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Samuel Barge, Timothy Helsel, Peter Rackley, Joseph Hartdegen, Juan v. Pennsylvania Board of Probation and Parole

February 2, 2012

SAMUEL BARGE, TIMOTHY HELSEL, PETER RACKLEY, JOSEPH HARTDEGEN, JUAN LOPEZ, CLYDE PHILLIPS, AND GREGORY MOORE, PETITIONERS
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, CATHERINE C. MCVEY, CHAIRMAN, PENNSYLVANIA DEPARTMENT OF CORRECTIONS, AND JOHN E. WETZEL, SECRETARY, RESPONDENTS



The opinion of the court was delivered by: Robert Simpson, Judge

Submitted: October 21, 2011

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY JUDGE SIMPSON

Petitioners, who are current or former state correctional inmates*fn1 accused or convicted of sex offenses, and who were granted parole, but were denied release to community corrections centers (CCCs), filed suit in our original jurisdiction. Petitioners challenge the policies and practices of the Pennsylvania Board of Probation and Parole (Board) and the Department of Corrections (DOC) in the parole release process. They seek mandamus and injunctive relief. *fn2 DOC and the Board filed preliminary objections, challenging, among other things, the legal sufficiency of the complaint. Also before the Court at this time is Petitioners' motion for summary relief.

For the reasons that follow, we sustain DOC's preliminary objections and, therefore, we dismiss Petitioners' claims against DOC. Additionally, we sustain in part, and overrule in part, the Board's preliminary objections. Finally, we deny Petitioners' motion for summary relief.

I. Petition for Review

A. Overview of Petitioners' Claims

In their 154-paragraph petition for review, Petitioners begin with an "overview" of their claims, which we summarize as follows. Petitioners are Pennsylvania state correctional institution inmates who were granted parole, but who were denied release from prison on parole. This denial of parole release is pursuant to policies and practices of DOC and the Board, which are allegedly contrary to the duties imposed by Pennsylvania law, as well as the requirements of the United States and Pennsylvania Constitutions. These policies and practices include the denial of transitional community housing, including CCCs, also known as "half-way houses," operated by DOC, to individuals who committed a sex offenses. Pet. for Review at

¶4. These policies and practices also include the Board's failure to establish, by regulation, evidence-based and uniform standards for approval of ongoing residency, known as home plans, and to implement these standards in a manner that ensures the timely and efficient release of individuals granted parole who meet these standards.

B. Factual Background

Petitioners aver the following facts. Each Petitioner has at some point in the past committed or been accused of a sex offense. The Board granted each Petitioner parole "following a determination that, subject to compliance with specific conditions, each [Petitioner] does not at this time present a reasonable risk of harm to the community." Pet. for Review at ¶7.

Petitioners further aver DOC has issued reports finding sex offenders present a significantly lower rate of recidivism than any other category of offender. Petitioners aver DOC's Office of Planning, Research, Statistics and Grants prepared these reports, and both reports are currently available at www.cor.state.pa.us. See Pet. for Review, Ex. 1 at 7, 13 (entitled, "A REVIEW OF EVIDENCE BASED PRACTICE IN THE ASSESSMENT & TREATMENT OF SEX OFFENDERS" December 2005); Ex. 2 at 8 (entitled, "Recidivism in Pennsylvania State Correctional Institutions 1999-2004" December 2006).

Petitioners also aver the vast majority of paroled sex offenders recommitted to prison are technical parole violators rather than convicted parole violators. See Pet. for Review, Ex. 1 at 6. Further, when a paroled sex offender commits a new criminal offense, it is less likely to be a sex offense.

Petitioners allege DOC has also found that sex offenders elicit a great degree of public fear and apprehension as well as abhorrence. Id. at 4. Additionally, they aver, although the overall crime rates of sex offenders decreased, during at least one recent year (2004) more sex offenders were admitted to Pennsylvania prisons than were discharged. Id. at 3, 6.

Petitioners further allege sex offender treatment is available to all CCC residents on an outpatient basis. See Pet. for Review, Ex. 3 at 2 (DOC publication entitled, "Community Corrections" April 2004); Ex. 4 at 31 (DOC publication entitled, "A Handbook for the Families and Friends of Pennsylvania Department of Corrections Prison Inmates" November 2006) (currently available at DOC's website).

