Doe v. United States Parole Commission , 958 F. Supp. 2d 254 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOHN DOE,
Plaintiff,
v. Civil Action No. 12-1807 (JDB)
U.S. PAROLE COMMISSION and
COURT SERVICES AND OFFENDER
SUPERVISION AGENCY FOR THE
DISTRICT OF COLUMBIA,
Defendants.
MEMORANDUM OPINION
Plaintiff John Doe brings this action against the U.S. Parole Commission and the Court
Services and Offender Supervision Agency for the District of Columbia ("CSOSA"). He
challenges the imposition of a "Sex Offender Aftercare [Assessment]" condition on his
supervised release, and seeks declaratory and injunctive relief. Now before the Court are Doe's
motion for a preliminary injunction barring enforcement of the assessment condition and
defendants' motion to dismiss in part and for summary judgment. For the reasons set forth
below, defendants' motion for summary judgment will be granted and Doe's motion will be
denied.
BACKGROUND
In April 2010, Doe was convicted in D.C. Superior Court of assault with a deadly weapon
and carrying a pistol without a license. See Defs.' Mot. to Dismiss in Part & for Summ. J. &
Opp'n to Pl.'s PI Mot. [ECF 18] ("Defs.' MSJ"), Ex. 1 [ECF 22] 1-2. He was sentenced to 28
months' incarceration and a three-year term of supervised release, which he is currently serving.
See id., Ex. 2 [ECF 22-1]; Compl. [ECF 2] ¶ 32. Doe's conditions of supervised release are set
by the Parole Commission. See D.C. Code § 24-403.01(b)(6). CSOSA is responsible for Doe's
supervision during his supervised release term. See id. § 24-133(c)(2).
In November 2011, Doe was released from prison to a halfway house. See Compl., Ex. 6
[ECF 2-4]. He was told that he would not be required to register as a sex offender or undergo
sex offender treatment. Id. Doe returned to prison in February 2012 due to halfway house
program failure and was released again later that month. See Compl. ¶ 38. No sex offender
conditions were imposed. See id. ¶ 39.
In August 2012, Doe went to his regularly scheduled meeting with his Community
Supervision Officer ("CSO") and learned that he had been reassigned to CSOSA's Sex Offender
Unit. Id. ¶ 40. On August 20, Doe's CSO and Paul Brennan, a Supervisor CSO in the Sex
Offender Unit, submitted a request for modification of Doe's supervised release conditions to the
Parole Commission. See Compl., Ex. 5 [ECF 5-1]. CSOSA asked that Doe's conditions be
modified to include a "Special Sex Offender Aftercare Condition," which would have required
Doe to acknowledge his need for treatment and participate in a mental health program "with
special emphasis on long-term sex offender testing and treatment." Id. Doe learned of the
request to modify his conditions several weeks later. See Compl. ¶ 43. In response, on
September 19, 2012, his counsel sent the Parole Commission a written objection to the proposed
modification. See id. ¶ 44. Doe's CSO and Brennan then submitted a second request for
modification to the Parole Commission, asking that Doe be subject only to a "Special Sex
Offender Assessment." See Compl., Ex. 11 [ECF 5-2]. The Parole Commission granted this
request, and on October 17, 2012, issued a Notice of Action informing Doe that the following
2
had been ordered: "Sex Offender Aftercare [Assessment] – You shall undergo an evaluation to
determine the need for sex-offense treatment therapy." Compl., Ex. 1 [ECF 2-1]. The Notice
said that the decision was not appealable. Id.1 It did not give reasons for the decision.
The primary basis for imposing the special condition was a juvenile adjudication that
took place in 2003, when Doe was eleven years old. See Compl., Exs. 5 and 11 (CSOSA
requests); id., Ex. 13 [ECF 5-3] (memorandum of Parole Commission case analyst). Doe had
pled "involved" to second degree sexual abuse of his five-year-old god-sister. See Compl. ¶ 33;
id., Ex. 13.2 Also noted, by both CSOSA and the Parole Commission case analyst who
recommended imposition of the special condition, were two other incidents that allegedly
occurred around the time of Doe's juvenile adjudication. One involved Doe's presence among a
group of boys at school that surrounded a girl being raped; the other involved Doe's two-year-old
female cousin. See, e.g., Compl., Ex. 11, at 2-3. Neither incident resulted in an arrest or a
conviction. See id. Based on "the serious nature of [Doe's] past sexual behavior," it was
recommended that the Parole Commission impose the sex offender assessment condition "in the
interest of public safety." See Compl., Ex. 13.
After his juvenile adjudication, Doe was placed on probation for nine months and
underwent a court-ordered psychological evaluation. See Compl., Ex. 11, at 2. The examiner, a
1
Several months after Doe filed this lawsuit, the Parole Commission notified him that the
decision in the October 17, 2012 Notice of Action was in fact appealable. See Pl.'s Opp'n to
Defs.' MSJ & Reply in Supp. of PI Mot. [ECF 26] ("Pl.'s Opp'n & Reply"), Ex. 8 [ECF 28] (Jan.
25, 2013). Because Doe had filed suit before receiving this "correction," however, the Parole
Commission said that he was "not required" to pursue an administrative appeal. Id. Doe signed
his name on an appeal form on February 6, 2013, but did not provide any materials in support of
his administrative appeal. Id.
2
The Court interprets a plea of "involved" in a juvenile proceeding as the equivalent of a
guilty plea in an adult proceeding.
3
psychology intern, reported that Doe "[did] not seem to fit the typical definition of a 'sex
offender,'" that his acts did not appear to have been done in a predatory manner, and that he did
not seem "sexually deviant." Compl., Ex. 4 [ECF 5] 7. Rather, the examiner noted, Doe would
be classified as a "Naive Experimenter" in literature on juvenile sex offenders. Id. Since Doe's
2003 juvenile adjudication, there have been no reported instances of any sexual misconduct or
sexually deviant behavior on his part. Doe is not required to register as a sex offender, and
would not be required to do so under the special condition.
In November 2012, Doe brought this action challenging the imposition of the sex
offender assessment condition and sought a preliminary injunction. At that time, funding had
been authorized for sixteen fifty-minute individual assessment sessions, one ninety-minute group
assessment session, two polygraphs (an "Offense Specific Polygraph" and a "Sexual History
Polygraph"), and an assessment report. See Compl., Ex. 2 [ECF 2-2]. Defendants agreed to
postpone Doe's initial assessment session pending the resolution of Doe's motion for a
preliminary injunction and any dispositive motion filed by defendants. In January 2013,
defendants filed a motion to dismiss in part and for summary judgment. The Court held a
motions hearing on June 21, 2013. The parties' motions are now ripe for resolution.
LEGAL STANDARDS
Defendants move to dismiss Doe's due process claims under Federal Rule of Civil
Procedure 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, "a complaint must contain
sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). "If, on a [Rule 12(b)(6) motion], matters outside the pleadings are presented to and
not excluded by the court, the motion must be treated as one for summary judgment under Rule
4
56." Fed. R. Civ. P. 12(d). In resolving defendants' motion as it relates to all of Doe's claims,
including his due process claims, the Court will rely on matters outside the pleadings. Hence,
defendants' motion will be treated as one for summary judgment.
Summary judgment is appropriate when the pleadings and the evidence demonstrate that
"there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the initial
responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its
motion by identifying those portions of "the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those made
for purposes of the motion only), admissions, interrogatory answers, or other materials," which it
believes demonstrate the absence of a genuine dispute of material fact. Fed. R. Civ. P. 56(c)(1);
see also Celotex, 477 U.S. at 323.
