Evans v. Pennsylvania Board of Probation & Parole

820 A.2d 904

• Court: Commonwealth Court of Pennsylvania
• Decided: April 25, 2003
• Status: Published

Opinions

OPINION BY

Judge LEAVITT.¹

Warren M. Evans (Petitioner) filed a petition for a writ of mandamus on his own behalf (Petition), which we will treat as a petition for review filed in this Court’s original jurisdiction. He avers that, in denying him parole, the Pennsylvania Board of Probation and Parole (Board) deprived him of due process, and retroactively applied Section 9718.1 of the Judicial Code² to him in violation of the Ex Post Facto Clauses of the United States and Pennsylvania Constitutions. U.S. Const. art. I, § 10; Pa. Const, art. 1, § 17. The Board filed a preliminary objection in the nature of a demurrer, which is now before this Court for disposition.³ For the reasons that follow, we sustain the preliminary objection of the Board.

Petitioner is an inmate at the State Correctional Institution at Coal Township, Pennsylvania, where he is currently serving a sentence of 10 years, 5 months to 40 years, 10 months,⁴ for the offenses of robbery, involuntary deviate sexual intercourse ⁵ and possession of an instrument of crime.

Petitioner was paroled in 1991, following the expiration of his minimum sentence.⁶ Among other requirements of his release, the Board imposed a special condition of parole requiring Petitioner to be evaluated to determine his need for mental health and sex offender treatment. Petitioner’s Brief, Ex. B. In 1995, Petitioner violated parole conditions prohibiting his use of drugs and requiring him to submit to urinalysis. As a result, he was recommitted as a technical parole violator to serve fifteen months backtime. Petitioner’s Brief, Ex. D. The recommitment decision advised Petitioner that while confined, he must comply with the institution’s prescriptive program, have no misconducts and must participate in a sex offender treatment program.⁷ Id.

Petitioner applied for parole in 1997, 1998, 1999, and 2000. Each time the Board denied him parole. In January 1997, the Board refused to release Petitioner on parole because of “substance abuse,” “assaultive instant offense,” “very high assaultive behavior potential,” “victim injury,” “weapon involved in the commission of offense,” “failure to participate in and benefit from a treatment program for sex offenders,” and an “unfavorable recommendation from the Department of Corrections.” Petitioner’s Brief, Ex. E. The Board stated that, prior to his next parole review in January 1998, Petitioner “must participate in [a] prescriptive program plan including [a] sex offender program,” “must maintain a clear conduct record” and “must earn an institutional recommendation for parole.” Id.

In February 1998, the Board refused to release Petitioner on parole because of “substance abuse,” “assaultive instant offense,” “very high assaultive behavior potential,” “victim injury,” “weapon involved in the commission of offense,” “failure to participate in and benefit from a treatment program for sex offenders,” and an “unfavorable recommendation from the Department of Corrections.” Petitioner’s Brief, Ex. F. The Board stated that, prior to his next parole review in January 1999, Petitioner “must participate in [a] prescriptive program plan,” “must maintain a clear conduct record” and “must earn an institutional recommendation for parole.” Id.

In January 1999, the Board refused to release Petitioner on parole because “the mandates to protect the safety of the public and to assist in the fair administration of justice cannot be achieved through your release on parole.” Petitioner’s Brief, Ex. G. The Board informed Petitioner that at the next review in or after January 2000, it would consider “whether you have successfully completed a treatment program for sex offenders,” “whether you have received a favorable recommendation for parole from the Department of Corrections” and “whether you have maintained a clear conduct record and completed the Department of Corrections’ prescriptive program(s).” Id.

In February 2000, the Board refused to release Petitioner on parole because “the mandates to protect the safety of the public and to assist in the fair administration of justice cannot be achieved through your release on parole.” Petitioner’s Brief, Ex. H. The Board informed Petitioner that at the next review in or after January 2001, it would consider “whether you have successfully completed a treatment program for sex offenders and substance abuse,” “whether you have received a favorable recommendation for parole from the Department of Corrections” and “whether you have maintained a clear conduct record and completed the Department of Corrections’ prescriptive program(s).” Id. The Board further stated that “your written version of your crimes and sex offender evaluation addressing prior sex offenses (at least 3 arrests with one conviction), arousals, triggers, red flags, coping strategies and ongoing treatment needs to be available at [the] time of review.” Id.

