McDonald v. Pinchak

652 A.2d 700, 139 N.J. 188, 1995 N.J. LEXIS 6

• Court: Supreme Court of New Jersey
• Decided: January 25, 1995
• Status: Published

Opinions

The opinion of the Court was delivered by

GARIBALDI, J.

In this appeal, as in Jacobs v. Stephens, 139 N.J. 212, 652 A.2d 712 (1994), also decided today, Gallimore McDonald, an inmate in a New Jersey State prison, contends that state action taken at his disciplinary hearing violated procedural due process and the “fairness and rightness” standard of New Jersey. Specifically, McDonald asserts that the investigating officer and the hearing officer failed to adhere to the Department of Corrections’ own regulations by refusing his request both to call witnesses and to present evidence, and to confront and to cross-examine witnesses. The hearing officer, however, asserts that McDonald never asserted the right to call witnesses or to confront and to cross-examine witnesses. McDonald also alleges that the record contains insufficient evidence for the hearing officer’s finding of guilt.

In our decision today, we reaffirm the standards set forth in Avant v. Clifford, 67 N.J. 496, 341 A.2d 629 (1975), and in the Department of Correction (DOC) regulations promulgated in response thereto. However, we clarify and modify some of DOC’s disciplinary-hearing practices to ensure further that DOC properly implements both the standards that we announced in Avant and the DOC’s own regulations, and also conduct disciplinary hearings fairly. We do not require that disciplinary hearings be tape-recorded.

I

Inmate McDonald was charged with assaulting a person with a weapon, in violation of N.J.AC. 10A-4-4.1(a)*003.

At 6:00 p.m. on September 4, 1992, during family day at the East Jersey State Prison visit hall, Corrections Lt. Robert Connell reported seeing McDonald twice lift a chair over his head and then swing it in a downward motion. Although the visitors’ hall was crowded and Lt. Connell could not identify whom McDonald struck, Lt. Connell reported that he heard the chair striking flesh. Lt. Connell then yelled “fight” and moved toward the area with other officers. Lt. Connell took the chair out of McDonald’s hands, escorted him out of the crowd, handcuffed him, and charged him with assault with a weapon. Corrections Officer Wadley also filed charges against McDonald, identifying inmate Smith as McDonald’s victim. The hearing officer dismissed Officer Wadley’s charges as “repetitive” of Lt. Connell’s charges.

At the hearing, McDonald, assisted by a counsel substitute, denied that he had committed the assault. Instead, he claimed that inmate Spivey had struck him with a chair in the back of the head and that he had taken the chair from Spivey to defend himself. The record includes a hospital report indicating that McDonald was treated for a three-quarter inch superficial laceration on his head, but does not include any medical report for inmate Smith, McDonald’s alleged victim. In support of the hearing officer’s determination and the institutional denial of McDonald’s appeal, however, Superintendent Pinchak claims that the nurse’s report supports the conclusion that McDonald had been involved in a fight.

The only record of the disciplinary hearing is a one-page report. In the space for inmate or counsel substitute’s statement, the following summary of McDonald’s defense appears: “I was assaulted first. I grabbed the chair. I didn’t have a chance to use it. Smith was not involved. C/S [counsel substitute] states McDonald was the only victim.” The report indicates that inmate-witness Lamb stated, “I ain’t got nothing to say.” The form had boxes for whether confrontation and cross-examination were requested and granted or denied, and lines for the testimony or reason for denial. No boxes were checked and “Not requested” was written on the lines.

McDonald, however, alleges that he did request the investigating officer to interview inmate witnesses Smith, Spivey, Lamb, Miller, and Williams. According to McDonald, the hearing officer informed McDonald that the witnesses had refused to comment. Superintendent Pinchak denies any knowledge of witnesses other than Lamb, noting that McDonald did not identify other witnesses.

