individuals on the sex offender case load. I know the main goal is to ensure that these offenders are monitored more closely while on parole. They could just name caseloads "Burglary Offender Case load" and "Robbery Offender Case load" and make additional rules for offenders who have committed such offenses. This would be a much simpler position if the only goal is to have the parolee more closely monitored.