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Corrections Law for Jails, Prisons and Detention Facilities
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Sexual Offender Programs & Notification
See also: Therapeutic Programs
New York prisoners who were civilly committed for being sexually violent predators after their criminal sentences expired under a new initiative claimed that their due process rights were violated and that they were not given an opportunity for a hearing or notice before their commitment began. A federal appeals court upheld the denial of qualified immunity for the defendant officials. The general principle that due process requires a pre-deprivation hearing absent an immediate danger to society was well established. Bailey v. Pataki, #10-2563, 2013 U.S. App. Lexis 3200 (2nd Cir.).
An Indiana state statute that broadly prohibited most registered sex offenders from using instant messaging services, social media sites and chat programs violated their First Amendment rights. While the state justifiably wished to protect children from inappropriate sexual communication, and the law was content neutral, the law placed a burden on more speech than was necessary to achieve that purpose. The court found that a sex offender's use of social media was not dangerous as long as they did not engage in improper communication with minors. Such communication was a tiny subset of the "universe of social media." The state could have, without substantial diffioculty, more precisely targeted the evil it wanted to prevent. Doe v. Prosecutor, Marion County, #12-2512, 2013 U.S. App. Lexis 1528 (7th Cir.).
A federal trial court has struck down a Nebraska state law barring registered sex offenders from using the Internet for most purposes, including social media. The court said that by severely limiting "even benign" uses of the Internet, the law raised First Amendment, due process, Fourth Amendment and ex post facto issues. The law, the judge found, did not leave open ample alternative channels for communication of information. A portion of the statute that applied to those registered as sex offenders but who were not on probation, parole, or court monitored supervision violated the Fourth Amendment. The court said the law wrongly bars offenders "from using an enormous portion of the Internet to engage inexpressive activity." and "potentially restricts the targeted offenders from communicating with hundreds of millions and perhaps billions of adults and their companies despite the fact that the communication has nothing whatsoever to do with minors." Further, the law "is not narrowly tailored to target those offenders who pose a factually based risk to children through the use or threatened use of the banned sites or services. The risk posited by the statute is far too speculative when judged against the First Amendment." Doe v. State of Nebraska, #8:09CV456, 2012 U.S. Dist. Lexis 148770 (D. Neb).
A man convicted of attempted sexual abuse of an unconscious 16-year-old intoxicated girl was ordered, as a special condition of his supervised release, on probation not to reside with, or be in the company of, any child under age 18, including his own daughters, and not to socialize with or date anyone with such children, including his own fiancée. A federal appeals court vacated that condition, ordering further proceedings. The fundamental right to associate with one's family is a particularly significant liberty interest and the condition was imposed without making any explicit findings supported by evidence that the condition was necessary for deterrence, protection of the public and rehabilitation, and were not broader than necessary. As there was no evidence in the record supporting the need for such restrictions, the special condition at issue could not be reimposed on remand. The court below could consider whether it was necessary to impose similarly but more narrow restrictions. U.S. v. Wolf Child, #11-30241, 699 F.3d 1082 (9th Cir. 2012).
Two California prisoners were kept confined beyond their scheduled dates of release for the purpose of completing an evaluation of whether they should be classified as sexually violent predators and therefore civilly committed. In both cases, the parole board had issued 45-day parole holds. The California Supreme Court found that the definition of what a "good cause" was for holding a prisoner beyond their sentence, contained in a state regulation, was invalid, but the parole board's reliance on it was excusable since no prior court decision had invalidated it. The board's action was excusable as a good faith mistake of law. In re Lucas, #S181788, 53 Cal. 4th 839, 137 Cal. Rptr. 3d 595, 269 P.3d 1160 (2012).
An Indiana "Sex and Violent Offender Registry," which was accessible to the public via the Internet, was challenged in court. The fact that there was absolutely no process provided whereby offenders not incarcerated could challenge the accuracy of the information or their placement on the registry violated due process. The appeals court was also concerned that the policy allowing incarcerated offenders to appeal their placement on the registry or the accuracy of the information did not require officials to actually review a registrant's complaint. State judicial post-deprivation remedies cited by the defendants were insufficient, as placement on a sex offender registry was stigmatizing, and the erroneous labeling of an individual as a sexually violent predator was "further stigmatizing" to a person's reputation. Schepers v. Commissioner, Indiana Department of Correction, #11–3834, 691 F.3d 909 (7th Cir.).
Persons civilly committed to a state sex offender program failed to show that their rights were violated by the use of restraints during transport, or unclothed visual body searches. The searches were justified by institutional security concerns, and the policy of restraining sex offenders during transport was a valid exercise of professional judgment. There was no evidence that the defendants were deliberately indifferent to the plaintiffs' health, safety, and sanitation concerns. There was also no showing that the alleged improper opening of their legal mail interfered with their access to the court or that monitoring their phone calls was not justified by security concerns. Beaulieu v. Ludeman, #11–1845, 690 F.3d 1017 (8th Cir.)
Prisoners convicted of sex crimes were kept incarcerated long after their sentences ended, remaining in state custody as sexually violent civil detainees. They claimed that their civil rights were violated because they were denied the ability to have face to face social opportunities with civil detainees in other pods of their facility and because they were not allowed to contact other civilly committed detainees using the facility's own internal mail system, instead being required to use the U.S. mail for that purpose. The limits on direct socialization were justified as a security measure. Due process did not require input from health professionals before restrictions were put on the in-person association opportunities of the detainees. There was no violation of First Amendment rights in requiring the plaintiffs to use the U.S. mail rather than the facility's internal mail system to communicate with other civil detainees. Lane v. Williams, #11-3373, 2012 U.S. App. Lexis 17922 (7th Cir.).
In three consolidated appeals by juveniles who had pled guilty to aggravated sexual abuse of children, a federal appeals court rejected their claims objecting to conditions of probation or supervision requiring them to register under the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. Chapter 109. Applying the registration requirements to juveniles does not violate equal protection of law, procedural or substantive due process, constitute cruel and unusual punishment, or violate the right against self-incrimination. Congress intentionally exempted the registration of juvenile sex offenders from the confidentiality provisions of the Federal Juvenile Delinquency Act (FJDA), 18 U.S.C. Sec 5031 et seq. U.S. v. Juvenile Male, #09-30330, 670 F.3d 999 (9th Cir. 2012).
