Exculpatory No and Parole
March 08, 2005
Will criminal defense and civil rights lawyers begin speaking of a post-Dotson world?
In Dotson, you'll remember, the Court held that a state prisoner may file a section 1983 action challenging parole procedures, so long as the prisoner is not suing for release from prison and is not suing for return of good time credits as such. But the prisoner may file a 1983 suit challenging the procedures used to deprive him of his good-time credits or to deny him parole; and a trial court may properly demand that the prisoner receive fresh - and constitutionally sound - parole hearing.
One issue ripe for a Dotson challenge is the pernicous practice of holding a convict's assertion of innocence against him -- Parole boards universally punish convicts for proclaiming innocence. Their reasoning is that a convict who proclaims his innocence has presumably not accepted responsibility for his conduct, and is therefore not rehabilited. Only rehabilitated convicts are relased.
In light of the well-documented problem of wrongful convictions, this presumption is unsound. There are, indeed, thousands of innocent people in prison. Worst of all is that an innocent convict can not lie by admitting guilt before a parole board without killing his post-conviction remedies. It's a true Hobson's choice.
In light of Dotson, using a defendant's proclamations of innonece against him may be unconstitutional. At least prisoners may begin challenging this presumption against rehabilition.
I'm interested in hearing lawyers handling post-conviction matters -- Are you currently using section 1983 to challenge parole procedures? Has Dotson changed your position, i.e., had you not thought of filing a 1983 action before Dotson, but now you are researching potential challenges?