On December 20, 2000, Act 2000-98 was signed into law and became effective immediately. Section 3 provides:

(1) The amendment of 18 Pa.C.S. §§ 2902, 2903 and 5903(h)(2) and the addition of 12 Pa.C.S. § 9718.1 shall apply to offenses committed on or after the effective date of this act.

(2) The addition of k2 Pa.C.S. § 9718.1 shall not preclude consideration of the factors set forth in that section in granting or denying parole for offenses committed before the effective date of this act, except to the extent that consideration of such factors is precluded by the Constitution of the United States or the Constitution of the Commonwealth of Pennsylvania.

Act of December 20, 2000, P.L. 721, No. 2000-98 (emphasis added). See also H.B. 47, 184th Gen. Assem., 1999 Reg. Sess. (Pa.2000).

In January 2001, the Board refused to release Petitioner on parole for the fifth time, stating that “the fair administration of justice cannot be achieved through your release on parole.” Petitioner’s Brief, Ex. I. The Board informed Petitioner that at the next review in or after March 2002, it would consider “whether you have participated in a treatment program for: sex offenders,” “whether you have maintained a favorable recommendation for parole from the Department of Corrections” and “whether you have maintained a clear conduct record and completed the Department of Corrections’ prescriptive programs.” Id. The Board further stated that “status and disposition, as available, of your pending appeal process and sex offender assessment to be available at [the] time of review.” Id.

In November 2001, Petitioner filed the Petition, alleging that the Board deprived him of due process by: (1) considering factors that are unrelated to the technical parole violations for which he was recommitted; (2) denying him parole based upon the information considered by the sentencing court in fashioning his “original sentence”; (3) requiring a favorable recommendation from the Department of Corrections; and (4) denying him parole based upon his failure to participate in programs “that have clearly been established as voluntary.” Petition at 3-7. Petitioner also alleges that the Board retroactively applied Section 9718.1 of the Sentencing Code to him in violation of the Ex Post Facto Clauses of the United States and Pennsylvania Constitutions. Petitioner seeks an order mandating that the Board schedule a new parole interview and consider only those factors that do not violate his constitutional rights. Petitioner’s Brief at 23.

The Board filed a preliminary objection in the nature of a demurrer, asserting that it consistently employed the appropriate statutory factors in Petitioner’s parole reviews and that Petitioner presented no affirmative evidence to the contrary. Specifically, the Board argues that: (1) Petitioner has not stated an ex post facto claim because the Board did not condition Petitioner’s eligibility for parole on his participation in a sex offender treatment program; (2) Petitioner has not stated a due process violation because he does not have a liberty interest in the expectation of release on parole prior to the expiration of his maximum sentence; and (3) mandamus is improper because the denial of parole is a matter solely within the Board’s discretion. We will address these arguments seriatim.

I. EX POST FACTO CLAIM

The Board demurs, first, to Petitioner’s claim that his rights under the Ex Post Facto Clause of the United States Constitution and of the Pennsylvania Constitution were violated. We agree that the Petition does not state an ex post facto claim.

In both the civil and criminal context, the Ex Post Facto Clause of the United States Constitution places limits on the “sovereign’s ability to use its lawmaking power to modify bargains it has made with its subjects.” Lynce v. Mathis, 519 U.S. 433, 440, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997). A criminal law that transforms an act, which was innocent when committed, into a criminal one and then punishes such action violates the ex post facto prohibition. Commonwealth v. Young, 536 Pa. 57, 66, 637 A.2d 1313, 1317 (1993). This means that a law that aggravates a crime, inflicts greater punishment or that changes the rules of evidence in favor of the State will be found unconstitutional. Id. Although parole is a matter of grace, our Supreme Court has directed that where the Board increases a penalty by applying a new law this can trigger the ex post facto prohibition. Coady v. Vaughn, 564 Pa. 604, 608-609, 770 A.2d 287, 289-290 (2001).