In determining whether there exists a genuine dispute of material fact sufficient to
preclude summary judgment, the Court must regard the non-movant's statements as true and
accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than
the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. Moreover,
"[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may
be granted." Id. at 249-50 (citations omitted). Summary judgment, then, is appropriate if the
non-movant fails to offer "evidence on which the jury could reasonably find for the
[non-movant]." Id. at 252.
DISCUSSION
5
In this action, Doe asserts three claims for relief: a statutory claim, a procedural due
process claim, and a substantive due process claim. Before turning to each of these claims, the
Court will address a matter of vigorous dispute between the parties: how to properly characterize
the "assessment" ordered by the Parole Commission.
Defendants have submitted three declarations from Paul Brennan, on which they rely in
offering their characterization of the assessment. Defendants stress that the assessment is "only
an evaluation as a preliminary step" and that the Parole Commission has neither "classified" Doe
as a sex offender nor required him to undergo sex offender "treatment." See Defs.' MSJ 20, 23.
According to Brennan: "A sex offender assessment is distinctly different from sex offender
treatment." Defs.' Reply [ECF 32], Attach. 1, Supp'l Decl. of Paul Brennan [ECF 32-1] ("Supp'l
Brennan Decl.") ¶ 6. He explains that an assessment involves up to sixteen individual sessions
with a therapist at the Center for Clinical and Forensic Services ("CCFS"), whose purpose it is to
identify risk factors and determine if there is a need for sex offender treatment. Id. ¶¶ 7, 13-14,
28.3 He further explains that the group assessment session listed on the funding authorization
form is actually "an orientation given to newly assigned offenders"; a therapist gives the
attendees an overview of the assessment process and "[n]o intimate information is discussed."
See Defs.' MSJ, Attach. 1, Decl. of Paul Brennan [ECF 19-1] ("Brennan Decl.") ¶ 11. Brennan
states that polygraphs are used in the assessment phase but that no incident- or offense-specific
polygraph will be administered if the person being assessed does not deny the occurrence of his
or her past offense. Supp'l Brennan Decl. ¶ 15. Regarding disclosure, Brennan states that Doe's
3
Brennan states that sixteen sessions are not always required to complete the assessment.
Supp'l Brennan Decl. ¶ 13. The number of sessions needed depends on the individual and is to
be determined after the assessment begins. See id.
6
juvenile adjudication is confidential and will not be disclosed to his "collateral contacts," such as
family, friends, and significant others. See id. ¶¶ 27, 37; see also Brennan Decl. ¶ 18 (stating that
CSOSA is "bound by confidentiality requirements regarding juvenile information and would not
be permitted to disclose protected information without consent"). He also notes that CSOSA
does not require its staff to tell a supervisee's collateral contacts that he or she is assigned to the
Sex Offender Unit, and that the door to the Sex Offender Unit is innocuously labeled "Special
Supervision Office." Supp'l Brennan Decl. ¶¶ 29, 32.
Doe argues that the term "assessment" is misleading. See Pl.'s Mot. for Prelim. Inj. [ECF
3] ("Pl.'s PI Mot.") 4. He contends that if the sex offender assessment condition is enforced he
will be subjected to mental health "treatment" of "the most intrusive sort." Id. Doe stresses that
the central component of CSOSA's evaluation process is a "psychosexual assessment" – a series
of detailed questions about a person's sexual history, thoughts, and practices.4 See id.; see also
4
Citing Wills v. U.S. Parole Commission, 882 F. Supp. 2d 60, 66 n.3 (D.D.C. 2012), in
which the plaintiff had already undergone such a psychosexual assessment, Doe asserts that he
will be asked, among other things:
• whether he describes himself as homosexual, heterosexual, or bisexual;
• what sexual experiences he had prior to the age of 10;
• at what age he first masturbated, and the number of times per day and per week he
masturbated at the height of his masturbation;
• at what age he first had sexual intercourse, and how many partners he has had;
• the level of sexual confidence he felt as an adolescent;
• the varieties of sex in which he has engaged, including vaginal, anal, oral and
sadomasochistic;
• numerous aspects of his sexual interactions with consenting adult partners, done in
private;
• at what age he first viewed pornography, and how frequently he looks at pornography;
• whether he has ever suffered from impotence, or from a sexually transmitted disease;
• how stimulated he would be by, among other things, seeing an attractive boy under
the age of 12; engaging in anal sex; having sex with a prostitute; looking through a
window at a woman masturbating; and watching two men having sex;
• the number of times that he has stolen underwear;
• the number of times that he has cross-dressed; and
7
Compl. ¶¶ 25-26; Compl., Ex. 3, Excerpt of CSOSA Policy Manual [ECF 2-3] ("CSOSA
Manual") 10-11. A sexual history polygraph covering Doe's answers to these questions would
follow the psychosexual assessment, and, should it be determined that Doe was "deceptive"
during the polygraph, he could be found in violation of his supervised release conditions. See
CSOSA Manual 33-35. Defendants do not deny that, if Doe is evaluated, the psychosexual
assessment and sexual history polygraph described by Doe will be administered. They respond,
however, that an in-depth assessment of a person's sexual history and thoughts is the only way to
determine that person's risk of committing a sex offense, and that the psychosexual assessment,
polygraph included, is still just an assessment and does not rise to the level of treatment. See
6/21/13 Tr. of Mots. Hr'g [ECF 37] 40-42, 54.
Doe additionally asserts that despite defendants' assertions to the contrary, his "status" as
a sex offender will be publicized pursuant to CSOSA policy, even though his juvenile records are
confidential by law. See Pl.'s Opp'n & Reply 8; see also D.C. Code § 16-2331(b). Doe relies in
large part on the chapter of CSOSA's Policy Manual on supervision in the Sex Offender Unit,
which contains some policies that apply only to registered sex offenders but others that appear to
apply to anyone being supervised in the Sex Offender Unit. The manual requires, for example,
that CSOs "notify all persons with whom the offender resides about the offender's supervision
status and conviction for any sexual offenses/for all registered sex offenders"; "establish contact
with other members of the offender's residence"; "have communication with all identified
collateral contacts"; and "regularly communicate with all valid collateral contacts to assess the
offender's compliance with the conditions of release, verify pertinent information, gather
• the number of times that he has had sexual contact with a dead animal or person.
See Pl.'s PI Mot. 4-5; see also Compl. ¶ 26.
8
intelligence and assess risk to community safety in accordance with the assigned supervision
level (i.e., family, therapists, employers, etc.)." See Compl. ¶ 31 (citing CSOSA Manual 4, 7).
Pointing to an incident that occurred last Halloween, Doe asserts that his supervision in the Sex
Offender Unit has already resulted in the disclosure of his status as a sex offender. On October
31, 2012, a police officer and two CSOSA officers came to Doe's grandmother's house and told
Doe, in front of his grandmother, that he could not go outside that night because he was a
registered sex offender (which he is not). Id. ¶ 54. Apparently, this incident happened as part of
a CSOSA "initiative" applicable to all supervisees in the Sex Offender Unit. See id.
With the parties' competing characterizations of the sex offender assessment condition in
mind, the Court now turns to Doe's claims in this case.
I. Statutory Requirements for Conditions of Supervised Release
District of Columbia offenders on supervised release, like Doe here, are subject to the
authority of the Parole Commission until completion of their term of supervised release. D.C.
Code § 24-403.01(b)(6). The Parole Commission has "the same authority" as is vested in federal
district courts by 18 U.S.C. § 3583(d)-(i). Id. Under § 3583(d)(1), any condition of supervised
release must be "reasonably related" to "the nature and circumstances of the offense, the history
and characteristics of the defendant, deterrence of criminal conduct, protection of the public, and
treatment of the defendant's correctional needs." See 18 U.S.C. § 3583(d)(1) (referencing factors
set forth in § 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D)); United States v. Accardi, 669 F.3d
340, 346 (D.C. Cir. 2012). Any condition must also "involve[] no greater deprivation of liberty
than is reasonably necessary" for purposes of deterrence, public protection, and effective
treatment, and must be consistent with any pertinent policy statements issued by the U.S.
