Pubdate: Fri, 10 Aug 2001 Source: Ft. Worth Star-Telegram (TX) Copyright: 2001 Star-Telegram, Fort Worth, Texas Contact: http://www.star-telegram.com/ Details: http://www.mapinc.org/media/162 Author: By Max B. Baker 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. - --- MAP posted-by: Kirk