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Third Circuit Unbothered by Pennsylvania’s Discrimination Against Sex Offenders in Denying Parole to Halfway Houses

by David M. Reutter

In a precedential ruling displaying galling cowardice, the U.S. Court of Appeals for the Third Circuit ordered summary judgment on November 9, 2022, against a group of sex offenders whose class-action suit claimed their civil rights were violated when the Pennsylvania Department of Corrections (DOC) denied them parole to a halfway house.

Specifically, Plaintiffs said that DOC’s consideration of “community sensitivity” when evaluating parolees for halfway-house placement violated the Equal Protection Clause of the Fourteenth Amendment, since it subjected sex offenders to suffer the prevailing prejudice of the community rather than protecting them from it.

Defendant prison officials were appealing a decision by the U.S. District Court for the Eastern District of Pennsylvania that granted judgment for the class, holding “sex offenders and non-sex offenders are similarly situated and consideration of ‘community sensitivity’ when making halfway house assignments is irrational,” the Third Circuit recalled.

But it found that erroneous. Noting that “not all crimes are alike,” the Court said that “differences among sex crimes, and between sex crimes and non-sex crimes, preclude the purported similarity between sex offenders and non-sex offenders in this case.”

First, the Court chided plaintiffs, parole is not a right. Rather it is “a matter of grace and mercy shown to a prisoner who [has] demonstrated to the Parole Board’s satisfaction his future ability to function as a law-abiding member of society upon release.”

Wasn’t that plaintiffs’ point – that nothing they could do would satisfy the Parole Board if it remained fixated on ‘community sensitivity’? The Court replied with a shrug, noting that sex offenders already face collateral consequences due to the nature of their crimes, including required treatment and registration, as well as victim and community notification of their release and residence location. They also face restrictions on where they live.

So that makes it hard to place sex offenders, the Third Circuit allowed. “In at least one instance, community backlash against high concentrations of sex offenders in neighboring halfway houses caused a halfway house to close,” the Court recalled.

Such placement difficulties also mean that paroled sex offenders usually remain in halfway houses “until their maximum sentences expire,” the Court admitted. Moreover, “because sex offenders receive higher-than-average maximum sentences, it can take years for their sentences to expire once they are paroled” – far longer than the 90 days spent in a halfway house by the average parolee. Confronted with evidence of bias and harm, what did the Court do?

It caved.

“Differences between crimes,” the Court repeated, “reasonably explain differences in treatment.” Moreover, collateral consequences imposed upon sex offenders have been upheld because they are “a serious threat in this Nation,” as the Supreme Court said in McKune v. Lile, 536 U.S. 24 (2002).

“A discretionary grant of parole cannot erase those differences,” the Third Circuit added.

Thus, Class members could not show they are similarly situated to non-sex offenders. They also failed to show that DOC’s halfway house policy is irrational.

“The Parole Board can’t predict any offender’s conduct,” the Court offered, and “[c]ommunities rationally fear that sex offenders pose a serious ‘danger to the community’ because they typically have a ‘higher risk of recidivism.’”

As proof, the Court pointed to 2019 Bureau of Justice Statistics data to warn that “[h]alf of prisoners released after serving time for rape or sexual assault had an arrest within [nine] years that led to a conviction.” But that report also noted that such offenders were less likely to be arrested than other released prisoners, and less than 8% were arrested for another rape or sexual assault. [See: PLN, Dec. 2019, p.48.]

Nevertheless, the Court continued, the “public’s moral judgments about sex offenses are legitimate in post-conviction matters,” so DOC “has a rational interest in considering community concern over high concentrations of sex offenders.”

Thus the district court’s judgment was reversed and the case remanded with instructions to enter summary judgment for DOC. Plaintiffs were represented by attorneys Donald Driscoll of Community Justice Project and Alexandra Morgan-Kurtz of Pennsylvania Institutional Law Project, both in Pittsburgh. See: Stradford v. Sec’y Pa. Dep’t of Corr., 53 F.4th 67 (3d Cir. 2022).

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