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Due Process Required Before Termination from Colorado Sex Offender Treatment Program
The United States District Court for the District of Colorado has again found that Colorado state prisoners convicted of sex offenses have a liberty interest in receiving treatment and must be afforded due process prior to termination from treatment.
Colorado state prisoner Jeffrey Beebe was sentenced in 2001 to an indeterminate three years to life term under Colorado?s extremely harsh Sex Offender Lifetime Supervision Act (Lifetime Act), which mandates life sentences for certain enumerated sex offenses above class 5 felonies that occur on or after November 1, 1998. See: C.R.S § 181.31001 et seq.
Colorado law also mandates sex offender evaluation and treatment. See: C.R.S § §1611.7105 & 106 and 181.31004(3). The Colorado Department of Corrections (CDOC) Administrative Regulation (AR) 70019 further mandates treatment, as does the Standards and Guidelines for the Assessment, Evaluation, Treatment and Behavioral Monitoring of Adult Sex Offenders issued by the Sex Offender Management Board. Moreover, successful treatment progression is required for parole. See: C.R.S § 181.31006(1)(a).
The Sex Offender Treatment and Management Program (SOTMP) consists of prephase basic mental health followed by Phases I and II of the core program. Under duress, Beebe signed his Phase I treatment contract on July 20, 2001. He was terminated from the program on May 15, 2002 ?without prior written notice of the reason for his termination, without an opportunity to be heard by a neutral fact-finder, and without an opportunity to present witnesses in his defense.?
Beebe?s termination was based on an incoming letter confiscated by the facility mailroom in which the correspondent, apparently for the first time, revealed that she was age 17. Beebe was not provided with a means to explain that he thought she was a college student between age 18 and 22. Mental Health would later claim Beebe?s termination was also based on a prohibition on corresponding with adults who have minor children; they claimed he was corresponding with adults in Texas prisons who had minor children.
Beebe filed a 42 U.S.C. § 1983 complaint alleging Fourteenth Amendment substantive and procedural due process violations. On the state?s motion for judgment on the pleadings, a magistrate judge recommended dismissal of the complaint after finding no liberty interest in the treatment program even if it was required for parole. Beebe objected.
On de novo review the District Court rejected the magistrate?s recommendation, finding that Beebe had stated a cognizable liberty interest claim in being retained in the statutorily-mandated treatment program and in the lack of procedures for his expulsion, questions of first impression in the Tenth Circuit. The Court found that Colorado had created a right by the use of mandatory language in state statutes that require treatment as part of the sentence, with the only discretion being in the type of treatment. See: Beebe v. Heil, 333 F.Supp.2d 1011 (D.Colo. 2004).
After judgment on the pleadings was denied, the parties moved for summary judgment. On February 14, 2006, the Court denied the CDOC?s summary judgment motion and, based on the 2004 published ruling cited above, granted Beebe summary judgment ?to the extent he has a liberty interest in continued treatment as a sex offender? under C.R.S § 181.31004(3).
Following a oneday bench trial, the Court ruled in Beebe?s favor on November 13, 2006, reaffirming Beebe?s liberty interest in receiving treatment, finding his right to procedural and substantive due process had been violated, and declaring AR 70019 unconstitutional in part.
The Court based its liberty interest finding on its statutory interpretation that participation in a sex offender treatment program was an absolute prerequisite for parole. The Court also found that out of 182 sex offenders incarcerated under the Lifetime Act who saw the parole board by September 30, 2005, only two had been paroled and both had completed treatment. Moreover, only two such prisoners were in Community Corrections. Meanwhile, the Denver Post reported that there were 472 prisoners held under the Lifetime Act during that same time period.
The proper test for a protected liberty interest, the Court said, is whether there was a ?change in conditions of confinement amounting to a grievous loss,? citing Wolff v. McDonnell, 418 U.S. 539 (1974). The Court held that dismissal from a statemandated treatment program required for parole eligibility constituted such a change that resulted in such a loss. Upon termination from treatment, Beebe went from eligible to ineligible for parole.
The Court noted that ?it strains credulity to believe that the parole board would parole a sex offender who had not received treatment in face of that authority and in light of the General Assembly?s intent in enacting the statutory scheme found in C.R.S. § 181.31001 (declaration that incarceration without treatment will present continued danger to the public when released).?
With a protected liberty interest established, the Court turned to what procedural due process is required. Beebe was told to leave the program and was given a notice nearly four months later. He was not allowed to explain the circumstances surrounding his correspondence. The Court ordered, at a minimum, written notice of the claimed violation no less than 24 hours before a hearing and a written statement of findings of fact regarding the evidence relied upon in reaching a decision.