Sentencing Commission under 28 U.S.C. § 994(a). 18 U.S.C. § 3583(d)(2)-(3). The Court
9
reviews the Parole Commission's imposition of a special condition of supervised release for
abuse of discretion. See United States v. Legg, 713 F.3d 1129, 1131 (D.C. Cir. 2013) (appellate
review of district court's imposition of supervised release conditions for abuse of discretion).5
Doe contends that the sex offender assessment condition (1) is not reasonably related to
the offenses of conviction, his history and characteristics, or the goals of deterrence, public
protection, and treatment, and (2) involves a greater deprivation of liberty than is reasonably
necessary. See Compl. ¶¶ 61-65.
Doe is currently on supervised release for assault with a deadly weapon and carrying a
pistol without a license. Although, as defendants point out, a victim of Doe's assault offense was
a woman, his current offenses were not of a sexual nature and bear no relation to the sex offender
assessment condition at issue. The question, then, is whether the condition is reasonably related
to Doe's history and characteristics and/or to deterrence, protection of the public, and treatment of
Doe's correctional needs. See 18 U.S.C. § 3583(d)(1); see also United States v. Barajas, 331
F.3d 1141, 1146 (10th Cir. 2003) ("[E]very circuit to have decided the issue has held that a
condition of supervised release may be imposed despite not being related to every enumerated
factor, so long as it is reasonably related to one or more of the factors.").
Defendants maintain that the assessment condition is reasonably related to Doe's history
and characteristics because his juvenile adjudication (and, to a lesser extent, the two other alleged
incidents in his juvenile history) provides cause to seek to determine whether any additional
conditions are needed to prevent future sex offenses. In this way, defendants argue, the condition
is also reasonably related to their efforts to protect the public and provide correctional treatment.
5
The parties agree that an abuse-of-discretion standard of review applies to Doe's
statutory claim. See Defs.' MSJ 10-11; 6/21/13 Tr. 5, 7.
10
Doe responds that his juvenile adjudication is too remote in time to justify imposition of
the sex offender assessment condition. At the time the condition was imposed, more than nine
years had passed since Doe's juvenile adjudication, and there is nothing in the record to suggest
that Doe committed any sort of sexual misconduct during that time. And because Doe was just
eleven years old at the time of his prior offense, the passage of nearly a decade with no indication
that Doe is likely to commit future sex offenses is perhaps even more significant than it would be
for an individual with a history of sex offenses as an adult. See Compl., Ex. 4, at 7
(psychological evaluator's observation that Doe did not appear to fit typical definition of "sex
offender" but rather appeared to be "Naive Experimenter"). Thus, the evidence of Doe's
propensity to commit future sex offenses is not strong.
Nonetheless, Doe has a sex offense in his past. Although a considerable amount of time
has passed since that 2003 offense, nine to ten years is not so great a time gap as to render any
condition imposed today not "reasonably related." Doe cites several cases where courts have
found that old convictions, without more, did not justify the imposition of sex offender
conditions. See United States v. Dougan, 684 F.3d 1030, 1037 (10th Cir. 2012)
(seventeen-year-old conviction); United States v. Sharp, 469 F. App'x 523, 525 (9th Cir. 2012)
(sex offense "more than a decade old" at time of sentencing); United States v. Thomas, 212 F.
App'x 483, 487 (6th Cir. 2007) (twenty-year-old conviction); United States v. Carter, 463 F.3d
526, 531-32 (6th Cir. 2006) (seventeen-year-old convictions); United States v. T.M., 330 F.3d
1235, 1240-41 (9th Cir. 2003) (twenty-year-old conviction and forty-year-old charge); United
States v. Scott, 270 F.3d 632, 636 (8th Cir. 2001) (fifteen-year-old conviction); see also United
States v. Worley, 685 F.3d 404, 409 (4th Cir. 2012) (vacating sex offender conditions based
solely on twelve-year-old convictions but recognizing that record on remand might nevertheless
11
support imposition of conditions to advance goals of public protection and rehabilitation); United
States v. Kent, 209 F.3d 1073, 1077 (8th Cir. 2000) (condition requiring psychological
counseling not reasonably related to physical abuse or threats made by defendant more than
thirteen years prior). Yet in each of these cases, more time had passed between the prior sex
offense and the imposition of the challenged condition than passed in this case. The Court will
not strike the assessment condition solely because of the age of Doe's juvenile adjudication.
Moreover, in most of the cases relied on by Doe, the challenged conditions involved more
than just an assessment. See, e.g., Dougan, 684 F.3d at 1032 (sex offender assessment and
treatment, "potentially including a polygraph and a penile plethysmograph"); Sharp, 469 F. App'x
at 525 (conditions requiring sex offender evaluation and, if directed by probation officer,
treatment for sexual deviancy);6 Carter, 463 F.3d at 528 (sex offender treatment); T.M., 330 F.3d
at 1239 (conditions included sex offender treatment); Scott, 270 F.3d at 634 ("sex offender
and/or mental health treatment"). In the Court's view, the nature of any special condition
imposed is certainly relevant to whether that condition is reasonably related to a defendant's
history and characteristics. Where, as here, there is a past sex offense but no recent evidence of a
propensity to commit future sex offenses, it would be unreasonable to mandate treatment without
any determination that there is a current need for it. To require that such a determination be
made, on the other hand, is not inherently unreasonable. Doe contends that it is unreasonable to
require an assessment because he was "already evaluated" when he was eleven. See Pl.'s Opp'n
& Reply 2. But just as a 2003 adjudication does not definitively establish that Doe is likely to
commit a sex offense today, neither does a 2003 evaluation definitively establish that he is not.
6
Here, in contrast to Sharp, the assessment condition does not authorize treatment if
CSOSA determines that treatment is necessary.
12
The Parole Commission has a legitimate interest in not releasing untreated sex offenders into the
community and may take steps, within reason, to avoid doing so. Accordingly, the Court
concludes that an assessment condition is reasonably related to Doe's history and characteristics
and defendants' obligations to protect the public.
That does not end the inquiry, however. The particular condition imposed must
"involve[] no greater deprivation of liberty than is reasonably necessary." 18 U.S.C.
§ 3583(d)(2). As depicted by defendants, the condition is a reasonable means of determining
Doe's current risk to the public and need for treatment, if any. It requires only an assessment and
not treatment – a distinction that, if real, is significant. As the Ninth Circuit observed in United
States v. Johnson: "Sexual offender treatment programs can be very significant restraints on
liberty. Johnson must undergo only an assessment, which is a much less significant restraint."
697 F.3d 1249, 1251 (9th Cir. 2012) (citation omitted) (upholding assessment condition). Doe
argues, however, that a condition may cause a greater deprivation of liberty than is reasonably
necessary even if it nominally requires only an "assessment." See 18 U.S.C. § 3583(d)(2). He
points to United States v. Thomas, an unpublished Sixth Circuit case in which the court found a
greater deprivation of liberty than was reasonably necessary, even though the district court had
not imposed the special condition requested – which would have required participation in a sex
offender treatment program – and instead required only participation in an assessment program.
See 212 F. App'x at 487-88. That court reasoned: "As recognized by both the probation officer
and district court, the assessment program is an intensive program. It will require Thomas to
attend weekly group and individual counseling sessions over a period of approximately three
months, and require him to submit to a polygraph. The imposition of the assessment is in many
ways no less stringent than requiring sex-offender treatment." Id.