A man who completed a sentence for sexually abusing his minor daughter was kept incarcerated for an additional 375 days while the county sought to find an available place where he would be allowed to live as a registered sex offender. Rejecting a claim for false imprisonment under these circumstances, the court found that his claim was barred by the principles stated in Heck v. Humphrey, #93-6188, 512 U.S. 477 (1994), because his incarceration was not reversed, expunged, invalidated, or otherwise impugned by an earlier proceeding. A state appeals court decision remanding his habeas claim to the trial court did not satisfy the Heck requirements. Marlowe v. Fabian, #11–2748, 2012 U.S. App. Lexis 7888 (8th Cir.).
Nevada's retroactive application of heightened sex offender registration and notification requirements were constitutionally permissible, and were not shown to violate the due process, double jeopardy, contract, or ex post facto clauses of the Constitution. The appeals court rejected the argument that the change violated the terms of plea bargain contracts entered into prior to its enactment. The state had agreed not to retroactively enforce harsher restrictions on residency and movement, so the lawsuit did not validly challenge them. American Civil Liberties Union of Nevada v. Masto, #08-17471, 670 F.3d 1046 (9th Cir. 2012).
Cutbacks imposed for budgetary reasons on a treatment program for sexually violent predators did not violate an institutionalized offender's substantive due process rights. He was placed in the institution until his condition sufficiently changes and it is safe for him to be released, and the cutbacks reduced the amount of treatment he received. Sex offenders do not have a fundamental constitutional right to treatment. Confining him and his fellow offenders to a restriction table for the entire time period from early morning until late evening except for meals was not "overly restrictive." Strutton v. Meade, #10–2029, 2012 U.S. App. Lexis 2117 (8th Cir.).
A class of persons civilly committed to a state hospital as sexually violent predators filed a federal civil rights lawsuit against supervisory officials challenging the conditions of their confinement, including alleged unreasonable searches and seizures, use of unreasonable force and physical restraints, and unlawful retaliation. The appeals court ruled that the claims against the supervisors individually for damages failed because the complaint was based on "conclusory allegations and generalities" without any allegation of the specific wrongdoing by each defendant. This entitled them to qualified immunity. The court ruled, however, that the lawsuit could proceed on claims for injunctive and declaratory relief. Hydrick v. Hunter, #03-56712, 2012 U.S. App. Lexis 628 (9th Cir.).
A sex offender, arrested for failing to report his new address, was attacked in the county jail's protective custody pod. He failed to show that the prisoner who assaulted him was even aware that he was a sex offender, undercutting his theory that the jail ignored the risk that he would be attacked because of his sex offender status. He also failed to show that another prisoner attacked by his assailant was a sex offender. Holden v. Hirner, #10-3656, 2011 U.S. App. Lexis 23953 (8th Cir.).
A man pled guilty to charges of false imprisonment and was placed on probation and released from custody. His probation officer required him to register as a sex offender and be placed in a sex offender probation unit. This was based on the probation officer's mistaken belief that the man's victim had been a minor. He sued, and got his name removed from the sex offender registry and himself from the sex offender probation unit. The plaintiff stated a valid claim against the probation officer for violation of his civil rights. The defamatory harm of being wrongly placed on sex offender status without procedural due process satisfied a "stigma plus" requirement for civil liability for such actions. The probation officer was not entitled to qualified immunity on the procedural due process claim, but substantive due process and equal protection claims were properly rejected. Claims for supervisory liability against the Secretary of the state Department of Corrections were rejected on the basis of qualified immunity, since there was no showing that he was personally involved in the action or that the probation officer acted on the basis of any policy he was responsible for. Brown v. Montoya, #10-2269, 2011 U.S. App. Lexis 22533 (10th Cir.).
A pretrial detainee under an Illinois Sexually Violent Person Act claimed that his constitutional privacy rights and rights under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. No. 104-191, 110 Stat. 1936 (1996), were violated by the "stigmatizing effects" of the stamp that the facility affixes to his outgoing mail, which reads "sexually violent person treatment center." Rejecting this claim, a federal appeals court ruled that the prisoner's claim was essentially for defamation, and that the prisoner's "interest in his reputation, by itself, is not protected by the Fourteenth Amendment." As to any claim under HIPAA, the trial court correctly found that the statute does not provide for a private right of action. Carpenter v. Phillips, #10-3176, 2011 U.S. App. Lexis 9417 (Unpub. 7th Cir.).
A prisoner classified as a sex offender was denied a number of issues of subscription music publications such as Rolling Stone, Maxim, Blender, and Spin, based on the presence of photos of females thought to be sexually oriented, in violation of restrictions on the types of materials he could receive. He failed to show how such restrictions violated his First Amendment rights, and the defendants were entitled to qualified immunity. The prisoner was allowed numerous issues of such publications, and only those containing materials believed to be adverse to his rehabilitation as a sex offender were withheld. Frazier v. Ortiz, #10-1133, 2011 U.S. App. Lexis 6381 (Unpub. 10th Cir.).
A man civilly committed in Illinois as a sexually dangerous person failed to show that facility staff members acted with reckless disregard to the danger of an attack on him by his cellmate or that they treated him, as a black man, differently than similarly situated white detainees. Young v. Monahan, #09-3401, 2011 U.S. App. Lexis 4692 (7th Cir.).
A prisoner serving a life sentence without possibility of parole for first-degree murder of a woman challenged his classification as a sex offender and a recommendation that he be enrolled in a sex offender treatment program. He had never been charged with or convicted of any sexual offense. A federal appeals court held that, under these circumstances, the prisoner was entitled to due process before Pennsylvania classifies him as a sex offender, since such classification is highly stigmatizing, reinstating his procedural due process claim. Renchenski v. Williams, #07-3530, 2010 U.S. App. Lexis 20428 (3rd Cir.).
