SCOTUS declines cert. in sex offender classification case
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My absence from blogging has been long and mostly because I’ve been busy and haven’t been feeling too well. However, a couple of weeks ago, I noticed that SCOTUS had denied cert in Dretke v. Coleman [pdf], a Fifth Circuit case. The ruling in the Fifth Ciruit was:
The Texas Department of Criminal Justice is authorized by Texas law to
impose reasonable conditions on parole to serve the interests of protecting the
community and rehabilitating the parolee. When those conditions impact a liberty
interest of the parolee, they may be imposed only with justification. The Department
may condition Coleman’s parole on sex offender registration and therapy only if he is
determined to constitute a threat to society by reason of his lack of sexual control.
Absent a conviction of a sex offense, the Department must afford him an appropriate
hearing and find that he possesses this offensive characteristic before imposing such
conditions. This court was told at oral argument that evidence of Coleman’s lack of
sexual control exists. None appears in the record, however, and no contention is
made that Coleman has been afforded a hearing meeting the requirements of due
process.We therefore hold that the sex offender conditions placed on Coleman’s
parole are invalid, and we remand the cause to the district court for disposition
consistent with this opinion. The state is not precluded from further efforts to add
these same conditions to Coleman’s parole upon proper notice and consistent with
this opinion.
Reversed and remanded.
Essentially, that offenders who have not been convicted of a sex offense have a liberty interest created by the Due Process clause in freedom from sex offender classifications and conditions. The state parole department must afford a habeas petitioner an appropriate hearing before it can constitutionally impose sex offender parole conditions upon him. In light of SCOTUS’ refusal to address whether sex offender registration violation substantive due process in CT v. Doe, their denial of cert here is pretty significant.
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I had the privilege of representing Mr. Coleman before the Fifth Circuit in this case. I agree that the Supreme Court’s denial of cert. in this case is noteworthy. However, the State framed the cert-worthy issue as the purported circuit split on the difference, if any, between the AEDPA deference standard and the standard for determining whether qualified immunity applies, not the straight “merits” issue of whether someone who has not been convicted of a sex offense has a liberty interest in remaining free of sex-offender conditions. Clearly, if the Court had granted cert., they would have addressed the second issue in some way, but the state chose to try to fashion a circuit split argument on a subtler issue to try to get cert.
Dan, thank you for your comment!
Was there some thought that had the issue been framed on the “merits”, SCOTUS would not have considered it?
Certainly at this point, the 5th Circuit decision would be controlling.
I would like to think that the Supreme Court would not have considered taking cert. in this case no matter what because the Fifth Circuit got it right. I was surprised with the State’s approach, especially given the Supreme Court’s reservation of the issue in Doe, but I am not a Supreme Court practitioner and wonder whether the State concluded that a circuit split (although a weak one, in this case) was a better play than the merits.
In any event, I agree, the Fifth Circuit’s opinion is controlling.
A related follow up issue that eventually will have to be decided is the level of process afforded those not convicted of sex offenses before the imposition of sex offender conditions. Texas has a “paper hearing,” in which the parolee can submit a written statement, and no more, and then the Board considers whether to impose the condition. The Vitek Court approved of Morrissey, but Texas has apparently concluded (differently than the Tenth Circuit, I think) that Morrissey (or at least a live hearing) is not required.