Here, Petitioner asserts that the Board has applied Act 2000-98 to him in violation of the Ex Post Facto Clause in the Constitutions of the United States⁸ and of Pennsylvania.⁹ Our Supreme Court has explained that the ex post facto clauses of both constitutions are virtually identical, and the standards applied to determine an ex post facto violation are comparable. Young, 536 Pa. at 65, 637 A.2d at 1317 n. 7. Accordingly, the analysis of Petitioner’s federal ex post facto claim disposes of his state claim as well.

The principles for evaluating a change in the parole laws against the federal ex post facto prohibition have been refined in two recent cases: California Department of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995) and Garner v. Jones, 529 U.S. 244, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000).¹⁰ They establish that the controlling inquiry is whether retroactive application of a law creates a sufficient risk of increasing the measure of punishment for a crime. Morales, 514 U.S. at 509, 115 S.Ct. 1597. The increase in punishment will not be shown by conjecture or by attenuated possibility. Id.

In Morales, the Supreme Court considered a California statute that allowed the parole board to decrease the frequency of parole suitability hearings for prisoners convicted of more than one homicide. At the time of his 1980 conviction for the murder of his wife, his second conviction for murder, Morales was entitled to an annual parole hearing. In 1981, the California Legislature amended its statute to give the parole board discretion to delay a parole hearing for up to three years, in the case of a multiple murderer. Morales claimed that the statute’s application to him violated the ex post facto prohibition; the Supreme Court held in favor of the State of California. In doing so, the Court reasoned that the statutory amendment applied only to a class of prisoners for whom the likelihood of release on parole was quite remote; the amendment did not alter the timing of any prisoner’s initial parole suitability hearing and affected the scheduling of a subsequent hearing only where the parole board specifically found it unreasonable to expect parole during the interval; and that, in any case, the parole board retained the authority to schedule more frequent parole hearings where appropriate in an individual case. Id. at 510-511, 115 S.Ct. 1597. Thus, the Supreme Court found that the statute in question created only the most speculative and attenuated possibility of increasing the severity of Morales’ punishment and was not, therefore, unconstitutional. Morales, 514 U.S. at 509, 115 S.Ct. 1597.

In Garner, the Supreme Court considered an amendment to Georgia’s parole rules¹¹ that extended the interval between parole reconsideration hearings for inmates serving life sentences from three years to eight years. The Court found that this rule change was not invalid on its face because the parole board retained discretion as to how often to set an inmate’s date for reconsideration, with eight years being the maximum. Further, the Georgia rules permitted expedited parole reviews to consider a change in circumstances or new information. Garner, 529 U.S. at 254, 120 S.Ct. 1362. The Court remanded the case for consideration of whether, as applied to petitioner’s sentence, the amendment created a significant risk of increasing his punishment. Id. at 255-257, 120 S.Ct. 1362.

By way of contrast, a Florida statute that retroactively cancelled provisional early release credits was found unconstitutional. Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997). In that case, Lynce, who had been released on the basis of his credits, was arrested and returned to custody because of the state attorney general’s opinion that his release had been improper under the new statute. The obvious increase in punishment persuaded the Court that the statute violated the Ex Post Facto Clause of the United States Constitution.

In sum, to prevail in this case, Petitioner must prove, first, that Act 2000-98¹² was, in fact, applied to him. Next, Petitioner must prove that Act 2000-98, on its face or as applied to him, creates a significant risk of increasing the severity of his punishment. For the reasons that follow, Petitioner cannot meet this burden.

Although Petitioner asserts that Act 2000-98 was applied to him, his Petition fails to set forth essential elements of his claim. First, neither the Petition nor the record indicates whether the victims of Petitioner’s crimes were minors under the age of 18, as contemplated by Act 2000-98. Further, Petitioner’s last parole denial letter does not refer to Act 2000-98 nor does it use its language. Finally, Act 2000-98 provides that persons incarcerated in a state institution for enumerated sexual offenses involving minors will not be eligible for parole unless they have participated in a Department of Corrections program of counseling or therapy designed for incarcerated sex offenders. 42 Pa.C.S. § 9718.1. Here, Petitioner was never rendered ineligible for parole; rather, he was deemed eligible and was interviewed for reparole five times (four of which were prior to the passage of Act 2000-98) regardless of his participation in a counseling or therapy program for sex offenders. Accordingly, Petitioner has not averred facts sufficient to establish that Act 2000-98 played any role in the Board’s determination.

