JUDGE WANTS TO REVIEW POLICY ON DETAINING PAROLEES

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
violations.

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
themselves.

"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.