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Non-Sex-Offender Parolee Entitled to Due Process Before Being Treated As Sex Offender
by Matthew T. Clarke
The Fifth Circuit court of appeals held that a parolee who has never been convicted of a sex offense is entitled to a due process hearing prior to being required to register as a sex offender and attend sex offender treatment as a condition of parole.
Tony Ray Coleman, a Texas state prisoner, was on parole for burglary of a habitation when he was indicted for aggravated sexual assault of a child and indecency with a child by contact. He pleaded guilty to the lesser charge of misdemeanor assault and his parole was revoked. Later, he was released on mandatory supervision. However, without giving him advanced notice or a hearing to contest the conditions, the parole panel required him to register as a sex offender and attend sex offender therapy. Coleman registered, but failed to attend therapy and was revoked for that reason.
Coleman filed a pro se federal petition for a writ of habeas corpus alleging that his procedural and substantive due process rights were violated when the parole panel required him to register as a sex offender and participate in sex offender therapy even though he had no sex offense conviction. The district court dismissed the petition and Coleman appealed.
The Fifth Circuit appointed Daniel Edward Laytin and Elizabeth A. Larsen of Chicago, Illinois, as Colemans counsel on appeal. Overruling the state's attempt to have two of Coleman's claims procedurally barred, the Fifth Circuit held that Coleman could properly exhaust his claims by raising them in his reply to the state's answer to his state petition for a writ of habeas corpus.
Following the Ninth and Eleventh Circuits, the Fifth Circuit held that a prisoner who has not been convicted of a sex offense has a liberty interest in freedom from classification as a sex offender. In doing so, the court applied the stigma plus compelled behavior-modification treatment standard of Vitek v. Jones, 100 S.Ct. 125l (1980). As in Vitek, the state imposed stigmatizing classification and treatment on Coleman without providing him any process. The state's sex offender therapy, involving intrusive and behavior-modifying techniques, is also analogous to the treatment provided for in Vitek.... Accordingly, the Due Process Clause, as interpreted in Vitek, provides Coleman with a liberty interest in freedom from the stigma and compelled treatment on which his parole was conditioned, and the state was required to provide procedural protections before imposing such conditions. The state court's denial of the state habeas petition was thus contrary to clearly-established federal law.
The Fifth Circuit held that the sex offender treatment, even that involving hooking a strain gauge to the penis (called a plethysmograph) and showing the sex offender a series of photographs to identify deviant sexual arousal patterns and modify them into acceptable sexual arousal patterns is not conduct that shocks the conscience. It also held that the parole panel did not impose the registration and treatment conditions intending to injure Coleman. Thus, Coleman's substantive due process rights were not violated.
Coleman had a procedural due process right to a hearing in which the state may seek to prove that he lacks sexual control and thus constitutes a threat to society. Only if it proves the lack of sexual control and threat to society may the state impose sex offender registration and treatment as a condition of Coleman's parole. The case was returned to the district court for further proceedings consistent with the Fifth Circuit's opinion. See: Coleman v. Dretke, 395 F.3d 216 (5th. Cir. 2004).
The Fifth Circuit court of appeals held that a parolee who has never been convicted of a sex offense is entitled to a due process hearing prior to being required to register as a sex offender and attend sex offender treatment as a condition of parole.
Tony Ray Coleman, a Texas state prisoner, was on parole for burglary of a habitation when he was indicted for aggravated sexual assault of a child and indecency with a child by contact. He pleaded guilty to the lesser charge of misdemeanor assault and his parole was revoked. Later, he was released on mandatory supervision. However, without giving him advanced notice or a hearing to contest the conditions, the parole panel required him to register as a sex offender and attend sex offender therapy. Coleman registered, but failed to attend therapy and was revoked for that reason.
Coleman filed a pro se federal petition for a writ of habeas corpus alleging that his procedural and substantive due process rights were violated when the parole panel required him to register as a sex offender and participate in sex offender therapy even though he had no sex offense conviction. The district court dismissed the petition and Coleman appealed.
The Fifth Circuit appointed Daniel Edward Laytin and Elizabeth A. Larsen of Chicago, Illinois, as Colemans counsel on appeal. Overruling the state's attempt to have two of Coleman's claims procedurally barred, the Fifth Circuit held that Coleman could properly exhaust his claims by raising them in his reply to the state's answer to his state petition for a writ of habeas corpus.
Following the Ninth and Eleventh Circuits, the Fifth Circuit held that a prisoner who has not been convicted of a sex offense has a liberty interest in freedom from classification as a sex offender. In doing so, the court applied the stigma plus compelled behavior-modification treatment standard of Vitek v. Jones, 100 S.Ct. 125l (1980). As in Vitek, the state imposed stigmatizing classification and treatment on Coleman without providing him any process. The state's sex offender therapy, involving intrusive and behavior-modifying techniques, is also analogous to the treatment provided for in Vitek.... Accordingly, the Due Process Clause, as interpreted in Vitek, provides Coleman with a liberty interest in freedom from the stigma and compelled treatment on which his parole was conditioned, and the state was required to provide procedural protections before imposing such conditions. The state court's denial of the state habeas petition was thus contrary to clearly-established federal law.
The Fifth Circuit held that the sex offender treatment, even that involving hooking a strain gauge to the penis (called a plethysmograph) and showing the sex offender a series of photographs to identify deviant sexual arousal patterns and modify them into acceptable sexual arousal patterns is not conduct that shocks the conscience. It also held that the parole panel did not impose the registration and treatment conditions intending to injure Coleman. Thus, Coleman's substantive due process rights were not violated.
Coleman had a procedural due process right to a hearing in which the state may seek to prove that he lacks sexual control and thus constitutes a threat to society. Only if it proves the lack of sexual control and threat to society may the state impose sex offender registration and treatment as a condition of Coleman's parole. The case was returned to the district court for further proceedings consistent with the Fifth Circuit's opinion. See: Coleman v. Dretke, 395 F.3d 216 (5th. Cir. 2004).
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