Assuming, arguendo, that Act 2000-98 was retroactively applied to Petitioner, the Act does not, on its face, violate the Ex Post Facto Clause. Section 3 of Act 2000-98¹³ clearly provides that its mandatory provisions only “apply to offenses committed on or after the effective date of this act.” 42 Pa.C.S. § 9718.1. Section 3 also permits, but does not require, consideration of the Act’s factors “in granting or denying parole for offenses committed before the effective date of this act...Id. Thus, the Board retains discretion to consider whether a state prison inmate who committed a sexual offense involving a minor before Act 2000-98 was passed should receive sex offenders’ treatment. Under Morales and Garner, this retention of the Board’s discretion bars a finding that the statute, on its face, violates the ex post facto prohibition.

Again, assuming, arguendo, that Act 2000-98 was applied to Petitioner by the Board, we cannot conclude that its retroactive application creates “a sufficient risk of increasing the measure of punishment attached to the covered crimes.” Morales, 514 U.S. at 509, 115 S.Ct. 1597. Without allegations to show how the retroactive, application of Act 2000-98 increases, to a significant degree, the likelihood or probability of prolonging Petitioner’s incarceration, his claim rests upon nothing more than mere speculation. Speculation cannot support an ex post facto claim. Morales, 514 U.S. at 509, 115 S.Ct. 1597.

Act 2000-98 is not a penal statute; it does not “punish.” Under our Pennsylvania Supreme Court’s decision in Commonwealth v. Gaffney, 557 Pa. 327, 733 A.2d 616 (1999), a legislative measure will be considered penal where: (1) the legislature’s actual purpose is punishment; (2) the objective purpose is punishment; or (3) the effect of the statute is so harsh that “as a matter-of degree” it constitutes punishment. Id. at 331, 733 A.2d at 618. Under this test, Act 2000-98 cannot be construed as a penal statute.

First, the stated, actual purpose of Act 2000-98 is the protection of the public. As set forth in the Act, the General Assembly declared:

It is the intent of the General Assembly to protect our most vulnerable and precious citizens, the Commonwealth’s children, from the ravages of sexual abuse. Because sexual crimes committed against children are among the most heinous imaginable, the General Assembly declares it to be in the public interest to enact this act.

H.B. 47, 184th Gen. Assem., 1999 Reg. Sess. (Pa.2000). Requiring those persons incarcerated in a state institution for enumerated sexual offenses involving minors to participate in a treatment program was not intended as retribution, but rather to protect the public. This is a rational approach to reducing the serious danger that repeat sex offenders pose to the citizens of the Commonwealth, including our children.¹⁴

Similarly, the objective purpose of the statute is non-punitive. Act 2000-98 protects vulnerable citizens and assists rehabilitated offenders to reenter society. This rehabilitative purpose is consistent with the Commonwealth’s public policy to provide the opportunity for the offender to become a useful member of society. Act 2000-98 ensures that those to be paroled are provided needed treatment so they do not commit other similar crimes. Rehabilitation is a legitimate, non-punitive, objective of our penal system.

Finally, Act 2000-98 is not so harsh in effect as to constitute punishment. Because it provides treatment to an offender, Act 2000-98 facilitates early release of such offenders into the community. Parole prior to the expiration of his maximum sentence is an act of executive grace to which an inmate has no entitlement. Presley v. Pennsylvania Board of Probation & Parole, 748 A.2d 791, 794 (Pa.Cmwlth.2000). Successful treatment can only be a positive factor for an inmate seeking early release.

Parole can only be granted by the Board when it appears that the interests of the Commonwealth will not be injured. Section 21 of the Parole Act, Act of August 6, 1941, P.L. 861, as amended, 61 P.S. § 331.21. It is therefore prudent to ensure that sex offenders are able to function appropriately when they reenter society. To enable rehabilitation, sex offender treatment is made available. To encourage offenders to avail themselves of the opportunity for treatment, early release through parole is used as an incentive. An offender who declines treatment is subjected to no greater burden than that imposed by the sentencing judge. However, an offender who accepts treatment may qualify for release before his maximum date. This result is not so harsh as to constitute punishment.