A former civil detainee at a state hospital, detained there under California's Sexually Violent Dangerous Predator Act, appealed from the dismissal of his federal civil rights and state law lawsuit challenging a decision by hospital authorities denying him visits from his minor nieces and nephews. Upholding the dismissal, a federal appeals court noted that the denial of visitation rights was because of a policy barring visits from minor children within the age and gender profiles of a detainee's former victims. This policy, the court found, serves a legitimate, non-punitive governmental interest. Force v. Hunter, #09-56294, 2010 U.S. App. Lexis 20773 (Unpub. 9th Cir.).
A prisoner convicted of a murder in which there was sexual trauma to the victim claimed that forcing him to participate in a sex offender therapy program violated his due process rights, as he had never been convicted of a sex offense. Reversing summary judgment for the defendants on this claim, a federal appeals court found that, because a sex offender label was "severely stigmatizing," and participation in such therapy was not a condition imposed by his sentence, compelled treatment constituted a loss of liberty, so that he was entitled to minimum due process on the issue. Further proceedings were ordered on the due process claim, while self-incrimination and equal protection claims were rejected. Renchenski v. Piazza, #07-3530, 2010 U.S. App. Lexis 20428 (3rd Cir.).
A Colorado state prisoner claimed that prison officials violated his federal civil rights by classifying him as a sex offender and by failing to provide him with a safe environment in which to participate in sex offender treatment. Rejecting these claims, a federal appeals court found that there is no federal due process right to appeal a sex offender classification in a prison administrative hearing. While the prisoner did show that he was exposed to a serious risk of harm in attending sex offender treatment, he failed to show that correctional employees actually knew of this risk or refused to provide the treatment in a safe environment. Murphy v. Colorado Dept. of Corrections, #09-1443, 2010 U.S. App. Lexis 11418 (Unpub. 10th Cir.).
A man currently residing in Illinois filed a federal civil rights lawsuit challenging the state's life-long sex offender registration requirement, as applied to him because of his 2003 guilty plea to a misdemeanor offense of non-consensual sexual contact in New York. He had been assured, as part of the New York plea negotiations, that he would not be required to register as a sex offender. His lawsuit was properly dismissed, as the New York court order was silent as to whether he would be required to register as a sex offender in any other state, and therefore there was no issue of Illinois failing to give "full faith and credit" to the New York court's order. Even if there had been, the court stated, New York lacks the power to dictate the means by which another state can choose to protect the public. Rosin v. Monken, #08-4132, 599 F.3d 574 (7th Cir. 2010).
A prisoner served sixteen years for crimes of forcible rape, forcible oral copulation, and kidnapping for the purpose of committing rape. He was then sent to a state hospital for possible civil commitment. He sued state officials and psychologists for violation of his constitutional right to privacy in connection with their disclosure of his prison treatment records. Rejecting these claims, a federal appeals court found that a traditional Fourth Amendment right to privacy was "fundamentally incompatible" with the continual and close scrutiny of prisoners and their cells required for security reasons. Prisoners have no legitimate expectation of privacy in their prison treatment records when there is a legitimate penological interest in access to them. Access to such records is needed to protect other inmates and staff members from violence and communicable diseases, and to manage rehabilitation efforts. Whatever remaining constitutional right to privacy the prisoner may have had in his medical records, the California state law providing for a process for the civil commitment of sexually violent predators fell outside of it. Seaton v. Mayberg, #05-56894, 2010 U.S. App. Lexis 13335 (9th Cir.).
The U.S. Supreme Court rejected claims that Congress exceeded its constitutional authority in enacting 18 U.S.C. Sec. 4248, providing for the civil commitment of sexually dangerous federal prisoners beyond the date that they would otherwise be released. Congress had such authority under the "necessary and proper" clause of the Constitution, and Congress has long been involved in the delivery of mental health care to federal prisoners. The statute was supported by sound reasons, particularly the need to protect the community from the danger such prisoners may pose. The Court rejected arguments that the statute invaded the province of state sovereignty in violation of the Tenth Amendment, particularly as, under the statute, states may assert their authority on such prisoners domiciled or tried within their jurisdiction if they wish to do so, which would result in the immediate transfer of the prisoner to state custody. The Court also found that the legislation was narrow in scope, and that its ruling did not confer on Congress a general police power, which continues to remain with the states. The Court stated that it was not deciding any claim that the law violates equal protection or substantive or procedural due process, claims that the plaintiffs "are free to pursue" on remand. U.S. v. Comstock, #08–1224, 2010 U.S. Lexis 3879.
A Texas parolee, who has never been convicted of a sex offense, claimed that his due process rights were violated when sex offender conditions were imposed on his mandatory supervision, including registration as a sex offender and participation in sex offender therapy. He was convicted of the murder of a nine-year-old girl and sentenced to thirty-years imprisonment. The parole board imposed sex offender conditions, believing that the prisoner had sexually assaulted the girl he murdered, but it was unclear from the record how they determined this. Because of the conditions imposed on him, he was allegedly unable to obtain employment or arrange for a residence, resulting in him remaining in custody. A federal appeals court found that the prisoner was denied due process as a defendant's parole may only be conditioned on sex offender registration and therapy, in the absence of conviction for a sex offense, if he is given a due process hearing which determines that he poses a threat to society because of his lack of sexual control. In this case, while the prisoner received notice that the board was considering imposing sex offender restrictions on him, and was told that he could submit a statement in opposition, he was not allowed to review the evidence against him being relied on, and was therefore unable to correct or challenge any misinformation. He was also not allowed to appear before the board, preventing him from presenting any mitigating or clarifying evidence. He was also entitled to confront and cross-examine witnesses, absent good cause shown why this right should not be granted, and a written statement as to the evidence relied on and the reasons for the decision. Meza v. Livingston, #09-50367, 2010 U.S. App. Lexis 10321 (5th Cir.).
Officials at a treatment center for sex offenders were properly denied summary judgment in a lawsuit claiming that the were deliberately indifferent to the risk that he would be assaulted by another offender. He adequately alleged that it was "readily apparent" that placing him in a room with another sex offender who then assaulted him subjected him to an objectively serious risk of harm. There were also sufficient facts from which a jury could find that a defendant acted with deliberate indifference to a serious medical need by failing to provide him with prescribed psychological treatment. Nelson v. Shuffman, #09-2225, 603 F.3d 439 (8th Cir. 2009).
