Comments on: SCOTUS declines cert. in sex offender classification case http://apublicdefender.com/2005/10/17/scotus-declines-cert-in-sex-offender-classification-case/ Fri, 21 Nov 2008 14:21:58 +0000 http://wordpress.org/?v=2.6.3 By: Dan Laytin http://apublicdefender.com/2005/10/17/scotus-declines-cert-in-sex-offender-classification-case/#comment-256 Dan Laytin Fri, 18 Nov 2005 16:51:57 +0000 http://apublicdefender.com/2005/10/17/scotus-declines-cert-in-sex-offender-classification-case/#comment-256 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. 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.

]]> By: Gideon http://apublicdefender.com/2005/10/17/scotus-declines-cert-in-sex-offender-classification-case/#comment-255 Gideon Thu, 17 Nov 2005 08:55:33 +0000 http://apublicdefender.com/2005/10/17/scotus-declines-cert-in-sex-offender-classification-case/#comment-255 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. 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.

]]> By: Dan Laytin http://apublicdefender.com/2005/10/17/scotus-declines-cert-in-sex-offender-classification-case/#comment-254 Dan Laytin Wed, 16 Nov 2005 22:53:20 +0000 http://apublicdefender.com/2005/10/17/scotus-declines-cert-in-sex-offender-classification-case/#comment-254 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. 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.

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