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:

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