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Utah Supreme Court: Procedural Due Process Violated Where Failure to Participate in Sex Offender Treatment Program Used to Deny Parole to Prisoner Not Convicted of Sex Offense

by David Reutter

The Supreme Court of Utah held that the Board of Pardons and Parole (“Parole Board”) violated a prisoner’s due process rights by adjudicating him a sex offender. The designation as a sex offender was based on unproven allegations in a police report and a mistrial without conviction on the offense. The Court outlined the due process requirements to classify a prisoner who has never been convicted of a sex offense as a sex offender.

Michael Neese has never been convicted of a sex offense or adjudicated as a sex offender. That, however, did not stop the Parole Board from denying him a release date for parole based upon its determination that he is a sex offender who refused to participate in sex offender treatment.

After trial on a forcible sodomy charge ended in a mistrial, Neese pleaded guilty to two counts of obstruction of justice, one count of theft, and one count of burglary. He received a composite prison sentence of two to 30 years, and it was estimated he would be released in 2014.

The Parole Board at Neese’s original parole hearing deemed him a sex offender based upon the sodomy charge, refused to set a parole date, and required sex offender treatment. Neese refused to participate in such treatment, which caused denial of a parole date at a 2014 hearing. Neese filed a petition for extraordinary relief, which was denied by the district court.

In the appeal, the Utah Supreme Court found Neese’s claim was preserved for review. It then instructed that the principles it articulated in Labrum v. Utah State Board of Pardons, 870 P.2d 902 (Utah 1993), extend the protection of “fundamental principles of due process” to prisoners at “original parole grant hearings.” They require that the Parole Board must give prisoners (1) adequate notice to prepare for a parole hearing and (2) “copies or a summary of the information in the [Parole] Board’s file on which the [Parole] Board will rely.”

In cases such as the present one, where the Parole Board has concluded that Neese committed a sex offense for which he was never convicted or held liable, was unsuccessfully tried on, and culpability was specifically bargained away in plea negotiations, the Court ruled that greater procedural protections than thin notice and opportunity to review the Parole Board’s information are required.

The Court noted that when the Parole Board erroneously determines a prisoner is a sex offender, the prisoner “can’t” trustfully participate in a sex-offender treatment program. The Court noted that if parole could be postponed “solely on unproven allegations” without allowing the prisoner an opportunity to call witnesses or to present evidence, “The risk of unjustified sentencing disparities in such a system is great. By the same token, defendants will be justifiably wary of accepting plea deals if they know they bargained for dismissed charges … can come roaring back at their parole hearing and result in a sentence decades longer than the sentence all parties contemplated based on the sentence matrix at the time.”

The Court held that when the Parole Board intends to classify a prisoner as a sex offender who has never been convicted or adjudicated as such, it must (1) give “particularized notice that it intends to consider and effectively decide unconvicted sexual conduct” in making a parole decision, (2) allow the prisoner to call witnesses and present documentary evidence in defense, and (3) “provide a written statement of evidence it relied upon and the reasons it concludes that the [prisoner] committed the unconvinced sexual conduct.” In this case, the Parole Board did not afford Neese the foregoing procedural safeguards.

Accordingly, the Court reversed the district court’s grant of summary judgment to the Parole Board. See: Neese v. Utah Board of Pardons & Parole, 2017 UT 89 (2017). 

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Related legal case

Neese v. Utah Board of Pardons & Parole



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