The complaining officers did not testify. The hearing officer found McDonald guilty and imposed sanctions “[t]o maintain order in visit area and deter injuries between inmates.” The hearing officer based his determination of guilt on Lt. Connell’s report. McDonald received fifteen days detention, 180 days loss of commutation credits, 180 days administrative segregation from inmates Spivey and Smith, and 365 days loss of visitation privileges. Both the assistant superintendent of the prison and the Appellate Division denied McDonald’s appeals. We granted McDonald’s petition for certification, 134 N.J. 477, 634 A.2d 525 (1994).

II

In 1974, the United States Supreme Court established minimum federal procedural due-process requirements for prison disciplinary proceedings in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). It stated “There is no iron curtain drawn between the Constitution and the prisons of this country.” Id. at 555-56, 94 S.Ct. at 2974, 41 L.Ed,.2d at 950. Although prisoners are not entitled to the same level of due-process rights as free persons, they are not “wholly stripped of constitutional protections.” Id. at 555, 94 S.Ct. at 2974, 41 L.Ed.2d at 950. However, the due-process rights of convicted persons serving time behind bars are not the same as those for persons merely charged with a crime. Id. at 556, 94 S.Ct. at 2974, 41 L.Ed.2d at 951. Under the Fourteenth Amendment, constitutional rights are abridged to the extent necessary to accommodate the institutional needs and objectives of prisons. Ibid.

In New Jersey, the administrative rules and regulations that govern the fulfillment of due-process rights for prisoners are balanced against the needs and objectives of the prison. In Avant, we stated:

It must be remembered that prisons and correctional institutions are not quiet monasteries. Their security and order are peculiarly dependent upon a system of swift, stern, unmistakable and yet fair disciplinary justice. That measure of control is as important to protecting the right to safety of the peaceful inmate population as to that of the correctional staff inside and the public outside.

[67 N.J. at 561, 341 A.2d 629 (footnote omitted).]

Indeed, the daily interaction between inmates and prison officials can create a tense environment that requires special measures to ensure safety. Swift and certain punishment is one tool prison officials use to maintain order and discourage future misconduct by a perpetrator. Thus, a court must weigh any expansion or refinement of long-established due-process rights of prisoners against the safety of all the prisoners and of the corrections staff.

Despite the need to avoid aggravation of the already high level of confrontation inherent in a prison setting and to maintain personal security within the system, the United States Supreme Court in Wolff held that inmates are entitled to certain protections. 418 U.S. at 556, 94 S.Ct. at 2974, 41 L.Ed.2d at 951. At a minimum, the United States Constitution requires that an inmate facing disciplinary charges receive: (1) a written notice of the alleged violation; (2) a written statement of the evidence relied on and the reasons for the disciplinary action taken; (3) a right to call witnesses and a right to present documentary evidence, when doing so would not be unduly hazardous to institutional safety or correctional goals; and (4) a right to assistance from a counsel substitute where the inmate is illiterate or the issues too complex for the inmate to marshal an adequate defense. Id. at 563-70, 94 S.Ct. at 2978-82, 41 L.Ed.2d at 955-59.

One year after Wolff, this Court decided Avcmt and extended State due-process guarantees beyond the federal constitutional minimum. See 67 N.J. at 520, 341 A.2d 629. To protect an inmate’s interest, we held that DOC must structure an informal hearing to “ ‘assure that the [disciplinary] finding * * * will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the * * * [inmate’s] behavior.’ ” Id. at 523, 341 A.2d 629 (quoting Morrissey v. Brewer, 408 U.S. 471, 485, 92 S.Ct. 2593, 2601-02, 33 L.EdM 484, 496 (1972) (omissions in original)). The hearing may be informal, but the procedures must determine the factual accuracy of the charges.

