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Texas’ Parole Condition X Violates Due Process
Texas’ parole Condition X has come under scrutiny in a federal court case. On December 12, 2008, a U.S. magistrate judge issued a 30-page order granting partial summary judgment in favor of parolee David Brian Jennings, after concluding that the Texas Board of Pardons and Paroles had illegally imposed “conditions on his parole without providing him sufficient process.” The court granted declaratory and injunctive relief.
On August 28, 1979, at age 15, Jennings was convicted of kidnapping with the intent to facilitate indecency with an 8-year-old. Seven years later, as an adult, he was sentenced to 3 years on a forgery charge. In April 1989 Jennings pled guilty to debit card abuse for withdrawing $800 on his roommate’s debit card. Due to his past record the charge was enhanced to “habitual,” and Jennings was sentenced to 25 years in the Texas prison system. He was released on parole 16 years later on May 23, 2005.
In July 2003, the Texas Parole Division implemented a Policy and Operation Procedure (PD/POP) for Condition X, which “establishe[d] the procedures for sex offender special conditions, supervision guidelines, and sex offender treatment.” (PD/POP 3.6.2) [See: PLN, March 2009, p.46]. The court noted that according to PD/POP rules, “[i]f special condition X had not been imposed on an offender at the time of their release on parole, the policy requires that the supervising officer request its imposition.”
On June 14, 2005, an unidentified parole officer requested that Condition X be applied to Jennings’ parole supervision. This initial request was denied. However, two months later Jennings’ parole officer petitioned the board to impose Condition X. This time the request was granted.
Jennings filed suit pursuant to 42 U.S.C. § 1983, alleging denial of due process because he was subjected to Condition X restrictions without notice. However, in his suit Jennings attacked only three provisions of Condition X: 1) that he enroll in a sex offender treatment program; 2) that he obtain written permission from his parole officer before dating, marrying or having a platonic relationship with anyone with children 17 years old or younger; and 3) that he have written permission from his parole officer before being allowed to maintain or operate any computer equipment. In regard to the third requirement, even with permission Jennings had to agree to extensive invasive monitoring of his computer activity.
The defendants countered that a Fifth Circuit opinion required notice to a parolee that Condition X was being imposed only “[a]bsent a conviction of a sex offense,” citing Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004) [PLN, July 2006, p.27]. Since Jennings had been previously convicted of a sex offense (in 1979), the defendants argued he was not entitled to notice.
The district court rejected this argument and ruled that Jennings had a liberty interest in the imposition of Condition X. The court then addressed the three challenged Condition X restrictions.
While there was no question that Jennings’ sex offense at age 15 qualified him as a sex offender, the court centered its analysis around the recurring theme that each of the Condition X provisions constituted “a dramatic departure from his sentence.”
The district court cited Thompson v. Oklahoma, 108 S.Ct. 2687 (1988), which held that a 15-year-old cannot be held as culpable as an adult. The court also reasoned that under federal law, “eventually a conviction is so old that it is no longer appropriate to consider in certain situations.” Because Jennings’ two adult convictions were not sex-related, the court held that the imposition of Condition X, 26 years after his sex offense, constituted “a dramatic departure from his sentence.”
Further, the court found “the Fourteenth Amendment protects the right to personal activities ... [one of which] is the freedom to marry ... [and to engage in] consensual sexual relationships,” referencing Washington v. Glucksberg, 117 S.Ct. 2302 (1997) and Lawrence v. Texas, 123 S.Ct. 2472 (2003). To deprive Jennings of the right to enter into personal relationships based on his current conviction for debit card abuse “constitutes a dramatic departure from his sentence.”
Finally, the district court held that use of a computer had become so fundamental in the 21st century that to prohibit its use was unreasonable. “Given that Plaintiff has never used a computer to commit a crime, this condition is a dramatic departure from his sentence.”
The court emphasized more than once that its ruling did not affect Condition X restrictions specifically, only the fact that they were imposed without giving Jennings an opportunity to challenge their imposition. While the court granted Jennings injunctive relief from the three challenged Condition X restrictions, it declined to specify what exact measures the defendants should take to comply. See: Jennings v. Owens, 585 F.Supp.2d 881 (W.D. Tex. 2008).
On January 9, 2009, the district court denied the defendants’ motion to amend the judgment, in which they asked for 120 days to comply with the order, observing that “Defendants have not provided an analysis, reasoning or substantiation to support the request.” The court also denied a motion to stay the judgment pending resolution of an appeal to the Fifth Circuit. On January 29, 2009, the court awarded $38,338 in attorney fees and $12,243 in costs to Jennings’ counsel; however, the award of fees and costs was stayed pending an appeal by the defendants.