Petitioner has not pleaded facts to show that Act 2000-98 figured into the Board’s decision not to release him. However, Act 2000-98, on its face or as applied, does not create a significant risk of increasing the severity of his punishment. We hold, therefore, that the Petition fails to state a claim under the Ex Post Facto Clause of the Constitution of the United States or of Pennsylvania.

II. DUE PROCESS CLAIM

The Board next argues that the Petition does not state a due process violation ¹⁵ because Petitioner does not have a liberty interest in the expectation of release on parole prior to the expiration of his maximum sentence. We agree.

As this Court has previously stated, “parole is nothing more than a possibility, and if granted, it merely constitutes a favor given by the state, as a matter of grace and mercy, to a prisoner who has demonstrated a probability of his or her ability to function as a law-abiding citizen in society.” Mickens-Thomas v. Board of Probation & Parole, 699 A.2d 792, 796 (Pa.Cmwlth.1997) (citing Weaver v. Pennsylvania Board of Probation & Parole, 688 A.2d 766 (Pa.Cmwlth.1997)). Accordingly, a prisoner has no constitutionally protected liberty interest in being released from confinement prior to the expiration of his maximum term of sentence. See, e.g., Krantz v. Pennsylvania Board of Probation & Parole, 86 Pa.Cmwlth. 38, 483 A.2d 1044, 1047 (1984); Mickens-Thomas, 699 A.2d at 796.

However, Petitioner contends that the Board deprived him of due process because it considered factors that are unrelated to the technical parole violations for which he was recommitted; it denied him parole based upon the information considered by the sentencing court in fashioning his “original sentence”; it required a favorable recommendation from the Department of Corrections; and it considered his failure to participate in programs that are voluntary, not mandatory. These claims lack merit.

In fact, the Board is statutorily required under Section 19 of the Parole Act, 61 P.S. § 381.19, to consider such factors.¹⁶ Moreover, it is prudent for the Board to consider the nature of the offense and other information used by the trial court to sentence Petitioner. Contrary to Petitioner’s argument, such considerations do not affect the original term of the sentence, but merely help the Board carry out its statutory duties to protect the public and ensure that an individual is sufficiently rehabilitated before he reenters society. These considerations are even more important in the context of the individual who has been paroled, and is recommitted either as a technical parole violator or a convicted parole violator. That individual has proven that he was not sufficiently rehabilitated to reenter society and follow its rules.

Accordingly, we hold that the Petition fails to state a claim that the Petitioner’s due process rights were violated.¹⁷

III. MANDAMUS

Finally, the Board argues that mandamus does not lie to challenge the Board’s denial of parole because the denial of parole is a matter solely within the Board’s discretion.

A writ of mandamus is an extraordinary remedy designed to compel official performance of a ministerial act or mandatory duty. McGill v. Pennsylvania Department of Health, Office of Drug and Alcohol Programs, 758 A.2d 268, 270 (Pa.Cmwlth.2000). Thus, in an action in mandamus involving an administrative agency’s exercise of discretion, we may only direct the agency to perform the discretionary act; we may not direct the agency to exercise its judgment or discretion in a particular way or direct the retraction or reversal of action already taken. Id. A writ of mandamus may be issued only where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and lack of any other appropriate and adequate remedy. Id. The purpose of mandamus is not to establish legal rights, but to enforce those rights already established. Id.

Because we have concluded that Section 9718.1 of the Judicial Code does not violate the prohibition against ex post facto laws, and that the granting of parole is a purely discretionary act which the Board appropriately exercised when it denied Petitioner parole, Petitioner may not avail himself of this extraordinary remedy.

IV. CONCLUSION

For the foregoing reasons, we conclude that the application of Act 2000-98 to a sex offender sentenced prior to its effective date does not violate the Ex Post Facto Clauses of the United States and Pennsylvania Constitutions. Likewise, we find no due process violation by the Board in considering statutorily mandated factors or those employed in its discretion, to determine whether Petitioner should be granted parole. The Petition sets forth argumentative conclusions and expressions of unsupportable opinions, which are not legally sufficient to permit the action to continue.

Accordingly, the Board’s preliminary objection in the nature of a demurrer is granted, and the Petition is dismissed with prejudice.

