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August 31, 2009

"Links to Sex Crimes to Follow Texas Suspects"

The title of this post is the headline of this interesting article in today's Wall Street Journal.  Here is how it begins:

Desirée Wood gave up hope that the man who raped her 20 years ago in Dallas would ever be caught and sentenced for the crime. Now, she says, she has reason to believe her attacker might see some form of justice, after all.

On Tuesday, a law takes effect in Texas that lets prosecutors and parole boards for the first time see DNA evidence that links a suspect to an old sexual assault, even though the statute of limitations has expired on the case and the suspect was never tried. Previously, there would be no record linking the suspect to the old crime.

Supporters of the law, the first of its kind in the country, hope it means that suspects in those old cases will face more-vigorous prosecutions and sterner parole boards should they find themselves in trouble with the law again. Opponents say the law could rob suspects of due-process rights.

And here is how the piece articulates the due process concerns with this new Texas law being articulated by others:

The law has its critics. The American Civil Liberties Union is concerned that it could punish suspects without the benefit of due process.  After objections from the ACLU, the proposed law was revised to allow only law-enforcement agencies to access DNA information linking someone to an old sexual assault.  The law also allows suspects to petition for removal of the information from their files if they believe it has been wrongly included.

The ACLU still has concerns about how the information could be used.  "This is something we will definitely be monitoring to make sure there aren't negative unintended consequences," said Rebecca Bernhardt, policy director of the Texas ACLU.

August 31, 2009 at 03:15 PM | Permalink

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Comments

FYI, this may be the more important story on sex offender policy out of Texas today.

The new law the post is about poses a novel concept to debate, but it will impact a very small number of people. Changing parole rules for applying sex offender registration requirements in TX could affect thousands.

Posted by: Gritsforbreakfast | Aug 31, 2009 4:32:55 PM

The magnitude of the due process concern depends upon how much of a difference due process would have made in the case.

If Texas has created a civil status, say "future sex offender threat" comprised of people who had convictions for sex offenses and people for whom a preponderance of the evidence showed had committed sex offenses, with one of the requirements being a DNA test for offenses out of the statute of limitations (subject to a discovery rule requiring a match to be made within six years of the test results), the only penalty for which would be a listing in a database available to the public with no formal legal consequences, I doubt that this would violate due process under the constitution. Suppose that this was established by civil action, with collateral estoppel making it duck soup for convicted sex offenders.

It would likely probably not violate the due process clause for a parole board to check the "future sex offender threat" list prior to parole hearings, when that is a matter of public record, together with all other information available to them.

What percentage of people win criminal rape cases where there is DNA evidence against them? I suspect that it is very small.

What percentage of people would win civil "future sex offender threat" cases when there is DNA evidence against them? I suspect that this is even smaller, particularly for people who are already incarcerated in prison. And, I'm not sure that there is a constitutional right to counsel in that kind of civil case.

I suspect that you could count on your fingers the number of cases where failure to use constitutional due process, if it is required in this context, would make a difference in Texas.

Even as is, it isn't clear that there is a due process right in a parole hearing (privilege v. right). The maximum sentence for the original offense remains unchanged. And, except for those already doing hard time for a serious offense, the difference between parole and not parole isn't that many years.

Part of the problem is the graet ambiguity over what a parole hearing should even be about, that is most resolved by who is appointed to the parole board, rather than the legal standards to apply.

From a utilitarian perspective, if DNA tests are anywhere near as accurate as they are billed as being, and the parole hearing provides even a brief chance to cast doubt on DNA tests where the issue was consent and not the existence of a sex act, or there are other ways that the DNA could have gotten where it did, the benefits of keeping this person in longer may be great. On the other hand, the data seem to show the reoffense rate decays quick quickly after the offense. Given that these are all stale crimes, one suspects that the extra risk that offenders of these crimes might have could be exhausted by the time it comes up in a parole hearing.

Posted by: ohwilleke | Aug 31, 2009 10:00:35 PM

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