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Fifth Circuit: Sex Offender Conditions May be Imposed for Prior Sex Offense

by Matt Clarke

The Fifth Circuit Court of Appeals held that a person on parole for a crime that was not a sex offense, but who had completed a sentence for a prior sex offense conviction, could be subjected to sex offender parole restrictions.

David Brian Jennings was on parole for a Texas debit card abuse offense. He had a 30-year-old juvenile conviction for kidnapping with intent to violate or abuse the victim sexually – a sex offense – but had completed the sentence for that crime 17 years earlier. Without any notice to Jennings, Texas parole officials changed his conditions of parole to include Condition X, which included onerous sex offender restrictions.

Among other things, Condition X required Jennings not to date, marry or have a platonic relationship with an adult who had juvenile children without prior approval; not to maintain or operate computer equipment without written authorization of his parole officer; and to participate in sex offender counseling, including the use of a penile plethysmograph, “a strain gauge that is strapped to an individual’s genitals while sexually-explicit pictures are displayed in an effort to determine his sexual arousal patterns.”

Jennings unsuccessfully petitioned the parole board to remove the sex offender parole requirements. He then filed a civil rights suit in federal district court pursuant to 42 U.S.C. § 1983, arguing that the imposition of Condition X restrictions violated his procedural due process rights because he did not receive notice or a hearing before they were imposed.

The district court granted Jennings summary judgment, stating it was influenced by the fact that Jennings was a minor when he committed the sex offense, it had been 30 years since the sex offense was committed, and Jennings was on parole for debit card abuse, not a sex offense, when the Condition X restrictions were imposed. [See: PLN, Sept. 2009, p.20]. The defendants appealed.

The Fifth Circuit had previously held that parole officials could not impose sex offender conditions on a parolee who had not been convicted of a sex offense without providing procedural due process in the form of notice and a hearing. See: Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004) and 409 F.3d 665 (5th Cir. 2005) [PLN, July 2006, p.27].
Coleman had a liberty interest in not suffering the stigma of being falsely labeled a sex offender; for that reason, he had to be given an opportunity to contest whether he had committed a sex offense before Condition X could be imposed.

The Fifth Circuit found that Jennings’ case differed from Coleman in that Jennings had in fact been previously convicted of a sex offense – albeit three decades ago. Thus, Jennings was considered a sex offender and had already had an opportunity during his criminal trial to contest whether he had committed a sex offense. Jennings therefore had no liberty interest in not being subjected to sex offender parole restrictions, and was not entitled to procedural due process before such conditions were imposed. Parole officials could impose Condition X on Jennings without notice or a hearing.

The judgment of the district court was reversed and the case remanded for further proceedings consistent with the Fifth Circuit’s opinion. See: Jennings v. Owens, 602 F.3d 652 (5th Cir. 2010).

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Related legal case

Jennings v. Owens