ORDER

AND NOW, this 9th day of April, 2008, the preliminary objection in the nature of a demurrer filed by Respondent is sustained and the petition for review is dismissed with prejudice.

1 . This case was reassigned to Judge Leavitt on September 10, 2002.

2 . 42 Pa.C.S. § 9718.1. Section 3 of the Act of December 20, 2000 (Act 2000-98), P.L. 721, amended Chapter 97 of Title 42 of Pennsylvania’s Consolidated Statutes by adding Section 9718.1; Chapter 97 is commonly known as the Sentencing Code. The text of Section 3 can be found in the historical and statutory notes to Purdon’s version of 42 Pa.C.S.A. § 9718.1. Section 9718.1 provides that persons incarcerated in a state institution for enumerated sexual offenses involving minors will not be eligible for parole unless they have participated in a Department of Corrections program of counseling or therapy designed for incarcerated sex offenders.

3 . In our original jurisdiction, an action in mandamus must define the issues, and every act or performance essential to that act must be set forth in the complaint. See Pa. R.C.P. No. 1019. In ruling upon a preliminary objection in the nature of a demurrer, we must accept as true all well-pleaded allegations of material fact and all inferences reasonably deductible therefrom. Myers v. Ridge, 712 A.2d 791, 794 (Pa.Cmwlth.1998). We need not accept as true conclusions of law, unwarranted inferences, argumentative allegations, or expressions of opinion. Id. The test is whether it is clear from all of the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his or her right to relief. Id.

4 . Because Petitioner was sentenced to a term exceeding two years, the Board has exclusive jurisdiction over parole decisions. Section 17 of the Act commonly known as the Parole Act, Act of August 6, 1941, P.L. 861, as amended, 61 P.S. § 331.17.

5 . The pleadings do not indicate whether Petitioner's victims were minors under the age of 18, as contemplated by Act 2000-98.

6 . Petitioner’s minimum sentence expired on August 23, 1991; his maximum term of expiry is January 23, 2022.

7 . Petitioner’s arrest report indicated that he was dismissed from a mental health center after only two treatments because he was uncooperative, denied having difficulty with women and refused to discuss issues surrounding his conviction.

8 . The United States Constitution provides:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

U.S. Const, art. I, § 10, cl. 1.

9 . The Pennsylvania Constitution provides:

No ex post facto law, nor any law impairing the obligation of contracts, or making irrevocable any grant of special privileges or immunities, shall be passed.

PA. Const, art. 1, § 17.

10 .See also, Winklespecht v. Pennsylvania Board of Probation and Parole, 571 Pa. 685, 813 A.2d 688 (2002), in which our Supreme Court applied Morales and Gamer in considering whether a 1996 amendment to the Parole Act violated the Ex Post Facto Clause. It held that the 1996 amendment did not change Pennsylvania's policy as to the criteria for parole, “nor did the addition of this [new] language create a new offense or increase the penalty for an existing offense.” Id. at 691, 813 A.2d at 692.

11 . These rules were adopted by the Georgia Parole Board pursuant to statute authorizing the adoption of rules for reconsideration of parole denial. Garner, 529 U.S. at 247, 120 S.Ct. 1362.

12 . Act 2000-98 provides in relevant part as follows:

(a) General rule. — A person, including an offender designated as a "sexually violent predator” as defined in section 9792 (relating to definitions), shall attend and participate in a Department of Corrections program of counseling or therapy designed for incarcerated sex offenders if the person is incarcerated in a State institution for any of the following provisions under 18 Pa.C.S. (relating to crimes and offenses):

(1) Any of the offenses enumerated in Chapter 31 (relating to sexual offenses), if the offense involved a minor under 18 years of age.

(2) Section 4304 (relating to endangering welfare of children), if the offense involved sexual contact with the victim.

(3) Section 6301 (relating to corruption of minors), if the offense involved sexual contact with the victim.

(4) Open lewdness, as defined in section 5901 (relating to open lewdness), if the offense involved a minor under 18 years of age.

(5) Prostitution, as defined in section 5902 (relating to prostitution and related offenses), if the offense involved a minor under 18 years of age.