13
Here, too, the assessment would be "intensive": Doe would be required to complete a
questionnaire probing every aspect of his sexual history, submit to a polygraph, attend a group
orientation session, and attend as many as sixteen individual sessions with a therapist. If
deciding what kind of assessment condition to impose in the first instance, the Court might have
chosen one less intensive than that imposed by the Parole Commission. But the Court is not now
faced with that task, and instead must only determine whether the Parole Commission abused its
discretion by imposing a condition of supervised release that involved a greater deprivation of
liberty than was reasonably necessary.
The Court has already concluded that some assessment is warranted. At the motions
hearing, defendants' counsel said that a searching probe into Doe's sexual history and thoughts is
the only way to determine whether he poses any risk or needs treatment. 6/21/13 Tr. 40-42, 54.
Although defendants have not made clear why the particular sexual history questionnaire used by
CCFS is necessary to make an informed determination in this case, or why a polygraph is
necessary to test Doe's responses to the questionnaire, or why as many as sixteen sessions may be
necessary to complete the assessment process, allowing discovery on these matters would, at
best, bring forward differing opinions about, say, the need to ask a particular question or the
added value of a polygraph. But that would not put the Court in a better position to draw a
principled line between aspects of the assessment that are reasonably necessary and those that are
not. And, moreover, the Court finds no genuine dispute that the sexual history questionnaire, the
polygraph, and the assessment sessions are all aimed at assessing Doe's need for treatment. Doe
has not questioned the usefulness or reliability of these tools in determining sex offender risk, nor
has he suggested that an equally effective assessment could be done through alternative means.
Instead, Doe focuses on the "deprivation of liberty" that purportedly will result if the
14
assessment goes forward. See 18 U.S.C. § 3583(d)(2); Pl.'s PI Mot. 20-21; Pl.'s Reply 18-19.
Doe does not contend that any one aspect of the assessment, standing alone, deprives him of a
liberty interest. In the Court's view as well, no single aspect impermissibly intrudes on Doe's
liberty. A psychosexual assessment and polygraph, for example, are intrusive into the mind, but
they are "different in kind" from the kind of intrusions that have been found to implicate
"significant liberty interest[s]." See United States v. Stoterau, 524 F.3d 988, 1006 (9th Cir. 2008)
(comparing Abel testing to polygraph testing and concluding that Abel testing "does not
implicate a particularly significant liberty interest"); see also, e.g., United States v. Mike, 632
F.3d 686, 695-96 (10th Cir. 2011) (recognizing that conditions requiring residential treatment or
penile plethysmograph testing implicate significant liberty interests); United States v. Weber, 451
F.3d 552, 567-68 (9th Cir. 2006) (listing self-reporting interviews and polygraph testing among
"alternatives available in the treatment of sexual offenders that are considerably less intrusive
than plethysmograph testing"). Doe contends that the assessment as a whole, if not any particular
part, does implicate "significant liberty interests." See Pl.'s PI Mot. 21. As explained below,
however, the Court disagrees: the challenged condition does not cross the line between
assessment and treatment, nor does it implicate a particularly significant liberty interest.
Accordingly, and because a thorough assessment is justified in this case, the Court concludes that
the assessment condition "involves no greater deprivation of liberty than is reasonably
necessary." See 18 U.S.C. § 3583(d)(2).
II. Due Process
The Fifth Amendment to the U.S. Constitution protects against deprivations of "life,
liberty, or property, without due process of law." U.S. Const. amend. V. A procedural due
process violation occurs when government action deprives a person of a liberty or property
15
interest without affording appropriate procedural protections. See Atherton v. D.C. Office of the
Mayor, 567 F.3d 672, 689 (D.C. Cir. 2009). A substantive due process violation occurs only
when government action interferes with a fundamental right or liberty interest. See Abigail
Alliance for Better Access to Developmental Drugs v. von Eschenbach, 495 F.3d 695, 702 (D.C.
Cir. 2007) (en banc). Doe raises both procedural and substantive due process claims in this
case.7
A. Procedural Due Process
In addressing a procedural due process challenge, the Court must first determine whether
the plaintiff has been deprived of a protected liberty or property interest. See Gen. Elec. Co. v.
Jackson, 610 F.3d 110, 117 (D.C. Cir. 2010). Only after finding the deprivation of a protected
interest does the Court determine whether the government's procedures satisfied due process.
See id. At this second step, the Court applies "the now-familiar Mathews v. Eldridge balancing
test, considering (1) the significance of the private party's protected interest, (2) the government's
interest, and (3) the risk of erroneous deprivation and 'the probable value, if any, of additional or
substitute procedural safeguards.'" Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
1. Doe's claimed liberty interests
Although individuals on probation or supervised release "'do not enjoy the absolute
liberty to which every citizen is entitled,'" they nevertheless may have liberty interests protected
by the Due Process Clause. See Wills, 882 F. Supp. 2d at 75 (quoting Griffin v. Wisconsin, 483
U.S. 868, 874 (1987)); accord Morrissey v. Brewer, 408 U.S. 471, 480-82 (1972). Doe asserts
that the challenged condition implicates three significant liberty interests: his right to refuse
7
Doe asserts a procedural due process claim against the Parole Commission and a
substantive due process claim against both the Parole Commission and CSOSA. Compl. 15-16.
16
mental health treatment, his right to avoid the stigma of being classified as a sex offender, and
his right to privacy in sexual matters.
First, Doe tries to invoke his interest in refusing unwanted mental health treatment – "in
the form of an onerous 'assessment' that is indistinguishable from treatment." See Pl.'s PI Mot.
22. The Supreme Court has recognized a protected liberty interest in refusing medical treatment.
See Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 278 (1990). Doe's problem, however, is
that he cannot identify any "treatment" to be refused. Attempting to equate assessment with
treatment, Doe again cites Thomas, in which the Sixth Circuit found the assessment at issue to be
"intensive" and "in many ways no less stringent than" treatment. See Pl.'s PI Mot. 27 (citing 212
F. App'x at 487-88). As Doe rightly points out, he would be subjected to a psychosexual
assessment, a polygraph, a group orientation session, and up to sixteen individual sessions. See
id. From Doe's perspective, all of that may be quite intensive and nearly as unwelcome as
treatment. But "treatment" connotes an active step – doing something to "treat" or remedy an
identified problem – that is missing here. The assessment will only seek to identify the problem,
if any, and will stop short of doing anything about it: the psychosexual assessment and
questionnaire are designed to gather information (albeit very private information); the orientation
serves merely to give an overview of the assessment process and forms to be signed and address
any general questions or concerns, see Brennan Decl. ¶ 11; and the individual sessions, no matter
how many are needed to complete the assessment, are simply not for purposes of changing Doe's
behavior, see Brennan Supp'l Decl. ¶¶ 7, 9, 11 (in individual assessment sessions, therapist
"seeks to identify known risk factors related to sex offending behavior and determine if there is a
need for sex offender treatment"). There is, then, no genuine dispute that the assessment process
lacks any sort of behavior-modifying component. Hence, the Court concludes that Doe's liberty
17
interest in refusing unwanted medical treatment is not implicated here.
Doe next argues that the sex offender assessment condition implicates his liberty interest
in avoiding the stigma of sex offender classification and treatment. In Vitek v. Jones, a case
involving a prisoner's due process challenge to his transfer to a mental hospital, the Supreme
Court held that the "stigmatizing consequences" of the transfer, along with the prisoner's
subjection to "mandatory behavior modification as a treatment for mental illness," were "the kind
of deprivations of liberty that requires procedural protections." 445 U.S. 480, 494 (1980). In
evaluating due process challenges to sex offender conditions by prisoners and parolees, several
courts of appeals, and one judge in this district, have applied Vitek to find a protected liberty
interest in avoiding the stigma associated with sex offender classification and treatment. See
Wills, 882 F. Supp. 2d at 75-76 (discussing Vitek and cases from Third, Fifth, Ninth, Tenth, and
Eleventh Circuits).