Although McDonald alleges that inmates are routinely found guilty of disciplinary infractions, the facts reveal the contrary. For example, the Chief Hearing Officer of DOC submitted an affidavit showing that of the 33,914 major violations presented to the hearing officers for adjudication in 1993, 23,770 (70%) had been adjudicated guilty; 4,057 (12%) had been adjudicated not guilty; 5,659 (16%) had been downgraded by the hearing officer to an on-the-spot correction (minor disciplinary infraction); and 428 had been dismissed on due-process grounds. 2,216 disciplinary charges were referred by hearing officers back to the prison staff for further information. Moreover, a hearing officer is only one of several people involved in the pre-hearing process; an investigating officer who was not involved in the incident is appointed by the Superintendent to interview the inmate, his witnesses, and reporting staff members and to report directly to the hearing officer in charge of each case. N.J.A.C. 10A.-4-9.5. Thus, some charges never reach the hearing stage because an investigating officer who thinks a charge is frivolous may halt the disciplinary process. Hearing officers therefore do not merely “rubber stamp” officers’ charges, but make a good-faith effort to adjudicate charges fairly and impose appropriate sanctions.

In addition, hearing officers are employed by DOC, not by the individual prison. They are rotated among the prisons. They report directly to the Commissioner’s office and not to any correctional institution’s administrative staff.

Ill

McDonald asserts that the hearing officer, or alternatively, the investigating officer, refused him the right to call witnesses and to present evidence, and refused him the right to confront and to cross-examine witnesses. He argues that those refusals violate his procedural due-process rights and administrative fairness.

a. Right to Call Witnesses and Present Evidence

N.J.A.C. 10A:4-9.13(a) provides that “[ijnmates shall be allowed to call witnesses and present documentary evidence in their defense when permitting them to do so will not be unduly hazardous to correctional facility safety or goals.” New Jersey’s standard follows Wolff’s mandate. See 418 U.S. at 566, 94 S.Ct. at 2979, 41 L.Ed.2d at 956 (holding that inmate should be allowed to call witnesses and present documentary evidence “when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals”).

New Jersey’s current regulation gives the hearing officer discretion to refuse to call witnesses, but goes beyond federal constitutional requirements mandating that “the reasons for each such refusal shall be separately specified on the Adjudication Form.” N.J.A.C. 10A:4-9.13(a) (emphasis added). Although the federal constitution does not require a contemporaneous recording of reasons, New Jersey was one of at least twenty-nine States and the District of Columbia that, as of 1985, required that hearing officers record reasons for refusing to hear witnesses. Ponte v. Real, 471 U.S. 491, 519 & n. 19, 105 S.Ct. 2192, 2207 & n. 19, 85 L.Ed.2d 553, 573 & n. 19 (citing N.J. Dep’t of Corrections, Disciplinary Standard 254.18 (1984) (codified at N.J.A.C. 10A:4-9.13(a)). Hearing officers must record their reasons for refusing to call a witness “ ‘whether it be for irrelevance, lack of necessity or hazards presented in individual cases.’ ” Avant, supra, 67 N.J. at 531, 341 A.2d 629 (quoting Wolff, supra, 418 U.S. at 566, 94 S.Ct. at 2980, 41 L.Ed.2d at 957). For courts properly to review prison disciplinary proceedings, the record múst show that prison officials observed mandatory procedural safeguards.

b. Right to Confrontation and Cross-Examination

N.J.A.C. 10A:4-9.14(a) provides that “if requested,” the inmate shall be provided the opportunity for confrontation and cross-examination “where the Adjustment Committee or Disciplinary Hearing Officer deems it necessary for an adequate presentation of the evidence, particularly when serious issues of credibility are involved.” Subsection (b) of that same provision further provides that a Disciplinary Hearing Officer or Adjustment Committee may refuse confrontation and cross-examination when they “would be unduly hazardous to correctional facility safety or goals.”

That State regulation provides more protection than the federal constitution. In interpreting the Fourteenth Amendment, the United States Supreme Court determined that requiring cross-examination and confrontation as a matter of course would lead to the “considerable potential for havoc inside the prison walls” and would result in longer, possibly unmanageable, proceedings. See Wolff, supra, 418 U.S. at 567, 94 S.Ct. at 2980, 41 L.Ed.2d at 957. Thus, under the federal constitution, “adequate bases for decisions in prison disciplinary cases can be arrived at without cross-examination,” and whether to permit cross-examination is left to the “sound discretion” of the prison officials. Id. at 568, 94 S.Ct. at 2980, 41 L.Ed.2d at 958.

