On May 4, 2011, The Texas Court of Criminal Appeals published its opinion in Ex Parte Jonathan Evans. It is an important decision, and it was long overdue.
The CCA held, unanimously, that the Parole Board is no longer permitted to impose sex offender restrictions on parolees who were never convicted of any sex crimes, without first having an evidentiary hearing and allowing the parolee to receive some level of due process protection.
Although I completely agree with the Court’s holding, it is important to understand the issues from all sides of the debate on what the purpose and use of Special Condition X ought to be. Needless to say, “Special Condition X ” is quite a controversial topic.
A careful and honest analysis of the issues highlights the struggle between the need to be fair to people who have paid their debt to society for crimes they’ve committed in the past, and the very real need to protect the public from potentially horrible crimes that couldoccur in the future.
In order to understand what the hubub is all about, one first needs to understand a few things about how parole works. When a prisoner (TDCJ likes to call them “Offenders”) is given a favorable parole vote, the Texas Board of Pardons and Paroles (The Parole Board) will nearly always have special conditions that necessarily accompany the prisoner’s opportunity to leave prison behind, hopefully forever.
A common restriction might be that a person who was imprisoned for intoxication assault or DWI will be prohibited from operating a car during the duration of his parole. Thus, if you really want to get out of a prison, like nearly every prisoner surely does, wouldn’t you agree to just about anything the Parole Board will ask of you?
There’s really not a whole lot stopping the Parole Board from picking special conditions out of the sky if they really wanted to do this. The potential parolee might agree to anything and everything if it meant he could walk out of one of TDCJ’s 120+ “Units”. On a side note, I call them prisons, because “Unit” is just strange, and whoever dreamed it up thought that we’d all feel better if we didn’t have to call these places what they really are, prisons.
Fortunately, my experience has been that the special conditions selected by the Parole Board are usually logical and fair, given the circumstances of the crimes for which the individual under consideration has been previously convicted. Moreover, history teaches us that some people who have been in trouble with the law before will be in trouble again.
Therefore, I believe that the special conditions are almost always placed on a prospective parolee based on some rational nexus, or connection, between the prisoner’s past and the Parole Board’s desire to protect the public from danger and the potential risks of future criminal activity. However, Special Condition X is in a league all its own, and it must be used judiciously.
Special Condition X requires the parolee to do (or not do) many things, including the following:
1.Enroll in and participate in a treatment program for sex offenders (paid for by the parolee).
2. Not participate in any volunteer activities without prior written approval of their parole officer.
3. Not enroll in college, or any institution of higher learning, without the approval of the Parole Board.
4. Not view, possess, purchase, or subscribe to any photographs, literature, magazines, books, or visual media that depict sexually explicit images. (whatever that means).
5. Not go within 500 feet of anywhere where children commonly gather (even if a main road happens to go past such a facility, and even if you are the passenger of the car and the driver chooses his/her own route of travel).
6. Not date anyone with kids, or even be friends with people who have children under 17 years old.
7. Not own or use a computer (even as part of your job) without getting your parole officer’s written permission.
8. Not own a camera (even including the camera that comes included in a mobile phone)
9. Submit to a warrantless search of your home, car, person, etc. anytime anywhere, day or night.
10. Not live with a person under 17 years old, even if the person is your step child.
It is important to note that Special Condition X has been imposed, for years now, on people who were never convicted of a sex crime. In fact, some were never even charged with a sex crime.
Still, TDCJ’s Board of Pardons and Paroles has always elected to put these onerous restrictions on anyone they thought might have the potential to do something inappropriate of a sexual nature. Their reasoning was likely based on the idea that one who gets to be on parole is being given a privilege, and that since one has no right to parole in the first place, one could always simply elect to refuse to accept Special Condition X, and could simply choose to stay in prison. Hmmmmm.
As an attorney who represents people in connection with parole matters, I am quite relieved to see the CCA’s Opinion in Ex Parte Jonathan Evans. I also believe there will be several subtle changes in reaction to this holding, and not all of them will be good. However, Texas just became a little more fair, a little more logical, and the Board will still continue to do its very best to protect the public as it discharges its very important responsibilities.
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