In these cases, that combination – of classification and treatment – was critical. In Wills,
the plaintiff, who was serving a term of supervised release for drug offenses and had never been
convicted of a sex offense,8 was transferred to CSOSA's Sex Offender Unit and subjected to the
same "Special Sex Offender Aftercare Condition" that CSOSA initially requested for Doe. See
882 F. Supp. 2d at 64-65 & n.1; Compl., Ex. 5. By the time the plaintiff filed suit, he had already
undergone a psychosexual assessment, polygraph, and several sex offender treatment sessions.
Wills, 882 F. Supp. 2d at 66. He had also been forced to disclose the nature of his sexual offense
to his then-girlfriend and acknowledge his need for sex offender treatment. Id. at 65-66. The
8
In 1984, twenty-five years before the imposition of a sex offender condition on his
supervised release, the plaintiff had been charged with assault with intent to rape; the charge had
been dismissed in 1986. See Wills, 882 F. Supp. 2d at 64, 67.
18
court found that the Parole Commission's imposition of the sex offender condition "implicated
the plaintiff's liberty interest by (1) classifying the plaintiff as a sex offender, (2) publicizing his
sex offender status, and (3) mandating sex offender therapy." Id. at 76. These three factors
"jointly" resulted in "stigmatizing consequences," the court said, as first articulated by the
Supreme Court in Vitek and then applied to sex offender classification and conditions by five
courts of appeals. Id. (internal quotation marks omitted).
In the circuit decisions referenced in Wills, the courts similarly found a liberty interest
implicated by the combination of being labeled or classified as a sex offender and having to
undergo treatment, therapy, or behavior modification of some sort. See Renchenski v. Williams,
622 F.3d 315, 328 (3d Cir. 2010) (stating that "the stigmatizing effects of being labeled a sex
offender, when coupled with mandatory behavioral modification therapy, triggers an independent
liberty interest"); Coleman v. Dretke ("Coleman I"), 395 F.3d 216, 223 (5th Cir. 2004) (finding
"a liberty interest in freedom from the stigma and compelled treatment on which [prisoner's]
parole was conditioned"), reh'g en banc denied, 409 F.3d 665 (5th Cir. 2005); Chambers v. Colo.
Dep't of Corr., 205 F.3d 1237, 1238, 1242-43 (10th Cir. 2000) (finding liberty interest in
avoiding sex offender label and treatment conditioned on prisoner's admission that he committed
a sex offense); Kirby v. Siegelman, 195 F.3d 1285, 1288, 1291-92 (11th Cir. 1999) (per curiam)
(finding liberty interest in not being classified as sex offender, where classification meant
mandatory participation in group therapy sessions to be eligible for parole); Neal v. Shimoda,
131 F.3d 818, 830 (9th Cir. 1997) ("[T]he stigmatizing consequences of the attachment of the
'sex offender' label coupled with the subjection of the targeted inmate to a mandatory treatment
program whose successful completion is a precondition for parole eligibility create the kind of
deprivations of liberty that require procedural protections.").
19
As already discussed, however, the assessment condition here does not require Doe to
admit his need for treatment, undergo any treatment or therapy, or otherwise change his behavior
in any way. Hence, the authority he relies on – Wills and the circuit decisions cited therein –
does not compel the conclusion that Doe has a protected liberty interest here. Compare Wills,
882 F. Supp. 2d at 77 ("[N]either party disputes that the [sex offender condition] 'required' that
the plaintiff, who was not a sex offender, 'undergo sex offender treatment.'").
Even assuming that classification plus something less than treatment can implicate a
liberty interest, the degree to which Doe has been "classified" as a sex offender is not clear.
Defendants insist that Doe "has not been classified as a sex offender," and Brennan has declared
as much. See Defs.' Reply 4-5 (citing Supp'l Brennan Decl. ¶ 19). But in Wills, the defendants
had similarly argued that the plaintiff was not "formally classified as a sex offender," and the
court disagreed, explaining: "The defendants assigned the plaintiff to CSOSA's Sex Offender
Unit; repeatedly coerced him to admit his 'need' for the mandated sex offender treatment;
routinely generated 'Adult Sex Offender Treatment Services Progress Reports' for the plaintiff;
and compelled the plaintiff to disclose the nature of his 'sex offense' to his then-girlfriend." 882
F. Supp. 2d at 76. Here, not all of these factors are present, but like the plaintiff in Wills, Doe
has been assigned to CSOSA's Sex Offender Unit. Even if that fact is not made public –
defendants emphasize, for example, that the door of the Sex Offender Unit is labeled "Special
Supervision Office" – Doe himself is fully aware of it and may well feel a stigma because of it.
See Supp'l Brennan Decl. ¶ 32; see also Renchenski, 622 F.3d at 327 (concluding that
classification of plaintiff "even as a possible sex offender" was stigmatizing).
Defendants assert, however, that neither Doe's supervision in the Sex Offender Unit nor
his juvenile adjudication will be disclosed. They say the following about CSOSA's disclosure
20
policy: a person undergoing a sex offender assessment is asked to sign a waiver of "Limited
Confidentiality," which allows information about the person's assessment or treatment to be
shared with only his or her therapist and supervision team; collateral contacts may not obtain
such assessment or treatment information without the person's written consent, which is not
required to be given; and, though CSOSA's manual does not specifically address juvenile
adjudications, CSOSA is bound by confidentiality requirements as to any such adjudications and
hence does not disclose information about a person's confidential juvenile adjudications without
his or her written consent. See Brennan Decl. ¶ 18; Supp'l Brennan Decl. ¶¶ 26-27, 37; see also
6/21/13 Tr. 76 (Doe's supervision in Sex Offender Unit disclosed "only [to] individuals in
CSOSA with a need to know").
Doe counters that CSOSA's manual indicates that disclosure of a supervisee's history is "a
fundamental aspect" of supervision in the Sex Offender Unit and that the manual makes no
exception for juvenile adjudications. In addition, Doe points to Wills, in which the plaintiff, who
had not been convicted of a sex offense and was not required to register as a sex offender, was
required to disclose the nature of his prior sex offense to his then-girlfriend months before his
assessment even began. See Pl.'s Surreply [ECF 34] 9 (citing Wills, 882 F. Supp. 2d at 65). This
anecdotal evidence is somewhat troubling and arguably "in tension" with defendants' assertion
that a supervisee's prior sex offense will be disclosed only if he or she is a registered sex
offender. See id.; Brennan Decl. ¶ 15; see also Supp'l Brennan Decl. ¶ 34. But significantly, the
prior offense at issue in Wills was an adult one, in contrast to the juvenile adjudication at issue
here, and according to defendants, CSOSA's disclosure policy distinguishes between adult and
juvenile criminal history. See Supp'l Brennan Decl. ¶¶ 35, 37. The Court reads the Brennan
declarations to say that the confidentiality of juvenile adjudications trumps any otherwise-
21
applicable CSOSA policies, and there is no hint that CSOSA has ever disclosed (or even come
close to disclosing) information about Doe's juvenile offense to anyone outside of CSOSA or
CCFS. Hence, the Court finds no genuine dispute that the sex offender assessment condition will
not result in "the revelation of the details of [Doe's] juvenile offense," which is of "primary
concern" to Doe. See Pl.'s Surreply 7.