Unfortunately, the Court ruled that holding an actual hearing would be dependent on the CDOC?s ?determination that such a hearing would not be unduly hazardous.?
The CDOC had argued that a hearing ?cannot be accommodated in a therapeutic setting? because it would involve a third party ?inexperienced and untrained in the dynamics of sex offenders,? and would violate confidentiality and jeopardize the therapeutic process. Rejecting this contention, the Court noted that the administrative grievance process advocated by the CDOC ends at Step III in which a nonCDOC employee, inexperienced and untrained in sex offender dynamics, answers the grievance under contract.
Using the deliberate indifference and ?shocks the conscience? test, the Court found the CDOC had violated Beebe?s substantive due process rights. The CDOC was deliberately indifferent when it ?purposefully, and with the opportunity to deliberate, terminated Beebe from sex offender treatment without the minimum protections afforded under procedural due process,? especially when others in similar circumstances were not terminated. The CDOC had from the time of Beebe?s removal from the treatment program on May 15, 2002 until its formal written notice on August 30, 2002 to do better, but failed to do so.
The Court held this arbitrary treatment, which constitutes deliberate indifference, ?shocks the contemporary conscience and is shocking to the conscience of this federal judge.? Quoting Sacramento v. Lewis, 523 U.S. 833 (1998), the Court stated, ?when such extended opportunities to do better are teamed with protracted failure even to care, indifference is truly shocking.?
Finally, the Court found AR 70019 unconstitutional to the extent that it does not allow for minimum due process protections for SOTMP termination. This declaration extends only to the failure to provide written notice and a statement of evidence relied upon. The Court declined to mandate presentation of documentary evidence and calling of witnesses at a hearing, as such hearings might be hazardous to institutional safety or correctional goals.
The Court ordered Beebe to be immediately reinstated in the treatment program and provided with due process until AR 70019, or a functional equivalent, can be revised and implemented. On December 19, 2006, the Court awarded Beebe?s attorneys, John B. Roesler and Kirsten L. Wander, $105,030 in fees and $925 in costs. See: Beebe v. Stommel, USDC, D CO, Case No. 02CV01993WYDBNB.
Colorado state prisoner Jeffrey Beebe was sentenced in 2001 to an indeterminate three years to life term under Colorado?s extremely harsh Sex Offender Lifetime Supervision Act (Lifetime Act), which mandates life sentences for certain enumerated sex offenses above class 5 felonies that occur on or after November 1, 1998. See: C.R.S § 181.31001 et seq.
Colorado law also mandates sex offender evaluation and treatment. See: C.R.S § §1611.7105 & 106 and 181.31004(3). The Colorado Department of Corrections (CDOC) Administrative Regulation (AR) 70019 further mandates treatment, as does the Standards and Guidelines for the Assessment, Evaluation, Treatment and Behavioral Monitoring of Adult Sex Offenders issued by the Sex Offender Management Board. Moreover, successful treatment progression is required for parole. See: C.R.S § 181.31006(1)(a).
The Sex Offender Treatment and Management Program (SOTMP) consists of prephase basic mental health followed by Phases I and II of the core program. Under duress, Beebe signed his Phase I treatment contract on July 20, 2001. He was terminated from the program on May 15, 2002 ?without prior written notice of the reason for his termination, without an opportunity to be heard by a neutral fact-finder, and without an opportunity to present witnesses in his defense.?
Beebe?s termination was based on an incoming letter confiscated by the facility mailroom in which the correspondent, apparently for the first time, revealed that she was age 17. Beebe was not provided with a means to explain that he thought she was a college student between age 18 and 22. Mental Health would later claim Beebe?s termination was also based on a prohibition on corresponding with adults who have minor children; they claimed he was corresponding with adults in Texas prisons who had minor children.
Beebe filed a 42 U.S.C. § 1983 complaint alleging Fourteenth Amendment substantive and procedural due process violations. On the state?s motion for judgment on the pleadings, a magistrate judge recommended dismissal of the complaint after finding no liberty interest in the treatment program even if it was required for parole. Beebe objected.
On de novo review the District Court rejected the magistrate?s recommendation, finding that Beebe had stated a cognizable liberty interest claim in being retained in the statutorily-mandated treatment program and in the lack of procedures for his expulsion, questions of first impression in the Tenth Circuit. The Court found that Colorado had created a right by the use of mandatory language in state statutes that require treatment as part of the sentence, with the only discretion being in the type of treatment. See: Beebe v. Heil, 333 F.Supp.2d 1011 (D.Colo. 2004).
