On August 6, 2009, a federal judge ruled that hearings held by the Texas Board of Pardons and Paroles (BPP) to determine whether onerous sex offender conditions should be imposed on parolees not convicted of sex offenses had violated a parolee’s right to procedural due process.
Ray Curtis Graham, a Texas state parolee, filed a civil rights suit pursuant to 42 U.S.C. § 1983 in U.S. District Court after the BPP placed “condition X” sex offender requirements on his parole supervision even though he had not been convicted of a sex offense. A jury trial was held.
During the trial, former BPP general counsel Laura McElroy testified that the BPP’s policy was allowable under previ-ous federal court decisions. An exasperated U.S. District Court Judge Sam Sparks told the jury, “The lady is wrong. She is stating issues of the law that are wrong.” The BPP objected that Judge Sparks had improperly influenced the jury. He agreed, admitted he “was out of bounds,” and declared a mistrial.
The mistrial didn’t stop Sparks from issuing an order stating that Graham had been denied due process. Sparks noted that in Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004) [PLN, July 2006, p.27], the Fifth Circuit held that sex offender conditions were “qualitatively different” from standard parole conditions and may be placed on a parolee who was not convicted of a sex offense “only if he is determined to constitute a threat to society by reason of his lack of sexual control,” after affording the parolee an appropriate hearing.
Judge Sparks found that the Coleman “hearing” held by the BPP in Graham’s case did not meet procedural due process standards because: (1) neither Graham nor his attorney was allowed to attend the hearing; (2) Graham was not allowed to review the evidence used against him, including the report of a licensed sex offender treatment provider who had interviewed Graham; and (3) “never in the entire Coleman process was a knowing, explicit finding made by anybody that Mr. Graham ‘constituted a threat to society by reason of his lack of sexual control.’”
In the latter regard, one of the two voting parole commissioners from Graham’s Coleman hearing testified – “to the Court’s stunned disbelief – that he did not know who, if anyone, was to make this finding.” The only finding made was that Graham “could pose a threat to society,” which Sparks observed could apply to anyone.
The court ordered the BPP to hold a new Coleman hearing with Graham and his attorney present, allow Graham’s attorney a 20 minute oral presentation, and have a court reporter record the proceedings. The order also stated that Graham could recover attorney fees and costs from his civil rights suit if he subsequently prevailed at trial, because BPP officials admitted that the suit had caused them to change their policies.
Sparks showed impatience at what he considered to be the BPP’s ignoring earlier federal court decisions and a re-cent directive he had issued. “It’s time for the parole division and the Board of Pardons and Paroles to stop being defensive and start trying not to use technical defenses,” he said.
Another Coleman hearing was held in compliance with the court’s order, and the BPP again found that Graham should be subject to sex offender conditions. Although Graham later challenged that finding in his federal suit, the court denied his motion, stating, “The [BPP] commissioners’ reasons for making such a determination, however nefarious they may be, are simply beyond the purview of this Court as long as their procedures complied with the Court’s order.” Sparks held that because the second hearing comported “with the procedural due process requirements set forth [in] Coleman,” he would not mandate the exact procedures the BPP had to follow.
“This is all on a collision course,” stated Scott Medlock, prisoners’ rights program director for the Texas Civil Rights Project. “Three federal judges and two appellate courts have told them the system has to change ... but the state’s litigation strategy is that the [5th U.S. Circuit Court of Appeals] will bail them out. I don’t think so.”
“I think this case displays the arrogance of power that permeates the parole board,” said William T. Habern, one of Graham’s attorneys.
Habern, who has fought for parole policy changes for years, now sees change through federal court intervention as inevitable regardless of how much the BPP resists. However, BPP officials continue to claim that their policies are constitutional and refuse to comment on any changes they might be considering.
The BPP’s seven board members and eleven commissioners review about 23,000 prisoners for parole each year. They also determine whether parole violators should be revoked, and rule on applications for pardons. The BPP members spend an average of four minutes on each case when deciding whether to grant or deny parole, and such cursory examinations lead to numerous errors.
“There are hundreds of cases each month that have to be voted again because the board didn’t impose the conditions they should have, because they didn’t read the files,” stated Sandra Pickell, former assistant director of review and re-lease for the Parole Division (PD) of the Texas Department of Criminal Justice. The PD doesn’t review parole files for errors that might jeopardize a prisoner’s potential parole. The only errors they look for are when, for example, the BPP fails to require a DWI parolee to attend substance abuse meetings or a sex offender parolee to attend therapy sessions.
“It’s horrible, a totally unbelievable system that is not working right,” remarked former BPP member Burt Reyna.
Reyna, who left the BPP in 2004, said that case summary reports should at least be disclosed to potential parolees and their attorneys. “There are too many mistakes in those files that are never caught, because there are currently no checks and balances in the system,” he stated.
Until recently the BPP’s files remained a closely-guarded secret, effectively concealing potential errors and misinformation from outside review.
The files are still mostly secret, but in June 2009 the BPP changed its policy related to whether a parolee not convicted of a sex crime is subject to sex offender conditions. Under the new policy such parolees can see their evaluation reports, which previously were confidential. The policy was also changed to require a finding of whether the parolee is a continuing threat to society due to a lack of sexual control, as required by Coleman.
A re-trial in Graham’s lawsuit was held on October 5, 2009. The jury found that BPP Chairman Rissie Owens and PD Director Stuart Jenkins had violated Graham’s constitutional right to procedural due process, and that Owens’ actions were objectively unreasonable in light of clearly established law. The jury awarded damages in the amount of $15,000 for mental anguish or loss of enjoyment of life and $6,250 for out-of-pocket expenses.
However, on November 10, 2009, the district court held in a post-trial motion for judgment as a matter of law that while Graham’s due process rights had been violated, Owens could not be held personally liable under 42 U.S.C. § 1983 because she did not vote in Graham’s Coleman hearing, there was insufficient evidence of supervisory liability, and she was not subject to vicarious liability. The damages award was therefore voided.
Separately, the court held Assistant Attorney General Kim Coogan, who had represented Jenkins, in contempt of court “for insubordination and repeated violations of the Court’s instructions in the presence of the jury,” and imposed a $500 fine. Graham’s motion for attorney fees remains pending and he has appealed the district court’s ruling that voided the damages award. See: Graham v. Owens, U.S.D.C. (W.D. Tex.), Case No. 1:08-cv-00006-SS.
PLN has previously reported on challenges to sex offender conditions being placed on Texas parolees who have not been convicted of sex offenses. [See: PLN, Sept. 2009, p.20; Oct. 2009, p.30]. Apparently, it will take more than federal lawsuits and court orders before such conditions are imposed by the BPP in a constitutional manner.
Additional source: Austin American-Statesman
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Related legal case
Graham v. Owens
|U.S.D.C. (W.D. Tex.), Case No. 1:08-cv-00006-SS
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