A sex offender claimed that prison officials discriminated against him by denying him a job in a prison program. He attempted to assert a "class of one" equal protection program, arguing that other sex offenders were granted jobs in the same program he was rejected for. Granting summary judgment for defendant officials, a federal court found that, since the plaintiff was not a member of any protected class, the defendants only needed to show that there was a rational basis for their treatment of him. There clearly was a rational basis for the decision, since the program at issue placed prisoners in a minimum security facility, and the plaintiff had a history of disciplinary problems raising security concerns. The fact that this reasoning was not explained to the prisoner when he was rejected for the job did not alter the result. Unruh v. Moore, #08-40750, 2009 U.S. App. Lexis 10315 (Unpub. 5th Cir.).
A prisoner failed to show that his classification as a sex offender violated his due process rights. While the court stated that in some cases misclassification as a sex offender may violate due process if there is "stigma plus," (a "stigmatizing statement plus a deprivation of a tangible interest"), in this case the prisoner failed to establish even the threshold requirement of a reputation-tarnishing statement that was false. Additionally, under existing regulations, officials are not prohibited from considering "acquitted conduct" while assigning a needs score to determine the need for treatment as a sexual offender. The prisoner's convictions arose from acts he committed against a sixteen-year-old girl, with whom he had a sexual relationship, when he was twenty-nine years old. He was convicted of various violent acts, but acquitted of sexual assault. Burgos-Vega v. Lantz, #08-4748, 2010 U.S. App. Lexis 4261 (2nd Cir.).
Congress did not have authority, under the Commerce Clause of the Constitution, U.S. Const. art. I, § 8, cl. 3, or the Necessary and Proper Clause, U.S. Const. art. I, § 8, to pass 18 U.S.C.S. § 4248, under which the plaintiff former federal inmates were to be subject to civil commitments as sexually dangerous persons. The statute did not regulate interstate commerce and if upheld, would undermine the "historic distinction" between federal authority and state authority. The plaintiffs were therefore granted dismissal of the cases seeking their civil commitments. U.S.A. v. Swarm, Civ. #07-12061, 2009 U.S. Dist. Lexis 52550 (D. Mass.).
A prisoner classified as a sex offender after he was convicted of burglary claimed that his classification was improper and that he was improperly denied parole because he refused to participate in a sex offender treatment program. The court found that the prisoner had a protected liberty interest in parole under the West Virginia state constitution, and there was a genuine issue of fact as to whether the treatment program he was asked to complete was severe enough to exceed his sentence. He presented a viable claim as to whether prison officials failed to correct errors they had caused in his records. Gilmore v. Bostic, #2:08-cv -326, 2009 U.S. Dist. Lexis 25682 (S.D.W.Va.).
Overturning a federal trial court's decision to the contrary, a federal appeals court has held that the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. § 16913, requiring sex offender registration, (and punishment, under 18 U.S.C. § 2250(a), for failure to register) is constitutional, and within the power of Congress under the Commerce Clause. U.S. v. Powers, #08-12764, 2009 U.S. App. Lexis 6592 (11th Cir.).
A number of persons who committed or attempted kidnapping or unlawful confinement offenses involving children, and who were not the child victims' parents, challenged the requirement that they register as sex offenders under New York state law, claiming that this was a misleading label, as they had not engaged in sexual abuse. The highest court in New York rejected these arguments, holding that the state legislature could rationally conclude that, in the "large majority" of instances where someone kidnapped or unlawfully imprisoned someone else's children, the victims were sexually molested or in danger of such molestation, and therefore could direct that such offenders be conclusively be classified as sexual offenders, without violating any constitutional right. People v. Knox, No. 9, 2009 N.Y. Lexis 16.
Restrictions on the visitation rights of a convicted sex offender did not violate his due process, equal protection, or Eighth Amendment rights. His daughter and his niece were removed from his visitor's list once on the recommendation of a prison social worker who believed that he threatened these children's safety, but they were restored to his visitor's list when he agreed to enter a sex offender's treatment program. They were both again barred from visiting when the prisoner subsequently admitted to having raped two children. The appeals court found this visitation policy rationally related to legitimate penological interests, and also noted that the plaintiff prisoner failed to show that other similarly situated prisoners were allowed visits with children. Stojanovic v. Humphreys, No. 08-1827, 2009 U.S. App. Lexis 2169 (Unpub. 7th Cir.).
Prisoner dismissed from participation in a sex offender treatment program without a hearing, allegedly resulting in the denial of good time credits, failed to show that he was deprived of due process rights. West v. Olin, No. 08-1168, 2008 U.S. App. Lexis 26764 (10th Cir.).
Most of the conditions of confinement challenged by Wisconsin inmates civilly committed as "sexually dangerous" were justified on the basis of security, including restrictions on visitors, leaving the facility, phone call monitoring, inspection of mail, property, and the inmates' persons, requiring restraints during transport, and mandating the wearing of institutional clothes. Walker v. Hayden, No. 08-2628, 2008 U.S. App. Lexis 25014 (Unpub. 7th Cir.).
The fact that a Washington state law provides the possibility of an early release of convicted sex offenders into community custody did not indicate that such offenders had a constitutionally protected liberty interest in such early release. Carver v. Lehman, No. 06-35176, 2008 U.S. App. Lexis 25822 (9th Cir.).
A federal law, 18 U.S.C. Sec. 4246, 18 U.S.C. section 4248, which states that the government may subject current and former federal prisoners certified by the Attorney General as sexually dangerous to civil commitment is unconstitutional, as it exceeds the powers of Congress. The federal government may not constitutionally confine persons whose "dangerousness" does not violate any federal law. U.S. v. Comstock, No. 07-7671, 2009 U.S. App. Lexis 185 (4th Cir.).
A policy barring committed sex offenders from having access to sexual material relating to children did not violate their First Amendment rights. Possession of such material would undermine the treatment being provided to the plaintiff, who had been convicted of crimes against children. Stewart v. Richards, Case No. C08-5275, 2008 U.S. Dist. Lexis 83586 (W.D. Wash.).
