The "pro-sex offender" debate—specifically regarding early release and parole eligibility—represents one of the most intense friction points in the American legal system. At its core, it is a conflict between two deeply held values: the rehabilitative ideal of the justice system, which posits that no individual is beyond redemption and that age often diminishes recidivism, and the primacy of public safety, which argues that predatory behavior is a fixed trait that cannot be "cured" by time.
This issue becomes particularly thorny when state-mandated programs, such as Elderly Parole, create a "one-size-fits-all" mechanism that includes high-risk offenders, often forcing “shareholders” to weigh the constitutional rights of an aging inmate against the lifelong trauma of victims and the community’s right to preemptive protection.
The recent decision by the California Board of Parole Hearings (BPH) to grant parole to David Allen Funston, a convicted serial child molester, has ignited a fierce statewide debate over public safety and the limits of the Elderly Parole Program. Originally sentenced in 1999 to three consecutive life terms plus an additional 20 years for 16 counts of kidnapping and sexual assault against children as young as three years old, Funston was once described by a Sacramento Superior Court judge as “the monster parents fear most.” However, on February 18, 2026, the parole board reaffirmed its determination that Funston, now 64, no longer poses an "unreasonable risk" to the community—a decision that has sent shockwaves through the California legal and law enforcement landscape.
The Mechanism of Release
Funston’s eligibility for release stems from California’s Elderly Parole Program (PC 3051.1). Established in 2017 and expanded in 2020 via AB 3234, the program permits inmates who are 50 years or older and have served at least 20 years of continuous incarceration to be considered for parole. Despite Funston’s history of violent predatory behavior, the board cited his advanced age, clean disciplinary record (115s), and participation in rehabilitative programming as evidence of diminished risk. While Governor Gavin Newsom invoked his authority to refer the case for a full en banc review in January 2026, the board ultimately upheld the grant.
Legal and Political Backlash
The grant of parole has drawn sharp condemnation from victims' advocates, law enforcement officials like Sacramento County Sheriff Jim Cooper, and state legislators. Critics argue that the program’s current structure fails to differentiate between non-violent elderly offenders and high-risk sexual predators. In response to the decision, Republican State Senators and Assembly members have introduced new legislation aiming to exempt sexually violent predators from elderly parole eligibility, arguing that "age does not erase predatory behavior."
The Placer County Intervention
In a dramatic turn of events on the
morning of his scheduled release—February 26, 2026—Funston was not returned to
the community. Instead, he was arrested at the prison gates and turned over to Placer
County law enforcement. The Placer County District Attorney’s Office filed
new charges related to a cold case from 1996 in Roseville that had previously
gone unprosecuted due to Funston's original life sentences. As of April 2026,
Funston remains in custody without bail in Placer County, as his defense team
challenges the nature of the new charges while the state grapples with the
fallout of a parole system that many believe "shocks the conscience."
The “Unreasonable Risk" Threshold And When Empathy And Ignorance Collide.
Very few citizens understand the parole process and do not usually care until they feel it might impact them. Most will Join The Parade that suits their outrage. The pain, trauma and lingering damage to “other victims” are real and understandable but fear and vengeance cannot be the basis for the law and legal decisions.
The outcry surrounding elderly parole grants often reveals a fundamental ignorance of the constitutional principles and scientific data that govern a civilized justice system. While the visceral pain of a victim is undeniable, it is a form of emotional ignorance to demand that the legal system operate solely on the basis of vengeance rather than objective evidence. True empathy within a legal framework requires acknowledging that the purpose of incarceration—retribution, deterrence, and rehabilitation—is eventually served. When the public ignores the rigorous, multi-year psychological evaluations and the decades of blemish-free behavior that the Parole Board meticulously reviews, they are choosing a narrative of "perpetual monsters" over the reality of human change. To suggest that a board of experts is "ignorant" for following the law and scientific risk-assessment tools is to suggest that emotion should override the rule of law.
Furthermore, there is a systemic ignorance in refusing to recognize the distinction between the person who committed a crime forty years ago and the elderly individual standing before the board today. The "empathy" demanded by critics is often a selective one that stops at the prison gates, ignoring the fact that keeping a low-risk, geriatric individual incarcerated at a massive cost to the taxpayer does nothing to undo past trauma. When ignorance leads the public to believe that public safety is enhanced by the symbolic "warehousing" of the elderly, it distracts from actual preventative measures and community safety. A system that can no longer recognize rehabilitation is no longer a justice system—it is a system of state-sponsored resentment that ignores the very capacity for growth that a modern society is supposed to champion.
Strategic Attorney Tip for PC 290 clients:
Try to successfully distance your client from the highly publicized and politically charged David Allen Funston case, as an attorney you must pivot from a purely "emotional" defense to a clinical, behavioral, and structural one.
The goal is to prove that while Funston’s grant "shocked the conscience" due to his specific profile, your client’s profile satisfies the "Not an Unreasonable Risk of Danger" standard through evidence that Funston’s case lacked.
