Pubdate: Fri, 10 Aug 2001
Source: Ft. Worth Star-Telegram (TX)
Copyright: 2001 Star-Telegram, Fort Worth, Texas
Author:  By Max B. Baker


He Asks Why Some Don't Get Due Process

A Houston federal judge wants state officials to explain why they are 
locking up several thousand parolees who are accused of minor parole 
violations but are not allowed to defend themselves in court.

U.S. District Judge Lee Rosenthal gave the state a week to produce 
documents such as revocation warrants and minutes of meetings by the 
Texas Board of Pardons and Paroles as part of a review of the policy.

Civil rights attorneys originally sought a temporary restraining 
order to force state officials to stop sending parolees to facilities 
- - many of them drug treatment centers - before granting them a due 
process hearing.

Bill Habern, an attorney and advocate for prison overhaul, filed the 
lawsuit last week in federal court on behalf of nine individuals who 
were sent to a state-run drug-treatment facility for technical parole 

State officials contend that the parolees are not entitled to a court 
proceeding because they are not revoking their paroles, but simply 
modifying the conditions of their release after noticing violations.

But Habren said, "Those that are innocent aren't having a chance to prove it."

He said he recently had a case in Wichita Falls where a parolee was 
going to be sent away after an arrest. The parolee eventually was 
found not guilty and, during a due process hearing, the state allowed 
him to stay at home.

"We're not suing to get them out of prison; we want them to be 
allowed to tell their story," he said.

Attorney Yolanda Torres said it is fundamentally unfair to strip 
people of their freedom without giving them a chance to defend 

"It is a fundamental right not to be imprisoned without due process 
and the Supreme Court has stated it is," Torres said. "It is very 
clear cut."

Carl Reynolds, general counsel for the parole board, said if the 
state was "revoking their parole, they would be right. But we're 
not." The detained parolees are given a chance to explain their bad 
behavior, he said.

"What we are doing is less than what we could do, which is send them 
back to prison," Reynolds said. "But there is a difference between 
going to prison and going to a treatment facility."

State prison and parole officials have detained up to 5,000 people by 
modifying their paroles to include stays in substance abuse felony 
punishment and intermediate sanction facilities, Habern said.

Parolees are being detained not for committing new crimes, but for 
technical violations such as not reporting to a parole officer, 
falling behind on supervision fees or failing a urine test.

The state views this modification of their parole as a management 
tool; by putting them in treatment centers and other facilities, they 
can help them without resorting to parole revocation.

The parolees continue to earn time toward their discharge. They are 
also sent to these institutions for up to nine months. If parole is 
revoked, they would go to prison for an indeterminate time, possibly 
until the end of their sentence.

Parolees are given a chance to explain their situation, state 
officials said. But they are not given a formal due process hearing.

But Habern and Torres said one of their clients was detained after 
failing a drug test a year ago. Once forced into this modification 
program, some of them rebel and run the risk of having parole 
revoked, Torres said.

And what makes the state's actions even more "duplicitous" is that 
the parole board's own legal counsel in 1989 advised the board that 
"a special condition may not be used" to reimprison those who have 
been released, the suit says.

In that memo, a parole board attorney told board members that because 
a warrant must be issued to hold the parolee, a due process hearing 
must be held or the accused must voluntarily waive that right.

"It is de facto revocation. It is doing with the right hand what you 
can't do with the left," Habern said.

State Sen. John Whitmire, D-Houston, unaware of Habern's lawsuit, was 
reluctant to criticize the parole board. Last year, he rebuked the 
board for not freeing nonviolent inmates who exhibit good behavior 
behind bars.

Paroles were being revoked because the parolees forgot to tell their 
parole officer they were briefly leaving town, or for not having 
automobile liability insurance, Whitmire said.

"We were filling our prisons with technical violators," he said.

But since making those initial accusations, Whitmire has been led to 
believe that parole officers were being more conscientious about 
locking up someone for a technical mistake.

"If someone deserves to go back, we're all for it. But the bottom 
line is that we ought to hear from both sides," Whitmire said.
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