Gardiner v. Commissioner of Correction

363 N.E.2d 1323, 5 Mass. App. Ct. 425, 1977 Mass. App. LEXIS 658

• Court: Massachusetts Appeals Court
• Decided: June 21, 1977
• Status: Published

Opinions

Armstrong, J.

On July 9, 1965, while serving a sentence for armed robbery, the plaintiff escaped from the State prison camp at Warwick. On May 8, 1973, he was apprehended and was subsequently tried and convicted for the crime of escape from a prison camp. G. L. c. 127, § 83C. Pursuant to § 83B² of that chapter, the plaintiff forfeited 213 days of good conduct deductions which he had accumulated prior to the escape. On September 18, 1974, the plaintiff requested that the defendant Commissioner restore those good conduct deductions. The Commissioner denied the request on the ground that under § 83B he had no power “to consider restoration of the 213 days good conduct deductions that you forfeited by escaping —”

The plaintiff then commenced this action for a judicial determination that the Commissioner was authorized to restore the good conduct deductions. The judge who heard the action in the Superior Court on an agreed statement of facts ruled that the Commissioner lacked that authority, and the plaintiff appealed.

Section 83B explicitly required the forfeiture of the plaintiff’s accumulated good time deductions. It makes no provision for restoration thereof. But the plaintiff argues that such a provision is seen to be implicit in § 83B when it is compared with § 129 of the same chapter.

Unlike § 83B, which applies only to prison camps, § 129 deals with correctional institutions generally, including prison camps. Section 129³ authorizes good conduct deductions from sentences, but contains two provisions by which such deductions may be lost. The first relates to infractions of prison rules: “If a prisoner violates any rule of his place of confinement, the commissioner..., upon the recommendation and evidence submitted [by the officer in charge of the institution where the prisoner is confined] ... shall decide what part, if any, of such good conduct deduction ... shall be forfeited by such violation, and may likewise determine, in the event of the prisoner’s subsequent good conduct, whether any or all of such deduction shall be restored.” The second relates to convictions for criminal offenses: “If, during the term of imprisonment of a prisoner confined in a correctional institution of the commonwealth, such prisoner shall commit any offense of which he shall be convicted and sentenced, he shall not be entitled to any deductions hereunder from the new sentence or sentences of imprisonment.”⁴

The plaintiff first argues that the word “forfeit,” used both in § 83B and in the rules infractions portion of § 129, is capable of being understood either in the sense of a permanent loss or in the sense of loss with a possibility of restoration; and that, since it has been held that the two sections are to be treated as using identical language in a uniform sense (Wood v. Commissioner of Correction, 363 Mass. 79, 82, fn.5 [1973]), and since § 129 uses the word “forfeit” in the sense of loss with a possibility of restoration, the same meaning must be given to the word “forfeit” in § 83B. The argument is patently unsound, because the possibility of restoration is not derived from the word “forfeit,” but from § 129’s explicit provision to that effect; and the absence of similar language in § 83B makes it clear that the Legislature’s intention was precisely contrary to the plaintiff’s first argument.

The plaintiff next argues that, although his escape was a crime, it was also a breach of prison rules,* ⁵ thus bringing the offense within the rules infraction portion of § 129, which permits restoration of forfeited good conduct deductions. This reasoning would effect the anomaly that one whose conduct violates both statute and rule would be accorded greater leniency than one who violates only a statute. It would also attribute to the Commissioner of Correction a power to modify statutes by administrative regulation. The argument is without merit.

The plaintiff’s final argument is that the description in § 83B of the offense of escape differs from the description in § 83C⁶ of the crime of escape, and from this he concludes that § 83B must be referring to the “institutional infraction of escape” rather than the crime of escape. But we think that the correct interpretation of the pertinent words in § 83B (“a prisoner [who] escapes or attempts to escape from a prison camp”) is that they refer to one who commits either of the two crimes (escape and attempt to escape) which are described in § 83C.⁷ The operation of § 83B does not depend on the existence of an administrative regulation prohibiting escape. None has been mentioned in the cases which have arisen under § 83B.⁸ Moreover, a contrary conclusion would avail the plaintiff naught, because the more particular provision made for an institutional infraction of escape from a prison camp in § 83B would clearly prevail over the general provisions of § 129 relative to rules infractions of any type in any prison. There is nothing inconsistent or unharmonious about a statute which provides a severe penalty for particular conduct which would warrant only a lesser penalty under a general statute in its absence. Nor do we perceive any ambiguity in § 83B which would justify invoking the principle that penal statutes are to be strictly construed.

Judgment affirmed.

This case was argued before a panel comprised of Justices Keville, Goodman and Armstrong. The other Justices took part in the decision pursuant to Mass.R.A.P. 24(a), 365 Mass. 872 (1974).

2 Section 83B, as amended through St. 1972, c. 172, § 2, provides in pertinent part: “If a prisoner escapes or attempts to escape from a prison camp all deductions from the sentence he is then serving shall be thereby forfeited.” In Wood v. Commissioner of Correction, 363 Mass. 79 (1973), the Supreme Judicial Court held that the forfeiture imposed by § 83B applies only to the deductions accumulated up to the time of the escape, and does not make a prisoner ineligible for good conduct deductions on the portion of the sentence not yet served at the time of the escape.

3 As amended through St. 1967, c. 379.

4 The quoted provision replaced an earlier provision, appearing in St. 1959, c. 445, § 2, which, in language parallel to § 83B, provided that if a prisoner should “commit any offense of which he shall be convicted and sentenced, all deductions hereunder from the former sentence of imprisonment of such prisoner shall be thereby forfeited.” The quoted provision is the result of an amendment made by St. 1963, c. 535. A contention was made in Gregoire, petitioner, 355 Mass. 399 (1969), that the 1963 amendment had impliedly repealed § 83B, since (it was argued) the Legislature could not have intended that one who escapes from a prison camp (as opposed to one who escapes from other correctional institutions) should suffer the double penalty of loss of good conduct deductions from the initial sentence (§ 83B) and loss of entitlement to good conduct deductions from the sentence imposed for the escape (§ 129). The Supreme Judicial Court rejected the contention.

5 So far as appears in this record, there is no rule expressly forbidding escape.

6 Section 83C, inserted by St. 1951, § 755, provides: “A prisoner who escapes or attempts to escape from any prison camp or from land adjacent thereto or from the custody of the officer thereof or while being conveyed to and from any such camp ... shall be punished by imprisonment ....” The emphasis is added to indicate the language which does not appear in § 83B, upon which the plaintiff relies.

7 The somewhat offhand suggestion to the contrary made by the Attorney General in Gregoire, petitioner, 355 Mass. 399 (1969), referred to in the dissenting opinion of Goodman, J., was not accepted by the court as a ground of decision. The principal point the Attorney General appears to have been making is that forfeiture under § 83B may be imposed on an administrative determination, whether or not the crime is prosecuted to a conviction. Contrast § 129 and Patrick v. Commissioner of Correction, 352 Mass. 666, 668 (1967).

8 Gregoire, petitioner, 355 Mass. 399 (1969). Wood v. Commissioner of Correction, 363 Mass. 79 (1973). Commonwealth v. Sneed, 3 Mass. App. Ct. 33 (1975).