Lawsuit Challenging Parole Board Review of Sex Offender Cases

Grits has the details on a very interesting lawsuit challenging the lack of individualized review in parole restriction decisions for sex offenders in Texas. Here is the Dallas Morning News's account of some of the history of the issues involved:

It's called Condition X: tough restrictions on the way some criminals, mostly paroled sex offenders, must live once they're out of prison....

Condition X determines the minutiae of their daily lives – whether they can visit a school or attend church; whether they can live with their families or in an apartment with a swimming pool; whether they can access the Internet, work at a convenience store, even whom they can date or marry.

Ms. Molnar and others say they're not championing pedophiles or rapists. But when someone has consensual sex with an older teen, "it is not as serious a crime as someone who has fondled a 6-year-old," she said.

That distinction is one reason Mr. Habern and attorney Richard Gladden are determined to force state officials to give parolees more due process.

And though their efforts mostly have been rebuffed by state judges, they're gaining some traction in federal courts:

• In 2004, the 5th U.S. Circuit Court of Appeals ruled that "Condition X" can't be imposed on parolees who haven't been convicted of a sex offense, without an "appropriate hearing."

• In 2006, the Texas parole board quit automatically denying sex offenders access to their own children, after a lawsuit claimed the board did not give a parolee notice or a hearing.

• Earlier this year, federal Judge Sam Sparks in Austin expressed "grave concerns over the fundamental fairness" of such parole board hearings and commented that the Texas attorney general's office, which represents state agencies, "has apparently failed to take such constitutional challenges seriously."

I have to admit that I am very surprised (and, consequently, impressed) that the lawyers have had any success with their challenges. There is no right to parole (the federal system abolished parole in the early 90's). Sex offender registry restrictions and residency restrictions also apply with no individualized decision-making. If the decisions were made by the legislature instead of the parole board, would the challenges be making any headway? Is this a case of where the offering of limited due process has come back to bite the government position? Ultimately, I am just not sure how these challenges will succeed under existing law. However, I haven't read any of the briefing. I am interested in reading more, though.