Going beyond the minimum protections provided under the federal constitution, this Court in Avant determined that under the New Jersey Constitution, cross-examination and confrontation must be available to the inmate when “necessary for an adequate presentation of the evidence, particularly when serious issues of credibility are involved.” 67 N.J. at 530, 341 A.2d 629. Expanding New Jersey’s protection of inmates, this Court in Avant amended the standards “by requiring that in those cases where the Committee ‘deems’ confrontation and cross-examination ‘[un]necessary for an adequate presentation of the evidence’ the reasons for such denial be entered in the record and made available to the inmate.” Id. at 532, 341 A.2d 629 (quoting Standard 254.274) (alterations in original). This New Jersey requirement exceeds those of most states, which often do not provide for a written explanation from the hearing officer of his or her denial of cross-examination and confrontation to an inmate. Columbia Human Rights Law Review, A Jailhouse Lawyer’s Manual 509 (3d 1992).

This Court determined that such a requirement represented a “more precise accommodation of the cbmpeting interests and would afford greater flexibility than would an absolute bar to or requirement of confrontation and cross-examination.” Avant, supra, 67 N.J. at 532, 341 A.2d 629. Indeed, requiring that prison officials record reasons for not permitting an inmate to confront or cross-examine witnesses deters administrative arbitrariness. Case Comment, “Prisoners’ Rights — New Jersey Fairness and Rightness Standard — Procedural Requirements Delineated for Prison Disciplinary Hearings,” 29 Rutgers L.Rev. 729, 752 (1976). Furthermore, compliance with the requirement would permit reviewing authorities to determine whether or not there had been a proper exercise of discretion. See id. at 752-53 n. 134.

Because N.J.AC. 10A:4-9.14 not only complies with Avant but exceeds the requirements of Wolff, we find no need to expand or even to modify an inmate’s right to confrontation and cross-examination.

IV

We do find, however, a need for DOC to improve its recordkeeping. Reviewing bodies must be able to examine a record of disciplinary proceedings. Subsequent to oral argument, we were provided with an amended Adjudication of Disciplinary Charge form, approved by DOC’s Commissioner. Specifically, this amended form provides space for a hearing officer’s recordation and for an inmate’s agreement that he had been given twenty-four hours between notice of the charge and a hearing, that he requested witnesses, and whether those witnesses had been called. Below the summary of those actions, the defendant inmate or his counsel substitute would sign to indicate that the information set forth on the Adjudication of Disciplinary Charge form accurately reflects what took place at the hearing.

The amended form delineates the choices open to defendant inmates and provides ample space for the hearing officer to explain what was or was not done. The form provides that disciplinary hearing officers record in writing their reasons for refusing an inmate’s request to call witnesses and present evidence and for refusing an inmate’s request to confront and cross-examine witnesses. Although not required, we suggest that DOC consider the feasibility of allowing defendant inmates to submit written requests for inmate witnesses to be attached to the record. All of these changes in the form used by DOC will result in improved recordkeeping. Most important, requiring the hearing officer to obtain a defendant inmate’s signature or his counsel substitute’s signature on the adjudication form with regard to those procedural issues will avoid factual disputes similar to those in this ease and Jacobs, supra, also decided today, from being decided at such a late date. Instead, the disputes can be resolved at one hearing. The amended adjudication form will achieve two goals: the creation of a record that obviates the need for tape- or video-recording, and the limitation of appealable issues solely to those included in the record.

In this case McDonald claims that the disciplinary hearing officer told him that his requested witnesses had refused to comment, while the assistant superintendent who reviewed the original determination denies having any knowledge of McDonald’s requested witnesses, other than inmate Lamb. McDonald’s counsel substitute claims that he did request an opportunity to cross-examine those who testified, including inmate Smith and Corrections Officer Wadley. However, the adjudication form bears the words “not requested” near the entry for cross examination, and no written evidence of explanation for such refusal exists. Such murky disclosures at this stage of appellate review illustrates the need for creation of a clear written record at each disciplinary hearing.