Two of the attorneys who represented Jennings have battled against Condition X for years. “I’m not at war trying to defend sex offenders. I’m at war trying to protect our Constitution,” said Bill Habern, who is recognized as one of the top parole attorneys in Texas.
A sex offender is given “...less due process than someone who is having their driver’s license suspended,” added attorney Richard Gladden. “And it seems to me that ... you start saying, ‘What’s more important – my driver’s license or not being able to live with my kids?”
U.S. District Court Judge Sam Sparks took issue with Condition X restrictions in a different suit. When told that parole board members spent 10 to 30 minutes reviewing each case, his response was, “It would certainly appear that if the voting members actually reviewed the files, ... the [process] would take substantially longer than 30 minutes.”
Texas Parole Board member Jose Aliseda, a former county judge, said recent federal court rulings “have caused us to examine our policy,” and the Board was trying “to make sure our policies meet constitutional muster.”
State courts, however, have been more receptive. In an October 15, 2008 ruling, the Texas Court of Criminal Appeals upheld the imposition of Condition X restrictions on a parolee who had been convicted of indecent exposure and assault more than 17 years earlier, who had received notice that the restrictions were being considered and did not contest them.
The parolee in that case had his parole revoked after he visited his father’s home – which was within 500 feet of a day care center – to take a shower. See: Ex parte Campbell, 267 S.W.3d 916 (Tex. Crim. App. 2008)
The justice system is not designed “to reintegrate [parolees] into society and be productive members of society. It’s set up for them to be roadblocked at every single turn,” remarked Mary Sue Molnar, co-founder of Texas Voices, a fast-growing organization for the reform of sex offender laws.
Even victims’ rights advocate Torie Camp observed that putting all sex offenders into one category “does a disservice to victims of sexual assault,” and makes sex offender restrictions less meaningful. As director of the Texas Association Against Sexual Assault, Camp favors an individualized approach instead of the current parole board practice of lumping all sex offenders together.
Jennings’ case is just one example of the unreasonable lengths taken by the Texas Board of Pardons and Paroles against parolees. And in a state that takes pride in locking up over 150,000 of its residents in state prisons and tens of thousands more in county jails, things are unlikely to change anytime soon.
Additional source: Dallas Morning News
On August 28, 1979, at age 15, Jennings was convicted of kidnapping with the intent to facilitate indecency with an 8-year-old. Seven years later, as an adult, he was sentenced to 3 years on a forgery charge. In April 1989 Jennings pled guilty to debit card abuse for withdrawing $800 on his roommate’s debit card. Due to his past record the charge was enhanced to “habitual,” and Jennings was sentenced to 25 years in the Texas prison system. He was released on parole 16 years later on May 23, 2005.
In July 2003, the Texas Parole Division implemented a Policy and Operation Procedure (PD/POP) for Condition X, which “establishe[d] the procedures for sex offender special conditions, supervision guidelines, and sex offender treatment.” (PD/POP 3.6.2) [See: PLN, March 2009, p.46]. The court noted that according to PD/POP rules, “[i]f special condition X had not been imposed on an offender at the time of their release on parole, the policy requires that the supervising officer request its imposition.”
On June 14, 2005, an unidentified parole officer requested that Condition X be applied to Jennings’ parole supervision. This initial request was denied. However, two months later Jennings’ parole officer petitioned the board to impose Condition X. This time the request was granted.
Jennings filed suit pursuant to 42 U.S.C. § 1983, alleging denial of due process because he was subjected to Condition X restrictions without notice. However, in his suit Jennings attacked only three provisions of Condition X: 1) that he enroll in a sex offender treatment program; 2) that he obtain written permission from his parole officer before dating, marrying or having a platonic relationship with anyone with children 17 years old or younger; and 3) that he have written permission from his parole officer before being allowed to maintain or operate any computer equipment. In regard to the third requirement, even with permission Jennings had to agree to extensive invasive monitoring of his computer activity.
The defendants countered that a Fifth Circuit opinion required notice to a parolee that Condition X was being imposed only “[a]bsent a conviction of a sex offense,” citing Coleman v. Dretke, 395 F.3d 216 (5th Cir. 2004) [PLN, July 2006, p.27]. Since Jennings had been previously convicted of a sex offense (in 1979), the defendants argued he was not entitled to notice.
The district court rejected this argument and ruled that Jennings had a liberty interest in the imposition of Condition X. The court then addressed the three challenged Condition X restrictions.
While there was no question that Jennings’ sex offense at age 15 qualified him as a sex offender, the court centered its analysis around the recurring theme that each of the Condition X provisions constituted “a dramatic departure from his sentence.”