(6) Obscene and other sexual materials and performances, as defined in section 5903 (relating to obscene and other sexual materials and performances), if the offense involved a minor under 18 years of age.

(7) Sexual abuse of children, as defined in section 6312 (relating to sexual abuse of children).

(8) Section 6318 (relating to unlawful contact or communication with minor).

(9) Section 6320 (relating to sexual exploitation of children).

(10) Section 4302 (relating to incest) if the offense involved a minor under 18 years of age.

(11) An attempt or solicitation to commit any of the offenses listed in this subsection.

(b) Eligibility for parole. — For an offender required to participate in the program under subsection (a), all of the following apply:

(1) The offender shall not be eligible for parole unless the offender has:

(i) served the minimum term of imprisonment;

(ii) participated in the program under subsection (a); and

(iii) agreed to comply with any special conditions of parole imposed for therapy or counseling for sex offenders, including sexually violent predators.

(2) Notwithstanding paragraph (l)(iii), an offender who is a sexually violent predator is subject to section 9799.4(b) (relating to counseling of sexually violent predators),

(c) Department. — The department shall develop and provide the program of counseling or therapy for offenders as provided in subsection (a). The department shall have the sole discretion with respect to counseling or therapy program contents and administration, including the scheduling of an offender's attendance and participation.

42 Pa.C.S. § 9718.1 (emphasis added).

13 . The text of Section 3 of Act 2000-98 is set forth above in the text of the opinion.

14 . We observe that other courts have arrived at similar conclusions regarding sex offender statutes. McKune v. Lile, 536 U.S. 24, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002) (finding that Kansas state department of corrections rehabilitation program requiring convicted sex offender inmates to complete and sign an “Admission of Responsibility” form and complete a sexual history form detailing all prior sexual activities or lose privileges or be transferred to a maximum security prison, did not violate inmates’ rights against self-incrimination); Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (holding that the Kansas Sexually Violent Predator Act which establishes procedures for the involuntary civil commitment following criminal confinement of persons who, due to mental abnormality or a personality disorder, are likely to engage in predatory acts of sexual violence, was not punitive and, therefore, did not violate either the Double Jeopardy or Ex Post Facto Clause of the United States Constitution); State v. Carpenter, 197 Wis.2d 252, 541 N.W.2d 105 (1995) (finding that Wisconsin statute establishing a civil commitment procedure primarily intended to protect the public and provide concentrated treatment to convicted sexually violent persons does not violate either the Ex Post Facto or Double Jeopardy Clauses of the Wisconsin or United States Constitutions).

15 . Petitioner has due process rights under the Constitutions of the United States and Pennsylvania. Art. I Section 9 of the Pennsylvania Constitution has been construed as the functional equivalent of the due process provision in the United States Constitution. Commonwealth v. Kratsas, 564 Pa. 36, 49, 764 A.2d 20, 27, n. 5 (2001).

16 . Section 19 of the Parole Act states:

It shall be the duty of the board, upon the commitment to prison of any person whom said board is herein given the power to parole, to consider the nature and circumstances of the offense committed, any recommendations made by the trial judge and prosecuting attorney, the general character and background of the prisoner, participation by a prisoner who is serving a sentence for a crime of violence as defined in 42 Pa.C.S. § 9714(g) (relating to sentences for second and subsequent offenses) in a victim impact education program offered by the Department of Corrections and the written or personal statement of the testimony of the victim or the victim’s family submitted pursuant to section 22.1 of this act. The board shall further consider the notes of testimony of the sentencing hearing, if any, together with such additional information regarding the nature and circumstances of the offense committed for which sentence was imposed as may be available. The board shall further cause the conduct of the person while in prison and his physical, mental and behavior condition and history, his history of family violence and his complete criminal record, as far as the same may be known, to be reported and investigated. All public officials having possession of such records or information are hereby required and directed to furnish the same to the board upon its request and without charge therefor so far as may be practicable while the case is recent.

61 P.S. §331.19.

17 . The dissent notes that the Board's decision fails to state the reasons for denial with the specificity required by Voss v. Pennsylvania Board of Probation and Parole, 788 A.2d 1107, 1111 (Pa.Cmwlth.2001). This issue was not raised in the Petition - and is, therefore, waived.