After judgment on the pleadings was denied, the parties moved for summary judgment. On February 14, 2006, the Court denied the CDOC?s summary judgment motion and, based on the 2004 published ruling cited above, granted Beebe summary judgment ?to the extent he has a liberty interest in continued treatment as a sex offender? under C.R.S § 181.31004(3).
Following a oneday bench trial, the Court ruled in Beebe?s favor on November 13, 2006, reaffirming Beebe?s liberty interest in receiving treatment, finding his right to procedural and substantive due process had been violated, and declaring AR 70019 unconstitutional in part.
The Court based its liberty interest finding on its statutory interpretation that participation in a sex offender treatment program was an absolute prerequisite for parole. The Court also found that out of 182 sex offenders incarcerated under the Lifetime Act who saw the parole board by September 30, 2005, only two had been paroled and both had completed treatment. Moreover, only two such prisoners were in Community Corrections. Meanwhile, the Denver Post reported that there were 472 prisoners held under the Lifetime Act during that same time period.
The proper test for a protected liberty interest, the Court said, is whether there was a ?change in conditions of confinement amounting to a grievous loss,? citing Wolff v. McDonnell, 418 U.S. 539 (1974). The Court held that dismissal from a statemandated treatment program required for parole eligibility constituted such a change that resulted in such a loss. Upon termination from treatment, Beebe went from eligible to ineligible for parole.
The Court noted that ?it strains credulity to believe that the parole board would parole a sex offender who had not received treatment in face of that authority and in light of the General Assembly?s intent in enacting the statutory scheme found in C.R.S. § 181.31001 (declaration that incarceration without treatment will present continued danger to the public when released).?
With a protected liberty interest established, the Court turned to what procedural due process is required. Beebe was told to leave the program and was given a notice nearly four months later. He was not allowed to explain the circumstances surrounding his correspondence. The Court ordered, at a minimum, written notice of the claimed violation no less than 24 hours before a hearing and a written statement of findings of fact regarding the evidence relied upon in reaching a decision.
Unfortunately, the Court ruled that holding an actual hearing would be dependent on the CDOC?s ?determination that such a hearing would not be unduly hazardous.?
The CDOC had argued that a hearing ?cannot be accommodated in a therapeutic setting? because it would involve a third party ?inexperienced and untrained in the dynamics of sex offenders,? and would violate confidentiality and jeopardize the therapeutic process. Rejecting this contention, the Court noted that the administrative grievance process advocated by the CDOC ends at Step III in which a nonCDOC employee, inexperienced and untrained in sex offender dynamics, answers the grievance under contract.
Using the deliberate indifference and ?shocks the conscience? test, the Court found the CDOC had violated Beebe?s substantive due process rights. The CDOC was deliberately indifferent when it ?purposefully, and with the opportunity to deliberate, terminated Beebe from sex offender treatment without the minimum protections afforded under procedural due process,? especially when others in similar circumstances were not terminated. The CDOC had from the time of Beebe?s removal from the treatment program on May 15, 2002 until its formal written notice on August 30, 2002 to do better, but failed to do so.
The Court held this arbitrary treatment, which constitutes deliberate indifference, ?shocks the contemporary conscience and is shocking to the conscience of this federal judge.? Quoting Sacramento v. Lewis, 523 U.S. 833 (1998), the Court stated, ?when such extended opportunities to do better are teamed with protracted failure even to care, indifference is truly shocking.?
Finally, the Court found AR 70019 unconstitutional to the extent that it does not allow for minimum due process protections for SOTMP termination. This declaration extends only to the failure to provide written notice and a statement of evidence relied upon. The Court declined to mandate presentation of documentary evidence and calling of witnesses at a hearing, as such hearings might be hazardous to institutional safety or correctional goals.
The Court ordered Beebe to be immediately reinstated in the treatment program and provided with due process until AR 70019, or a functional equivalent, can be revised and implemented. On December 19, 2006, the Court awarded Beebe?s attorneys, John B. Roesler and Kirsten L. Wander, $105,030 in fees and $925 in costs. See: Beebe v. Stommel, USDC, D CO, Case No. 02CV01993WYDBNB.
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Related legal case
Beebe v. Stommel
| Year | 2006 |
|---|---|
| Cite | USDC, D CO, Case No. 02-CV-01993-WYD-BNB |
| Level | District Court |
| Conclusion | Bench Verdict |
| Attorney Fees | 105,030.00 |
| Injunction Status | Granted |