The district court cited Thompson v. Oklahoma, 108 S.Ct. 2687 (1988), which held that a 15-year-old cannot be held as culpable as an adult. The court also reasoned that under federal law, “eventually a conviction is so old that it is no longer appropriate to consider in certain situations.” Because Jennings’ two adult convictions were not sex-related, the court held that the imposition of Condition X, 26 years after his sex offense, constituted “a dramatic departure from his sentence.”
Further, the court found “the Fourteenth Amendment protects the right to personal activities ... [one of which] is the freedom to marry ... [and to engage in] consensual sexual relationships,” referencing Washington v. Glucksberg, 117 S.Ct. 2302 (1997) and Lawrence v. Texas, 123 S.Ct. 2472 (2003). To deprive Jennings of the right to enter into personal relationships based on his current conviction for debit card abuse “constitutes a dramatic departure from his sentence.”
Finally, the district court held that use of a computer had become so fundamental in the 21st century that to prohibit its use was unreasonable. “Given that Plaintiff has never used a computer to commit a crime, this condition is a dramatic departure from his sentence.”
The court emphasized more than once that its ruling did not affect Condition X restrictions specifically, only the fact that they were imposed without giving Jennings an opportunity to challenge their imposition. While the court granted Jennings injunctive relief from the three challenged Condition X restrictions, it declined to specify what exact measures the defendants should take to comply. See: Jennings v. Owens, 585 F.Supp.2d 881 (W.D. Tex. 2008).
On January 9, 2009, the district court denied the defendants’ motion to amend the judgment, in which they asked for 120 days to comply with the order, observing that “Defendants have not provided an analysis, reasoning or substantiation to support the request.” The court also denied a motion to stay the judgment pending resolution of an appeal to the Fifth Circuit. On January 29, 2009, the court awarded $38,338 in attorney fees and $12,243 in costs to Jennings’ counsel; however, the award of fees and costs was stayed pending an appeal by the defendants.
Two of the attorneys who represented Jennings have battled against Condition X for years. “I’m not at war trying to defend sex offenders. I’m at war trying to protect our Constitution,” said Bill Habern, who is recognized as one of the top parole attorneys in Texas.
A sex offender is given “...less due process than someone who is having their driver’s license suspended,” added attorney Richard Gladden. “And it seems to me that ... you start saying, ‘What’s more important – my driver’s license or not being able to live with my kids?”
U.S. District Court Judge Sam Sparks took issue with Condition X restrictions in a different suit. When told that parole board members spent 10 to 30 minutes reviewing each case, his response was, “It would certainly appear that if the voting members actually reviewed the files, ... the [process] would take substantially longer than 30 minutes.”
Texas Parole Board member Jose Aliseda, a former county judge, said recent federal court rulings “have caused us to examine our policy,” and the Board was trying “to make sure our policies meet constitutional muster.”
State courts, however, have been more receptive. In an October 15, 2008 ruling, the Texas Court of Criminal Appeals upheld the imposition of Condition X restrictions on a parolee who had been convicted of indecent exposure and assault more than 17 years earlier, who had received notice that the restrictions were being considered and did not contest them.
The parolee in that case had his parole revoked after he visited his father’s home – which was within 500 feet of a day care center – to take a shower. See: Ex parte Campbell, 267 S.W.3d 916 (Tex. Crim. App. 2008)
The justice system is not designed “to reintegrate [parolees] into society and be productive members of society. It’s set up for them to be roadblocked at every single turn,” remarked Mary Sue Molnar, co-founder of Texas Voices, a fast-growing organization for the reform of sex offender laws.
Even victims’ rights advocate Torie Camp observed that putting all sex offenders into one category “does a disservice to victims of sexual assault,” and makes sex offender restrictions less meaningful. As director of the Texas Association Against Sexual Assault, Camp favors an individualized approach instead of the current parole board practice of lumping all sex offenders together.
Jennings’ case is just one example of the unreasonable lengths taken by the Texas Board of Pardons and Paroles against parolees. And in a state that takes pride in locking up over 150,000 of its residents in state prisons and tens of thousands more in county jails, things are unlikely to change anytime soon.
Additional source: Dallas Morning News
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Related legal cases
Jennings v. Owens
| Year | 2008 |
|---|---|
| Cite | 585 F.Supp.2d 881 (W.D. Tex. 2008) |
| Level | District Court |
| Conclusion | Bench Verdict |
| Attorney Fees | 38,338.00 |
| Injunction Status | Granted |
Ex parte Campbell
| Year | 2008 |
|---|---|
| Cite | 267 S.W.3d 916 (Tex. Crim. App. 2008) |
| Level | State Court of Appeals |
| Injunction Status | N/A |