A provision of the state law pertaining to parolees held or detained for proceedings to declare them sexually violent predators is void to the extent that it would bar the payment to them of a $200 release allowance otherwise authorized to be paid to all prisoners upon their release. Sabatasso v. Superior Court of Orange County, No. G039906, 2008 Cal. App. Lexis 1615,167 Cal. App. 4th 791; 84 Cal. Rptr. 3d 447 (Cal. App. 4th Dist.).
The state of Washington, in limiting the Department of Correction's discretion to deny release plans for prisoners, and in requiring that any rejection of such a plan be based on specified criteria, created a constitutionally protected due process liberty interest in early release into community custody. The denial of a sex offender's release plan, under a DOC policy which provided for the automatic denial of release plans of those deemed to be violent sex offenders, combined with the "complete absence" of procedures for challenging such denials, violated due process. That right was not, however, clearly established, so that the Secretary of the DOC was entitled to qualified immunity from liability. Carver v. Lehman, No. 06-35176, 2008 U.S. App. Lexis 12323 (9th Cir.).
Convicted sex offender civilly committed to a special treatment unit under a New Jersey Sexually Violent Predators Act failed to show a violation of his Fifth Amendment constitutional right against self-incrimination by the requirement that he disclose, during the therapy, past criminal sexual acts he had committed, even if he suffered penalties, such as the withholding of certain privileges and placement in "treatment refusal status" when he refused to make such disclosures. The court further held that, even if the plaintiff had a right to remain silent about such past crimes, which was not certain, any such right was not clearly established, so that the defendants would be entitled, in any event, to qualified immunity on his Fifth and First Amendment claims. Aruanno v. Spagnuolo, No. 07-4276, 2008 U.S. App. Lexis 15123 (Unpub. 3rd Cir.).
When a prisoner's criminal conviction, which was the basis of his custody, has been overturned, and he has not been retried and reconvicted, civil commitment proceedings under the California Sexually Violent Predator (SVP) Act are not available. In re Smith, No. 14-5959, 2008 Cal. Lexis 3548.
Requirement that Texas prisoner register as a sex offender did not violate his double jeopardy, ex post facto (no retroactive enhancement of punishment), due process, or Eighth Amendment rights. Additionally, since he was currently incarcerated for failing to register, he could not pursue a federal civil rights lawsuit challenging the registration requirement until the incarceration had been reversed or declared invalid, as an award in the lawsuit would imply the invalidity of his current conviction. Hall v. Attorney General of Texas, No. 07-40157, 2008 U.S. App. Lexis 3595 (5th Cir.).
Sex offender's objection to the application of a mental health category to him without "due process of law" rejected, as no violation of any constitutionally protected liberty interest was involved, since the categorization did not concern a hospital placement. Classification as a sexual offender was justified by his past convictions of three counts of second-degree criminal sexual conduct and one count of first-degree criminal sexual conduct. Disability discrimination claims under the Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12131 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794 were rejected because the definition of "disability" in those statutes specifically excludes "sexual behavior disorders." Rice v. Mich. Dept. of Corrections, No. 1:07-CV-578, 2007 U.S. Dist. Lexis 83792 (W.D. Mich).
Wisconsin's parole system is "completely discretionary," so that the plaintiff prisoner had no liberty interest concerning being eligible for parole, and could not pursue a procedural due process claim based on an alleged informal policy of not paroling sex offenders until they had completed a sex offender treatment program. The prisoner claimed that he had, in fact, finished such a program, but that the certificate of that completion was removed from his records after he angered the directors of the program, and therefore could not be granted a parole hearing. The appeals court also found that the conduct alleged, even if true, did not shock the conscience, as required for a substantive due process claim. Bartley v. Wisconsin Dept. of Corrections, No. 07-2059, 2007 U.S. App. Lexis 28430 (7th Cir.).
Requiring an inmate to participate in a sex offender treatment program, which required him to attend explicit group discussions of a sexual nature and view certain images, did not violate his First Amendment rights, based on the "vital" public and governmental interest in rehabilitation of convicted sex offenders. Additionally, even if an individualized sex offender treatment program existed which would have met the plaintiff's objections, it would have "unduly depleted" the prison's resources to provide it. The court failed to rule on the prisoner's objection to participation in the program under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C.S. § 2000cc et. seq. on the basis of the defendants' claim that they had not had sufficient opportunity to respond to that claim. Schnitzler v. Reisch, No. Civ. 06-4064, 2007 U.S. Dist. Lexis 72938 (S.D.).
Federal appeals court upholds the dismissal of a prisoner's claim that it violated his constitutional due process rights to classify him as a sex offender based on a prison disciplinary conviction without a further proceeding. The prisoner received all the due process required at his disciplinary hearing, so that his classification as a sex offender was an acceptable automatic consequence of his disciplinary conviction. The only additional due process he was entitled to was the receipt of notification of his sex offender classification. Mariani v. Stommel, No. 07-1068, 2007 U.S. App. Lexis 24256 (10th Cir.).
Convicted sex offender did not have a constitutional right to rehabilitative sex offender treatment, and the prisoner's claim that the failure to provide him with such treatment violated the terms of his plea bargain agreement could not be a basis for a federal civil rights lawsuit, although it might be raised in a petition for habeas corpus. Paige v. Oklahoma Dept. of Corrections, No. 07-6101, 2007 U.S. App. Lexis 21558 (10th Cir.).
California state officials and employees allegedly responsible for the conditions of confinement of civilly committed persons and persons awaiting commitment under the state's Sexually Violent Predators (SVP) Act were entitled to qualified immunity from a lawsuit asserting claims for double jeopardy, violation of procedural due process, violation of the Eighth Amendment prohibition on cruel and unusual punishment, and violation of the ex post facto clause of the U.S. Constitution (barring retroactive enhancement of the penalty for a crime). A federal appeals court ruled, however, that they were not entitled to qualified immunity on other claims raised in the lawsuit concerning the conditions of confinement of such persons, particularly as those sued were directors and policy-makers for the state hospital at which such persons were confined. Additionally, if the facts alleged by the plaintiffs were true, they might be able to show that they were subjected to punishment in unlawful retaliation for their filing of grievances about their conditions of confinement. Hydrick v. Hunter, No. 03-56712, 2007 U.S. App. Lexis 20729 (9th Cir.).