Of secondary concern to Doe is the revelation of assessment or treatment information.
See id. On this score, Doe's concern is likely warranted. First, as part of the assessment, Doe
will have to attend a group orientation session. Although no personal information will be shared
at the orientation, the fact that Doe is undergoing a sex offender assessment will be disclosed to
the other attendees. In addition, the incident that occurred last Halloween at Doe's grandmother's
house constitutes a disclosure of sorts. Officers told Doe, in front of his grandmother, that he
could not go outside on Halloween because he was a registered sex offender. Compl. ¶ 54.
Presumably, that happened because Doe was being supervised in the Sex Offender Unit.
Defendants say the incident was an "anomaly" and that "[i]t is not what is going to happen going
forward in terms of disclosure," but such statements do not give the Court complete confidence.
6/21/13 Tr. 43. The chapter of CSOSA's manual on supervision in the Sex Offender Unit does
not generally distinguish between individuals undergoing an assessment and those undergoing
treatment, between individuals who are required to register as sex offenders and those who are
not, or between individuals who committed a sex offense as an adult and those who committed a
sex offense as a child. Although the Halloween incident perhaps should not have happened
under CSOSA's stated policy, see Supp'l Brennan Decl. ¶¶ 35, 37, it did in fact happen, and the
manual does not make clear what protocols should apply in supervising a person like Doe. Thus,
some other "anomaly" could easily occur, and the disclosure could be to a larger or different
22
audience (such as an employer) and could have significant stigmatizing effects.
The sex offender assessment condition, then, may result in a limited disclosure – of the
fact that Doe is being supervised as a sex offender or potential sex offender or the fact that he has
some sort of sexual misconduct in his past, or both. But any disclosure is likely to be limited,
and will not be accompanied by treatment. To the extent that a liberty interest in avoiding the
stigma of sex offender classification is implicated, then the process due will not be as great as in
Vitek and the other cases relied on by Doe.
The final liberty interest claimed by Doe is based on his right to sexual privacy. Relying
on Whalen v. Roe, 429 U.S. 589 (1977), Doe first argues that the sex offender assessment
condition implicates his interest in "'avoiding disclosure of personal matters'" because the
psychosexual assessment would delve deeply into Doe's sexual history, thoughts, and practices.
See Pl.'s PI Mot. 28-29 (quoting Whalen, 429 U.S. at 599).
Although the Supreme Court has on several occasions referred to the kind of privacy
interest asserted by Doe, it has declined to decide whether there is a constitutional privacy
interest in avoiding disclosure of personal matters. See NASA v. Nelson, 131 S. Ct. 746, 751,
756 (2011) (discussing Whalen, 429 U.S. at 599-600, 605, and Nixon v. Administrator of
General Services, 433 U.S. 425, 457 (1977)). The D.C. Circuit, moreover, has expressed "grave
doubts" about the existence of "a constitutional right of privacy in the nondisclosure of personal
information." Am. Fed'n of Gov't Emps. v. HUD, 118 F.3d 786, 791 (1997). And it has stated
that, assuming such a right exists, "the individual interest in protecting the privacy of the
information sought by the government is significantly less important where the information is
collected by the government but not disseminated publicly." Id. at 793; see also Nelson, 131 S.
Ct. at 751, 761 (assuming without deciding that informational privacy right existed but
23
concluding that right was not violated by challenged background check inquiries, in light of
government interests at stake and "substantial protections against disclosure to the public").
Here, even assuming that a constitutionally protected interest in nondisclosure of personal
information exists, Doe does not have an interest of this sort that can support a due process
claim. The interest he asserts is based on the intrusive questions that will be asked of him as part
of the assessment. See Pl.'s PI Mot. 29. But his answers to these questions will be used solely
for the purpose of determining whether and to what degree he needs treatment; they will not be
publicly disclosed in any way. In Goings v. Court Services & Offender Supervision Agency, the
court rejected the plaintiff's argument that a special condition requiring sex offender evaluation
and treatment implicated his privacy interest in avoiding disclosure of personal matters, stating:
"Although [the special condition] requires the plaintiff to undergo sex offender treatment, which
may involve demands for him to divulge deeply private information, this information is to be
used for the purpose of the plaintiff's treatment and not for public dissemination." 786 F. Supp.
2d 48, 75 (D.D.C. 2011). Doe tries to distinguish Goings by arguing that there will be "public
dissemination" in this case – pursuant to CSOSA's policy of disclosing supervisees' sex offenses
to their collateral contacts and through a "group therapy session." See Pl.'s PI Mot. at 30 & n.24.
But, as discussed above, Doe's juvenile adjudication will remain confidential by law, and no
personal information will be disclosed at the group orientation. See D.C. Code § 16-2331(b);
Brennan Decl. ¶¶ 11, 18 (stating that information about Doe's juvenile adjudication is protected
from disclosure "even if such protections are not spelled out in the manual"). And, perhaps more
importantly, the information that Doe claims will be made public (the details of his juvenile
offense) is not the same information he seeks to keep private (details about his personal sexual
experiences and innermost thoughts). Accordingly, because defendants' reason for conducting a
24
detailed probe into Doe's sexual history is a legitimate one, and because Doe's answers to the
sexual history questionnaire will be protected from disclosure, he does not have a liberty interest
in informational privacy that would be violated by the challenged condition. See Nelson, 131 S.
Ct. at 761-64.
Doe also argues that the condition would interfere with his right to independently make
"certain kinds of important decisions." See Whalen, 429 U.S. at 599-600. He says that CSOSA's
assessment is structured such that his "perfectly legal sexual decisions" may cause him to suffer
adverse consequences, in the form of further assessment or treatment. Pl.'s PI Mot. 31. But this
statement is little more than speculation, and if in fact CSOSA determines that Doe's past sexual
decisions make further assessment or treatment necessary, it will be because something about
them indicates a possible risk of future sexual misconduct. Taking these and other steps to
prevent Doe from committing unlawful sexual acts will not deprive him of his right to make
lawful sexual decisions.
2. What process is due
Because Doe may have a liberty interest in avoiding the stigma of sex offender
classification, the Court will turn to the question of what process is due. Defendants argue as an
initial matter that, because Doe was adjudicated of a sex offense, "'no further process [was] due
before imposing sex offender conditions.'" See Def.'s MSJ 24 (quoting Meza v. Livingston, 607
F.3d 392, 401 (5th Cir. 2010)); see also Neal, 131 F.3d at 831. Although Doe's juvenile
adjudication may bear on the strength of his liberty interest, if any, in avoiding stigma, the Court
is unwilling to conclude that it means that Doe was due no process at all. See Goings, 786 F.
Supp. 2d at 74 n.15 (finding no support in this circuit for proposition that "those convicted of sex
offenses have no liberty interest in being free from sex offender conditions").
25
"The fundamental requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner." Mathews, 424 U.S. at 333 (internal quotation
marks omitted). Due process, however, is not "a technical conception with a fixed content
unrelated to time, place and circumstances," but rather is "flexible" and will call for different
procedural protections depending on the particular situation at hand. Id. at 334 (internal
quotation marks omitted). To determine the kind of notice and hearing required in this case, the
Court must balance (1) the significance of Doe's liberty interest, (2) the government's interest,
and (3) the risk of erroneous deprivation and the value of additional safeguards. See id. at 334-
35.
