A decision handed down by the United States Court of Appeals for the Fifth Circuit resulted in a process where an offender who does not have a current or previous conviction for a sex related offense can challenge the Parole Division and the Parole Board for requiring them to be supervised as if they had such a conviction.
When a parolee or inmate has, in his criminal or arrest history, instances or evidence of sexual misconduct, the Parole Division of TDCJ can ask the Board of Pardons and Paroles to impose sex offender conditions (Condition X) upon that parolee. This condition may be imposed on persons who have no sex offense conviction. The components of Condition X include:
- Child safety zones
- No internet access
- No possession of a computer
- No contact with minors
- Possession of a camera
- And more…
The Parole Division, upon a review of a file, may ask the Board to order the parolee to submit to an evaluation which includes a polygraph and an evaluation with a sex offender counselor. The offender is not given the results of the evaluation. He is given a month, after his notice from the Division, to respond to the proposed imposition of Condition X.
This system is constitutionally flawed. It does not:
- Allow for the full disclosure of evidence
- Allow for representation by an attorney
- Allow for the confrontation and cross-examination of witnesses
- Allow for presentation of favorable witnesses
- Allow parolee or his counsel to be present during the Board’s deliberations
- Include written findings of fact used by the Board as the basis for their decision
*Coleman v. Dretke was a case that was decided on December 21, 2004. Tony Coleman had never been convicted of a sex crime. He was required by the Board to comply with sex offender conditions.
The Federal Court of Appeals for the Fifth Circuit held that:
Sex offender conditions may only be placed on persons who are determined to “constitute a threat to society by reason of his lack of sexual control,” and, The Department must hold an appropriate hearing and find that the person possesses this offensive characteristic before imposing such conditions. In response to this decision, the Parole Division and the Board devised the most minimal form of notice and hearing that they could draft. The offender was furnished with a short declaration that information was being submitted to the Board requesting that the offender be placed on a sex offender supervision caseload. The offender was given 30 days to submit whatever they wanted for the Board to consider.
However, the offender was never provided with the specific documents or information upon which the Board was going to base their decision, thereby depriving the offender of any meaningful opportunity to examine or to rebut the allegations. No hearing was ever provided. The offender could not appear before the Board; they could not present witnesses or cross examine the hearsay documents provided by the Department. The Board never had to issue any written findings or conclusions to support their decision to require the offender to comply with sex offender conditions.
The “Coleman Review,” as currently performed does not follow the simple language of the order shown above. When you look at the failure to follow the Court’s order combined with the Constitutional flaws, the only conclusion that can be reached is that the process is a sham.