Prisoner who completed his sentence following a determination that he was a sexually violent predator (SVP), and then was housed at a county jail pursuant to a civil commitment, stated a claim for violation of his constitutional rights in housing him there. Appeals court rejects arguments that confinement in the county jail in "total separation" was not "punitive" and was not a "disciplinary category." The plaintiff, having been civilly committed, could not be subjected to conditions constituting punishment. Cerniglia v. Sacramento County, No. 04-17478, 2007 U.S. App. Lexis 2422 (9th Cir.).
Prisoner's claim that officials violated his due process rights by requiring him to agree to take anti-psychotic medications specified by a program coordinator of a sex offender treatment program as a condition of parole was not frivolous, and should not have been dismissed on that basis. The prisoner stated a possible claim for infringement on his liberty interest in avoiding the unwanted administration of anti-psychotic medications. Bundy v. Stommel, No. 05-1099, 168 Fed. Appx. 870 (10th Cir. 2006). [N/R]
Federal appeals court allows class action challenging conditions of confinement for civilly committed "Sexually Violent Predators" in California to proceed on most claims, including claims involving procedural and substantive due process, privacy, excessive force, access to courts, unlawful retaliation for grievances or lawsuits, and forced medication in non-emergency situations. Hydrick v. Hunter, No. 03-56712, 2006 U.S. App. Lexis 13497 (9th Cir.). [2006 JB Jul]
Parolee's claim that his First Amendment rights were violated when he was required, during a mandated sex offenders' program, to recite a prayer with the word "God" in it should have been analyzed under the Establishment Clause, prohibiting coercion to participate in religious activity, rather than on the basis of whether his belief that he should only say "God" while praying at home at night was a "serious" religious belief. Munson v. Norris, No. 04-3938, 435 F.3d 877 (8th Cir. 2006), rehearing denied, 2006 U.S. App. Lexis 5248. [2006 JB Jun]
A prisoner convicted of sodomy on his nephew, a child less than twelve years-old, could not be granted a requested name change he wanted to assume his deceased mother's maiden name to honor her. Despite the fact that he would be required, following his sentence, to register as a sex offender, people who knew him by the name used prior to his incarceration might not get alerted to his presence and sex offender status unless his name remained the same. In Matter of Application of Guttkaiss, 806 N.Y.S.2d 402 (Sup. Ct. Columbia County, 2005). [N/R]
Man detained by the State of Wisconsin as a sexually violent person failed to show that he was provided with constitutionally inadequate mental health treatment. He failed to show that decisions about his treatment were either made by unqualified personnel or that his treatment was "outside the bounds" of acceptable professional judgment. Williams v. Nelson, No. 04-C-774C, 398 F. Supp. 2d 977 (W.D. Wis. 2005). [N/R]
New York corrections officials were required to remove information from inmate's guidance file which was derived from a pre-sentence investigation report, which described an inmate as a sexual offender and contained references to rape and sodomy charges, when the only basis for that information were allegations related to charges on which the prisoner had been acquitted. Brown v. Goord, 796 N.Y.S.2d 439 (A.D. 3rd Dept. 2005). [N/R]
A one-day delay in providing pain medication to an inmate injured in an attack by another prisoner was not sufficient to show deliberate indifference to his serious medical needs. The prisoner, who received treatment by the prison doctor, and was subsequently referred to an optometrist, ophthalmologist, neurologist, and ear, nose and throat specialist, also could not show that his subsequent medical care for his injuries was inadequate. The record showed that he received surgery on his nose, pain medicine, x-rays, and a CT scan over a 3-year period of time following the incident. His mere difference of opinion concerning the proper treatment of his injuries did not show that the treatment provided was inadequate. The prisoner also failed to show that prison officials violated his rights by failing to protect him from the attack by another prisoner, which occurred during a sex offender treatment program's group meeting, since that attack was not foreseeable. Van Court v. Lehman, #04-35815, 137 Fed. Appx. 948 (9th Cir. 2005). [N/R]
Directive banning prisoners convicted of sex offenses against minors from receiving visits from minors, including their own children, was rationally related to legitimate penological interests in safety and security. Prison officials were aware of research showing that many sexual offenders repeated their offenses, that minor victims of sex offenses know the perpetrators between 80 and 90 percent of the time, and that sexual offenders who prey on children frequently "psychologically groom" them for a time before engaging in sexual activity. Further, there was evidence of incidents of sexual molestation of children in visiting rooms, and staffing inadequacies in terms of adequately monitoring such visits. The directive, therefore, did not violate prisoners' rights and was not cruel and unusual punishment. Further, the prisoners had alternative means of maintaining family relationships as they could communicate with family members by mail, telephone calls, or messages brought by persons authorized to visit. Doe v. Donahue, No. 49A02-0408-CV-674, 829 N.E.2d 99 (Ind. App. 2005). [N/R]
Prisoner's claim that his due process rights were violated when he was classified by prison officials as a sex offender because of an accusation by a female prison guard that he deliberately masturbated in his cell for her to see was not frivolous. Prisoner claimed that he was improperly denied the opportunity to present witnesses at a hearing on the sex offender classification. The appeals court does, however, reject as frivolous his equal protection and Eighth Amendment claims. Fistell v. Neet, No. 03-1285, 125 Fed. Appx. 219 (10th Cir. 2005). [N/R]
Revoking sex offender's supervised release or probation after he allegedly refused to incriminate himself as part of his sex offender treatment was a violation of the privilege against compelled self-incrimination provided by the Fifth Amendment. Appeals court also orders further clarification of which sexually explicit materials the offender was prohibited from possessing, finding a blanket prohibition on "sexually stimulating" materials unconstitutionally vague. United States v. Antelope, No. 03-30334, 2005 U.S. App. Lexis 1327 (9th Cir.). [2005 JB Mar]