Doe asserts that, in imposing the sex offender assessment condition, defendants gave him
"no process at all." See Pl.'s PI Mot. 33. That is not entirely accurate, however. He was notified
of CSOSA's initial request to modify the conditions of his supervised release. Compl. ¶ 43. His
counsel submitted a written objection to such modification, which apparently had some effect, as
CSOSA changed its request – instead of asking for sex offender "testing and treatment," as it had
in its initial request, CSOSA asked only for an assessment. Id. ¶¶ 42, 44-46; see also Pl.'s Opp'n
& Reply 29-30 (surmising that, but for Doe's counsel's intervention, initially requested condition
would have been imposed). The form notifying Doe of the second request for modification also
notified him that he had ten days to object or comment to the Parole Commission, and Doe
initialed next to an option stating, "I object to the proposed modifications of conditions and my
reasons are stated on the reverse side of this form." See Defs.' MSJ, Ex. 11 [ECF 22-10]
(initialed by Doe September 26, 2012). But neither he nor his counsel provided reasons or
evidentiary support for this objection. His counsel's objection letter, sent one week prior,
challenged the imposition of the initially proposed condition requiring assessment and treatment,
26
and raised objections to treatment specifically. See Compl. ¶ 44; id., Ex. 10 [ECF 2-8] 8-11.9
Doe was thereafter notified that the later-requested sex offender assessment condition was being
imposed and was told that he could not appeal. He filed this lawsuit in November 2012. In
January 2013, Doe was told that he could appeal but did not have to for administrative
exhaustion purposes. See Pl.'s Opp'n & Reply, Ex. 8. Doe signed his name on the appeal form,
but again did not provide any supporting materials. See id.
To assess the sufficiency of this process, the Court looks to the Mathews factors. As
noted, any liberty interest Doe has is limited to avoiding the stigma that results from being
classified as a sex offender. However, the Court concludes that this interest is not particularly
significant for several reasons. First, treatment is not a "corresponding condition[]" of Doe's
supervision in the Sex Offender Unit or the sex offender assessment condition. See Wills, 882 F.
Supp. 2d at 75-77; see also Johnson, 697 F.3d at 1251 (stating that an assessment is "a much less
significant restraint" on liberty than treatment); Renchenski, 622 F.3d at 329-30 (noting with
approval other courts' focus on "highly stigmatizing" and "intrusive nature" of sex offender
9
Doe complains that his counsel's September 19, 2012 objection letter was "apparently
never considered" by the Parole Commission, as it did not appear in the Parole Commission case
analyst's memorandum and was improperly rejected as an "appeal." See Pl.'s PI Mot. 32-33; see
also Compl. 13 n.6; id., Ex. 12 [ECF 2-9]. But the letter pre-dated CSOSA's request for the
condition actually imposed, and following that request, Doe did not attach or reference his
counsel's letter in objecting to that condition, nor did his counsel re-submit an objection to the
later-requested assessment condition. See Compl., Ex. 13 (case analyst's memorandum noting
that Doe objected to modification but "did not support his objection with any statements or
documentation within the required time frame"). Although it could perhaps be inferred that Doe
objected to the second proposed condition for some of the same reasons set forth in his counsel's
letter objecting to the first proposed condition, he did not make this clear to the Parole
Commission. And despite mischaracterizing the objection letter as an "appeal," the Parole
Commission apparently considered it anyway (though belatedly, after the decision to order the
assessment condition had been made). See Compl., Ex. 12 ("Your appeal has been referred to
the Commission's Case Operations section for review and a recommendation on whether your
case should be reopened for new information of substantial significance.").
27
treatment). Because there is no treatment here, only an assessment, there is less potential harm
from classification as a sex offender; hence, the liberty interest in avoiding stigma, if any, is less
significant.10
It also bears noting, moreover, that, unlike the plaintiffs in Wills and the appellate cases
finding a liberty interest implicated by sex offender classification, Doe effectively pled guilty to a
sex offense. See e.g., Renchenski, 622 F.3d at 320; Coleman I, 395 F.3d at 225; Kirby, 195 F.3d
at 1287; Wills, 882 F. Supp. 2d at 62; see also Jennings v. Owens, 602 F.3d 652, 658-59 (5th Cir.
2010) ("The conclusion that the sex offender therapy condition stigmatized Coleman rested
heavily upon the fact that he had never been convicted of a sex offense – therefore, the label 'sex
offender' was false as applied to him." (discussing Coleman v. Dretke ("Coleman II"), 409 F.3d
665, 668 (5th Cir. 2005) (per curiam))). Although a juvenile adjudication is "not a conviction"
under District of Columbia law, see D.C. Code § 16-2318, any stigma resulting solely from the
imposition of the assessment condition is lessened by the fact that Doe admitted to committing a
sex offense in a judicial proceeding. See Jennings, 602 F.3d at 659 (stating that imposition of
sex offender conditions "would indeed cause stigma," if imposed on a person who had never
been convicted of a sex offense, but finding no liberty interest infringed because the plaintiff had
been convicted of a sex offense).11 As for stigma from disclosure, any disclosure of Doe's sex
offender "status" should be limited to the context of the group orientation session, at which the
10
Cf. Gen. Elec., 610 F.3d at 121 (stating rule of Paul v. Davis, 424 U.S. 693, 704-06
(1976), that "stigma alone is insufficient to invoke due process protections").
11
The plaintiff in Jennings had committed aggravated kidnaping of an eight-year-old boy
when he was fifteen years old. See 602 F.3d at 654. Unlike Doe, Jennings had been certified as
an adult and sentenced to eight years' imprisonment. See id. And Jennings apparently
committed a subsequent offense involving a thirteen-year-old boy when he was twenty-one. See
id.
28
fact of Doe's assessment will be disclosed to a small group of people. An "anomaly" such as the
Halloween incident should not happen again, but even if it did, it would pose a less serious
concern than if Doe's confidential juvenile records were disclosed, which Brennan has confirmed
will not happen. See Brennan Decl. ¶ 18; Supp'l Brennan Decl. ¶ 37.
Finally, the assessment is only a preliminary step. It is possible that defendants will
determine that Doe does not need treatment; and should they determine that he does need
treatment, greater due process protections will be triggered. Hence, to the extent Doe has been
classified as a sex offender (by virtue of being supervised in the Sex Offender Unit or the
imposition of the assessment condition), the liberty interest implicated is not the kind of interest
that merits the full panoply of due process protections.
The second Mathews factor is the government's interest. It is beyond dispute that
defendants have an important interest in determining whether the supervised releasees they
oversee are at risk of committing a sex offense. Defendants argue that it would be "impractical
and overly burdensome" to hold a full-fledged hearing as a matter of course every time they seek
to assess a releasee's risk. See Defs.' Supp'l Mem. [ECF 36] 4. They correctly note that in many
cases, such as where a releasee has a recent rape conviction, the need for an assessment will be
"obvious." See id. Hence, defendants reason, the written notice and comment procedures
currently in place are appropriate. See 28 C.F.R. § 2.204(c)(2)(i) (providing that releasee shall be
notified of proposed modification to conditions of release and given ten days to comment and
that, after ten-day comment period, Parole Commission shall have twenty-one days to decide
whether to order modification). Defendants thus raise legitimate concerns about the fiscal and
administrative burdens that an across-the-board hearing requirement would entail.
The third Mathews factor relates to the risk of erroneous deprivation and the probable
29
value of additional procedural safeguards. Defendants argue that providing more process at this
stage would do little to improve the accuracy of their determination. See Defs.' Supp'l Mem. 4.
They say that the evidence relied on is generally undisputed, and that a hearing would likely
consist of "contradictory testimony between witnesses offering opinions as to the need for an
evaluation." See id. The documentary evidence of Doe's past sexual behavior is generally
undisputed,12 and does not raise any issues of "witness credibility and veracity." See Mathews,
424 U.S. at 343-44. Accordingly, the Court agrees that a hearing would offer less value at the
pre-assessment stage than at the post-assessment, pre-treatment stage. A hearing at that later
stage would involve more than a battle of opinions about Doe's undisputed record and would
allow Doe to challenge any judgment by a psychologist or CSOSA that he presently needs
treatment.