C. Parole to CCCs

For a number of years, the Board relied on CCCs as acceptable placements for those parolees whose release was conditioned on initial transitional or halfway house occupancy. There are approximately 38 CCCs operated by private contractors who respond to requests for proposals from DOC and approximately 14 CCCs run directly by DOC that are geographically distributed throughout Pennsylvania.

Petitioners aver the Board recently reported "the cost of supervising a parolee for one year is $3,095 versus $32,059 for a year of incarceration in a state correctional institution." See Pet. for Review, Ex. 6 at 3 (January 2011 Board report entitled "Pennsylvania's Re-entry System, Toward Safer Communities") (available at www.pbpp.state.pa.us).

Petitioners allege DOC has permitted, if not required, contracted CCCs to categorically reject all sex offenders, and all or most have done so. Most state-run CCCs also categorically reject all sex offenders. This rejection of sex offenders from CCC placement is without regard to whether the offender (1) has a home plan previously approved by the Board; (2) can show a likelihood of identifying an approved home plan during the CCC program period; (3) has access to independent services to assist with housing and employment; and, (4) requires income through employment before being able to secure ongoing housing. Petitioners further aver DOC does not consider the nature of their underlying sex offense, including whether it involved an adult victim, and whether it required registration under the statute colloquially known as Megan's Law. 42 Pa. C.S. §§9791-9799.9.*fn3

Petitioners allege the virtual absence of CCC beds for conditionally paroled sex offenders has been largely, if not entirely, based on community opposition. Numerous municipalities have adopted residency restriction ordinances which provide that those sex offenders who must register under Megan's Law are not permitted to reside within designated distances from where children may congregate.

Petitioners allege DOC honors these local residency restriction ordinances and the exclusion of sex offenders by both contracted and state-run CCCs is at least, in some instances, the result of such ordinances. In the few instances that a CCC accepts sex offenders, it severely limited the number of placements or beds assigned to sex offenders. CCCs have not so restricted any other category of paroled offender. These limitations result in an insufficient number of CCC placements available for paroled inmates whose release is dependent on initial CCC occupancy.

Petitioners further allege that in granting parole, the Board often bases its decisions on an offender's motivation for success and completion of institutional programs, including employment skills training. A principal purpose of CCC occupancy is to facilitate the achievement of a statutory objective of parole, which is to provide parolees the opportunity to become useful members of society. See Section 6102(1) of the statute commonly known as the Parole Act, 61 Pa. C.S. §6102(1). Those who spend extended periods in prison typically require access to the community through CCC occupancy to secure ongoing housing and employment. CCC occupancy usually extends for three to six months. Those paroled to CCCs are typically able to demonstrate the ability to obtain an approved home plan prior to release from the CCC, when given the opportunity.

Many social service providers including, but not limited to, Catholic Social Services, Community Shelter Services and the Salvation Army are available to assist parolees with housing and employment while they are in a CCC, but not while they are still in prison. Offenders who are granted parole with the condition that they initially occupy a CCC are also required by the Board to obtain an approved home plan before their release from the CCC. Upon the grant of parole, these offenders are referred by institutional parole staff to DOC for CCC placement. However, DOC rejects all sex offenders for CCC placement if they do not have an approved home plan prior to the referral for CCC placement.

Due to the additional parole release condition imposed by DOC upon sex offenders, that they have an approved home plan prior to a referral for CCC placement, these offenders are denied parole release and, in effect, parole. Despite informing paroled sex offenders that CCC rejection is due to not having an approved home plan, DOC, nevertheless, rejects sex offenders referred for CCC placement even when they have been able to and do obtain an approved home plan prior to the referral. When doing so, DOC states that it views the placement to be "problematic" or specifically due to the circumstances of their offense, even though these circumstances were fully considered by the Board when granting parole. Pet. for Review at ¶41.

When DOC rejects paroled sex offenders for CCC placement, it recommends resubmission of referrals for such placement six months prior to the date these offenders reach their maximum sentences. Even then this routinely does not occur.

Petitioners further allege that the Board is aware there are virtually no CCC placements available for the hundreds of sex offenders who are granted parole based on DOC's policies and practices; however, it has not contracted to supplement halfway house services in order to assist these parolees.

D. Parole Supervision Through Home Plan Approval

Petitioners next allege the Board established uniform, written standards that apply to home plan applications of sex offenders whose victims were minors. Specifically, the Board determined such plans will be rejected if a proposed home is within 1,000 feet of a school, day care facility or playground. Nevertheless, home plans are also rejected if the proposed residence is within a much greater distance of a school, day care facility or playground. Additionally, the Board rejects home plans that are within 1,000 feet of a school bus stop or a church, or if there is a family with a child living nearby. Such standards have not been reviewed to determine if they are evidence-based.