State could not constitutionally impose sex offender registration and therapy as conditions to the release on mandatory supervision of a prisoner never convicted of a sexual offense without first providing due process. Coleman v. Dretke, No. 03-50743, 2004 U.S. App. Lexis 26660 (5th Cir. 2004). [2005 JB Feb]
California prisoner who had completed his criminal sentence and was a civil detainee awaiting proceedings to commit him as a sexually violent predator was entitled to non-punitive conditions of confinement under the due process clause of the Fourteenth Amendment. Summary judgment for correctional officials in his lawsuit challenging his conditions of confinement was therefore improper. Jones v. Blanas, No. 02-17148, 2004 U.S. App. Lexis 26814 (9th Cir. 2004). [2005 JB Feb]
Colorado prisoner had a protected property interest in being retained in a sexual offenders program when completion was required in order to be eligible for parole under his indeterminate sentence. He stated a possible procedural due process claim based on his alleged expulsion from the program without advance notice or an opportunity to be heard. Court also finds a possible substantive due process claim, ruling that the alleged conduct of expelling him from the program without notice or hearing could be viewed as an indifference to the prisoner's rights sufficient to "shock the conscience." Beebe v. Heil, No. CIV.A.02-D-1993(BNB), 333 F. Supp. 2d 1011 (D. Colo. 2004). [N/R]
Requirement that prisoners participating in sex offender program fully disclose their past sexual behavior, including potentially prosecutable conduct, did not violate their Fifth Amendment right against compelled self-incrimination, even though the inmate's failure to participate in the program resulted in her receiving a negative parole recommendation. Participation in the program was voluntary, not compelled, and the failure to participate did not automatically deprive the prisoner of consideration for parole. Wolfe v. Pennsylvania Dept. of Corrections, No. Civ. A. 02-2687, 334 F. Supp. 2d 762 (E.D. Pa. 2004). [N/R]
Juvenile court had no authority to invalidate a California prison regulation preventing visitation between certain sexual offenders and all minors, including minors who were not the victims of their crimes. California appeals court overturns order invalidating regulation and allowing an inmate convicted of sexual offenses involving children to receive visits from his two minor sons. Robin J. v. Superior Court of San Diego County, No. D044131, 2004 Cal. App. Lexis 1987 (Cal. App. 4th Dist. 2004). [2005 JB Jan]
Man held under Illinois sexually dangerous persons statute, under which criminal proceedings are stayed for the purpose of treatment for mental illness was a pretrial detainee properly classified as a "prisoner" for purposes of the exhaustion of remedies requirement and "three strikes" rule of the Prison Litigation Reform Act. His lawsuit asserting a claim for alleged inadequate access to prison law library was therefore properly dismissed for failure to exhaust available administrative remedies. Kalinowski v. Bond, No. 02-3273, 358 F.3d 978 (7th Cir.), cert, denied, 124 S. Ct. 2843 (2004). [2004 JB Dec] Prisoner's loss of certain incentive privileges because he was removed from a sexual abuse treatment program did not violate any recognized liberty or due process right. Laubach v. Roberts, No. 91, 329, 90 P.3d 961 (Kan. App. 2004). [N/R]
Prisoner's Fifth Amendment privilege against self-incrimination was violated by sexual offender counseling program's requirement that he reveal his history of sexual conduct, including actions for which criminal charges could still be brought, or else lose good time credits. Defendant prison officials, however, were entitled to qualified immunity, as the law on the issue was not clearly established. Donhauser v. Goord, 314 F. Supp. 2d 119 (N.D.N.Y. 2004). [N/R]
Federal appeals court rejects prisoner's claim that his constitutional rights were violated by requiring him to participate in sexual offender treatment program requiring him to admit to his offense, under penalty of a loss of privileges, including denial of visitation with his minor child, if he failed to participate. Wirsching v. State of Colorado, #00-1437, 360 F.3d 1191 (10th Cir. 2004). [2004 JB May]
Retroactive application of a rule making a prisoner incentive program dependent on participation in a sexual offender treatment program was not an impermissible enhancement of punishment of prisoner convicted of rape and aggravated sodomy. Carroll v. Simmons, #03-3236, 89 Fed. Appx. 658 (10th Cir. 2004). [N/R]
Prisoner classified as a sexual offender in prison, and compelled to participate in a treatment program in order to earn good time credits, despite not having been convicted of a sexual offense, was entitled to procedural due process before classification, but hearing held was adequate when determination was made because of a detailed account of the sexual assault based on statements from the victim. Gwinn v. Awmiller, #00-1485, 354 F.3d 1211 (10th Cir. 2004). [2004 JB Apr]
State trooper who provided community notification of the presence of out-of-state sexual offender who transferred his parole to Pennsylvania was entitled to qualified immunity, as a reasonable officer could have believed that such notification did not violate the offender's constitutional rights. Lines v. Wargo, 271 F. Supp. 2d 649 (W.D. Pa. 2003). [N/R]
Civilly committed sexual offenders can be placed in "therapeutic seclusion" either for purposes of therapy or to protect the offenders or others, but not as a means of inflicting extra punishment on them for their past sex crimes. Employees of state treatment facility were not entitled to qualified immunity on claims that they kept detainees in "seclusion" far longer than needed for reasons of therapy or security. West v. Schwebke, No. 02-4298, 333 F.3d 745 (7th Cir. 2003). [2004 JB Jan]
Prisoner's alleged pedophilia was a "severe mental disorder" qualifying him for commitment as a "mentally disordered offender" under a California statute, Cal. Penal Code Sec. 2962 et seq. Intermediate California appeals court rejects prisoner's argument that pedophiles who commit sex offenses fall exclusively under the Sexually Violent Predators Act, Cal. Welf. & Inst. Code. Sec. 6600 et seq., and are not mentally disordered offenders. The same offenses may qualify a prisoner for imposition of commitment under either of these statutes. Additionally, court finds that the treatment provided under either statute was substantially the same. The prisoner "contends he should be released because his pedophilia is 'under control' and he is not a threat to children. We disagree," the court concluded. "The psychiatric testimony established he was a threat to children, posed a substantial danger to others, and 'might very well molest children again.'" People v. Starr, No. B155507, 131 Cal. Rptr. 2d (Cal. App. 2nd Dist. 2003). [N/R]