Defendants have submitted to the Court the Parole Commission's proposed new rules
regarding the imposition of new conditions of release for sex offenders. See 78 Fed. Reg. 11,998
(Feb. 21, 2013). For an offender on supervised release who, like Doe, has not been convicted of
12
Doe does not contest the accuracy of the facts the Parole Commission had – and
actually relied on – in imposing the condition. He does, however, urge that the Parole
Commission did not have before it all of the evidence now before the Court, particularly the
court-ordered psychological evaluation. See 6/21/13 Tr. 6. He appears to be correct: CSOSA
informed the Parole Commission that the evaluation took place, but quoted selectively from the
evaluation and did not attach a full copy. Compl., Ex. 11. But as noted, neither the fact of the
evaluation nor the psychology intern's conclusions is really material to whether the condition
imposed was reasonably related to the § 3553 factors. See 6/21/13 Tr. 6. And in most cases, as
here, the basis for imposing an assessment condition will be a supervised releasee's undisputed
juvenile and/or adult criminal history. That is not to say, however, that there is not value to be
gained through improvements to defendants' current process for modifying conditions of release
– for example, better communication between CSOSA and the Parole Commission or ensuring
that supervised releasees are given reasons for any conditions imposed.
30
a sex offense,13 the proposed rules would allow the Parole Commission to impose a condition for
sex offender assessment "after using the notice and 10-day comment procedure" that was used in
this case. See id. at 11,999, 12,001 (proposed 28 C.F.R. § 2.204(d)(2)(i)). If, after the
assessment, the Parole Commission determined that treatment appeared warranted and the
offender objected, a hearing would be conducted. Id. at 11,999. The offender would be
provided: disclosure of the information supporting imposition of a treatment condition, the
opportunity to testify and present witnesses and evidence, the right to counsel, written findings
regarding the decision, and in most cases, if requested, the opportunity to confront and cross-
examine a person (i.e., a psychologist) who has given information relied on to support imposition
of the condition. Id. at 12,001 (proposed 28 C.F.R. § 2.204(d)(2)(ii)). The proposed rules would
also give offenders on supervised release the right to appeal post-release modifications of release
conditions. See id. at 11,999.
Weighing the Mathews factors, the Court concludes that Doe received constitutionally
adequate process here. The challenged condition does not implicate a particularly significant
liberty interest; defendants have made a reasonable judgment that, where a person has committed
a sex offense in the past, an assessment condition aimed exclusively at determining that person's
future risk may be imposed after giving notice and an opportunity for comment; and Doe was
given such notice and opportunity.14 In the Court's view, defendants' proposed approach to
13
See 42 U.S.C. § 16911(8) (defining "convicted," used with respect to a sex offense, to
include "adjudicated delinquent as a juvenile for that offense, but only if the offender is 14 years
of age or older at the time of the offense").
14
Regrettably, the Parole Commission's Notice of Action did not state any reasons for its
decision to impose the assessment condition. See Compl., Ex. 1 (space for "REASONS:" left
blank). This fact does not change the Court's conclusion, however, because, as evidenced by his
counsel's objection letter, Doe knew that the basis for requiring an assessment was his juvenile
31
assessing and treating supervised releasees with a history of sex offenses strikes a reasonable
balance. Compare Wills, 882 F. Supp. 2d at 78 (finding process inadequate where plaintiff "was
provided no notice of any sort prior to the Commission's initial imposition of the condition"
(internal quotation marks omitted)). Deferring a full-fledged hearing (and the accompanying
rights to testify, present evidence, confront and cross-examine witnesses, and be represented by
counsel) until after treatment has been recommended would account for both the heightened
individual interest implicated by a treatment condition and the government's interest in protecting
the public while at the same time making efficient use of its limited resources. See Goings, 786
F. Supp. 2d at 77-78 (noting that requiring CSOSA to hold a "post-risk assessment hearing" "may
be acceptable" for due process purposes, but finding that plaintiff was not given a meaningful
opportunity to be heard "before, during or after the initial risk assessment").
In concluding that Doe received constitutionally adequate process, the Court does not rely
on Doe's purported failure to pursue an administrative appeal. See Defs.' Supp'l Mem. 3-4. Doe
was at first told that the decision to impose the assessment condition was not appealable and then
told that the decision was appealable but that he did not have to appeal. He cannot be penalized
for not vigorously asserting rights that he learned of belatedly and was told were optional.
Moreover, as Doe points out, defendants expressly waived "any objection based on failure to
exhaust administrative remedies," Defs.' MSJ 4 n.1, and the Parole Commission's current
regulations do not give supervised releasees a right to appeal a change in their conditions of
release. See Pl.'s Resp. to Defs.' Supp'l Mem. [ECF 38] 2. Nevertheless, Doe was given the
process he was due. Because he is not entitled to a hearing at this time, sending this case back to
sex offense. Hence, Doe was not prejudiced by the Parole Commission's failure to tell him the
reasons for its decision.
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the Parole Commission would accomplish nothing.
If Doe undergoes the sex offender assessment and it is determined that he needs
treatment, it is not clear what process he would be given before treatment is imposed, as the
proposed rules submitted by defendants have not been implemented. As defendants noted at the
motions hearing, that issue is not now before the Court. It is not irrelevant to the Court's
decision, however. The Court's conclusion that Doe's due process rights have not been violated
is premised largely on its finding that the assessment condition does not require or authorize
treatment, and also on its determination that defendants' proposed approach to imposing sex
offender conditions of supervised release – affording notice and an opportunity for comment
before assessment and then affording a full-fledged hearing before treatment – is reasonable.15
Should the factual circumstances be different than defendants have represented them to be, the
Court might reach a different conclusion.
B. Substantive Due Process
Doe claims that defendants' imposition of the sex offender assessment condition violates
his substantive due process rights by "infring[ing] on [his] fundamental rights to refuse unwanted
mental health treatment and to privacy in sexual matters." Compl. ¶ 72. But for the same
reasons that the condition does not implicate protected liberty interests grounded in unwanted
mental health treatment or sexual privacy, it does not infringe on any fundamental rights. See
Abigail Alliance, 495 F.3d at 702 (noting that "the Supreme Court has cautioned against
15
Although defendants do not guarantee that Doe would be given a hearing before being
subjected to treatment, they stress the difference between assessment and treatment in their
briefing and appear to accept that a treatment condition would implicate a protected liberty
interest. Defendants also appear to recognize the practical benefit from conducting hearings at
the post-assessment, pre-treatment stage, as opposed to the pre-assessment stage, as they state
that a hearing "at this [earlier] stage" would be unduly burdensome. See Defs.' Supp'l Mem. 4.
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expanding the substantive rights protected by the Due Process Clause"); see also Coleman I, 395
F.3d at 223 (finding procedural due process violation based on liberty interest in avoiding sex
offender classification and compelled treatment but finding no substantive due process violation).
To reiterate, the condition does not require treatment, and Doe's right to privacy will not be
infringed because his juvenile adjudication is protected from disclosure by law. Accordingly, the
Court concludes that defendants are entitled to summary judgment on Doe's substantive due
process claim.
CONCLUSION
Because the Court finds that defendants are entitled to judgment as a matter of law on
Doe's statutory and due process claims, their motion for summary judgment will be granted;
because the Court has resolved the merits entirely in favor of defendants, Doe's motion for a
preliminary injunction will be denied. A separate order accompanies this memorandum opinion.
/s/
JOHN D. BATES
United States District Judge
Dated: August 5, 2013
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