Petitioners further aver the Board does not permit approval of a home plan if it does not comply with a local sex offender residency restriction ordinance. Also, it is not unusual for the same property to be approved for a paroled sex offender by one parole agent and disapproved for the same offender by another agent. Some parole agents permit approval of homes anywhere in the state, while others refuse to consider a home that is not within an offender's original home county even when no ties to that county remain after years of imprisonment.

Applications for home plan approvals are routinely denied with no reason given or simply receive no response from the Board. There is no process available to obtain administrative review when a decision is issued without a reason, is not issued, or is issued for a reason inconsistent with uniform written standards.

E. Individual Petitioner Facts

Petitioners then set forth (in more than 90 paragraphs) the specific facts applicable to each named-Petitioner, as well as several other inmates who are not named as Petitioners. They aver these individuals were granted parole, but were not actually released on parole to CCCs or given home plan approval. Petitioners assert the facts averred show the Board's denial of their home plan applications lack uniformity. They further aver the reasons provided by the Board are based on varying standards and factors that are inconsistent with published guidelines and do not take into account the specific nature of Petitioners' underlying offenses. Petitioners allege in some cases DOC rejects CCC placement despite the fact the Board approved an individual's home plan.

F. Powers and Duties of the Board and DOC

Petitioners also allege the following with regard to the powers and duties of the Board and DOC. Contrary to its exclusive authority to parole and release on parole, and its duty to ensure parole and parole release are carried out in an efficient and timely manner, the Board allows Petitioners to languish in prison. The Board does so with knowledge that DOC, through its discriminatory policies, will not allow them to meet the terms of their parole. See Sections 6102(3), 6132(a)(1) and 6137(a) of the Parole Act, 61 Pa. C.S. §§6102, 6132(a)(1), 6137(a). The Board failed to meet its duty to ensure the efficient and timely release of those granted parole, directly and through its duty to contract for supplemental community services, by relying solely on its agreement with DOC to assist parolees with their transition into the community. See Section 6131(a)(8) of the Parole Act, 61 Pa. C.S. §6131 (a)(8).

The Board also failed to ensure the efficient and timely release of those granted parole by not meeting its duty to establish uniform statewide and evidence-based standards for home plan approval and making sure, through adequate administrative oversight, these standards are followed by its agents. See 61 Pa. C.S. §§6131(a)(5)(ii), (13), (14).

DOC failed to meet its duty as a Commonwealth agency to exercise only those powers given to it expressly or by necessary implication, or, with regard to the latter, to not exercise any power given exclusively to another agency. By agreeing to assist the Board in carrying out its responsibility to reintegrate paroled offenders into the community and to divert appropriate offenders from prison by way of CCC housing, DOC implicitly agreed not to interfere with the Board's exercise of its exclusive authority to parole and release on parole. DOC failed to meet its duty to act consistently with this agreement.

By denying Petitioners the opportunity for community reintegration based on community opposition and by otherwise failing to serve a legitimate state objective in treating sex offenders differently than other paroled offenders, the Board and DOC violated Petitioners' rights to equal protection of the laws under the United States and Pennsylvania Constitutions.

Petitioners further aver their continued incarceration, which results from the failure of the Board and DOC to meet their statutory and constitutional duties, caused and continues to cause them irreparable harm. They have no adequate remedy at law to redress the violations of their rights.

G. Prayer for Relief

Based on these averments, Petitioners seek the following relief:

Wherefore, Petitioners request that this Court enter an order in mandamus which directs [DOC and the Board] to comply with their duties pursuant to Pennsylvania statutes and the provisions of the United States and Pennsylvania Constitutions guaranteeing equal protection of the laws, as follows:

1. enjoining DOC from interfering with the [Board's] exclusive authority to release on parole offenders who have been granted parole by discriminating against paroled sex offenders in the provision of transitional housing services;

2. enjoining DOC from continuing to contract with CCC providers which refuse to accept paroled sex offenders and instead, as necessary, procure providers which enable [DOC and the Board] to meet their statutory and constitutional duties;

3. enjoining [the Board] to supplement contracts for community services to assist parolees, as necessary to ensure the efficient and timely release of offenders who have been granted parole;

4. enjoining [the Board] to establish by regulation uniform and evidence-based standards ...


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