New Hampshire Department of Corrections' sex offenders program did not violate prisoners' Fifth Amendment rights against self-incrimination by making them disclose their past histories of sexual misconduct as a condition of participation in the program. The reduced likelihood of parole for refusal to participate was not a sufficient penalty to constitute "compelling" incriminating statements, and the result was not altered by the state's failure to provide immunity from prosecution for statements made in participating in the program. Ainsworth v. Stanley, #00-1678, 317 F.3d 1 (1st Cir. 2002). [N/R]
Requiring a prisoner to answer questions about particular past sexual offenses which he might still be prosecuted for would violate his Fifth Amendment right to be free from compelled self-incrimination, and he could not be denied good time and work credits for refusal to answer such questions in the course of a sex offenders' treatment program, but he also could not avoid participating in and cooperating with an otherwise non-incriminating treatment program merely because he asserted this privilege to answering some questions. Bender v. New Jersey Dept. of Corrections, 812 A.2d 1154 (N.J. Super. A.D. 2003). [2003 JB Apr]
The withholding of a prisoner's good time credits on the basis of his refusal to participate in a sex offender program did not violate his rights despite the fact that the crime he was convicted of was not one involving sexual misconduct. An unchallenged pre-sentence report showed that he had, in fact, performed sexual acts with two children, and the burglary he was convicted of involved the residence of the children he was accused of molesting. Boster v. Goord, 752 N.Y.S.2d 403 (A.D. 2002). [N/R]
Illinois Sexually Violent Persons Commitment Act did not violate a parolee's due process right. In re: Detention of William Allen, No. 2-00-1379, 772 N.E.2d 354 (Ill. App. 2nd Dist. 2002). [N/R]
Persons civilly committed to state custody as "sexual predators" stated a claim for denial of due process based on purported "punitive" conditions of confinement and lack of mental health treatment. Hargett v. Baker, 2002 U.S. Dist Lexis 13721, 2002 WL 1732911 (July 26, N.D. Ill.). [2002 JB Oct]
U.S. Supreme Court rules that prisoners may be offered incentives to participate in treatment and rehabilitation programs in which they are required to disclose prior acts that may be crimes without violating the compelled self-incrimination prohibitions of the Fifth Amendment. McKune v. Lile, #00-1187, 2002 U.S. Lexis 4206. [2002 JB Jul]
Civil commitment of previously convicted sex offender require some finding of the offender's "lack of control." Kansas v. Crane, #00-957, 122 S. Ct. 867 (2002). [2002 JB Apr]
298:157 Sexual offender's constitutional rights were not violated when he was terminated from rehabilitative program under which he could earn good time credits, based on further misconduct during incarceration. Conway v. Gorczyk, No. 99-553, 765 A.2d 463 (Vt. 2000).
283:110 A requirement that a prisoner classified as a sex offender, based on alleged conduct for which he was never convicted, did not constitute invalid after the fact enhancement of his punishment; prisoner was, however, entitled to a hearing to challenge the label when he had not earlier been required to participate in a treatment program. Chamers v. Colorado Dept. of Corrections, #97-1023, 20 F.3d 1237 (10th Cir. 2000).
286:158 Denial of privileges to prisoner serving a sentence for sexual exploitation of a child, following his refusal to participate in a sexual abuse treatment program, did not violate his rights; court finds no violation of the privilege against self-incrimination, no violation of the prisoner's First Amendment or religious freedom rights, and no problem with the use of a "penile plethysmograph" to measure his sexual responses to various images, when participation in the treatment program was voluntary. Searcy v. Simmons, 97 F. Supp. 2d 1055 (D. Kan. 2000).
286:156 Prisoner who was classified as a sexual offender under an Alabama state statute, despite never having been convicted of a sex related offense was entitled to due process before such classification because of the "stigmatizing" effect of this classification; second prisoner who had been convicted of a sex related offense could not challenge sex offender community notification statute while incarcerated, since it did not affect him prior to his release. Kirry v. Siegelman, Nos. 98-6236, 98-6672, 195 F.3d 1285 (11th Cir. 1999).
253:12 Prisoner's constitutional right against self- incrimination was not violated by his removal from "family reunion program" after he was denied participation in sex offenders program because he would not admit to commission of sexual offenses of which he had been convicted; pendency of direct appeal to conviction did not alter result. Johnson v. Baker, 108 F.3d 10 (2nd Cir. 1997).
[N/R] Prisoner convicted of sex offenses received all the due process to which he was entitled to when he was labeled a sex offender based on his crimes, but it violated due process to apply such a label to a prisoner not convicted of sex offenses unless he was given a chance to challenge that label in an adversary proceeding. Neal v. Shimoda, 131 F.3d 818 (9th Cir. 1997).
244:61 Prisoner had no constitutional right to participate in prison programs designed for the rehabilitation of sex offenders. Richmond v. Cagle, 920 F.Supp. 955 (E.D. Wis. 1996).
244:61 Nurse allegedly attacked by juvenile sex offender was not entitled to $325,000 in damages against her supervisor when jury found that supervisor acted with gross negligence but not with deliberate indifference. L.W. v. Grubbs, 92 F.3d 894 (9th Cir. 1996).
246:92 Prisoners serving sentences for sexual offenses had no constitutional claim regarding denial of additional psychiatric or psychological treatment, besides group therapy sessions they were already given, in absence of medical evidence showing that they had a serious need for such treatment. Riddle v. Mondragon, 83 F.3d 1197 (10th Cir. 1996).
Prison's interest in rehabilitation of sex offender prisoner outbalanced his limited liberty interest in refusing participation in sex offender treatment program; compelled participation did not violate prisoner's constitutional rights. Sundby v. Fiedler, 827 F.Supp. 580 (W.D. Wis. 1993).
Convicted sex offender who could remain confined in treatment center after prison sentence expired was entitled to injunction requiring reappraisal of his personal dangerousness. Cameron v. Tomes, 990 F.2d 14 (1st Cir. 1993).
Missouri inmate serving a sentence for rape had no liberty interest in participating in sexual offenders program, even if his release on parole was contingent on it. Jones v. Moore, 996 F.2d 943 (8th Cir. 1993).
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