From the record at hand, we are unable to resolve the discrepancy between McDonald’s claims that the hearing officer denied his request to call other witnesses and to confront adverse witnesses and the absence of such requests on the adjudication form. Despite the dissent’s assertion that the original hearing officer cannot be an impartial adjudicator on remand and that McDonald and his substitute-counsel’s undocumented claims about the partiality of the system must be accepted as true, see post at 206, 652 A.2d at 709, we need not decide whether that remand to the original hearing officer would result in a “substantial likelihood of prejudice.” N.J.AC. 10A:4-11.6(b). Rather we point to McDonald’s substitute-counsel’s affidavit to this Court to show that it was the investigating officer, not the healing officer, who failed to interview witnesses that McDonald allegedly requested.

At the disciplinary hearing, ... the hearing officer, ... read the statement of inmate Lamb from the investigating sergeant’s report. The investigating sergeant failed to interview witnesses Smith and Spivey. Had the sergeant interviewed the inmates, the hearing officer would have read their names from the sergeant’s report, even if the inmates had refused to give any statement.

We remand McDonald’s ease to DOC to clarify and amplify the record to determine whether McDonald did indeed request witnesses and whether he requested an opportunity to cross-examine and confront witnesses at the original hearing. If the Superintend dent or his/her designee determines that allowing the same hearing officer to preside over that hearing would create a “substantial likelihood of prejudice” to McDonald, they may designate a new hearing officer. N.J.AC. 10A:4.11.5 & .6.

After the remand, if it is concluded that McDonald did not request witnesses or an opportunity to cross-examine and confront witnesses, we find that the evidence now in the record is sufficient to establish McDonald’s guilt. However, if McDonald did make those requests, then he should be given the opportunity to attempt to establish his innocence by calling those witnesses .at a rehearing.

V

McDonald also urges this Court to require that disciplinary proceedings be tape-recorded to provide a more complete record for administrative and judicial review. The United States Supreme Court in Wolff did not mandate tape-recording under the Fourteenth Amendment. Current DOC regulations also do not require that disciplinary hearings be tape-recorded in New Jersey. Because this Court approved disciplinary regulations that were silent on the question of taping, the Appellate Division has determined that the State constitution does not require verbatim recording. Negron v. New Jersey Dep’t of Corrections, 220 N.J. Super. 425, 431-32, 532 A.2d 735 (App.Div.1987). This Court can require tape-recording only if failure to tape-record disciplinary proceedings violates state constitutional notions of “fairness and rightness.” See Avant, supra, 67 N.J. at 527, 341 A.2d 629.

Tape-recording or video-taping of disciplinary hearings produces a multitude of problems such as cost, burden, and delay. The only benefit of such documentation would be a lengthy but accurate record of what happened at the hearing. However, that record would not include the hearing officer’s investigation prior to the hearing or his discussions with identified witnesses. Hence, aspects of that hearing crucial to a thorough record would be absent despite the expense and burden of the taping. Moreover, the amended Adjudication of Disciplinary Charge form and the Court’s prior suggestions for the refinement of that form will achieve many of the same purposes as would tape-recording. Infra at 210, 652 A.2d at 711. Although prison officials may choose to tape-record or video-tape disciplinary hearings, this Court will not require them to do so because neither New Jersey’s “fairness and rightness” standard nor procedural due-process standards mandates tape-recording.

VI

In this case and Jacobs v. Stephens, supra, 189 N.J. 212, 652 A.2d 712 also decided today, we do not grant inmates greater procedural protections than we gave them in Avant, but rather reaffirm and reinforce the procedural protections already recognized in Avant and already provided by DOC’s regulations. The current regulations regarding the calling of witnesses and the confrontation and cross-examination of witnesses at disciplinary hearings strike the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due process rights of the inmates. If followed scrupulously, the regulations would likewise provide a proper record for review of disciplinary proceedings.

DOC must instruct hearing officers to follow its own regulations more carefully. Hearing officers must be instructed to complete the amended Adjudication of Disciplinary Charge form carefully. Strict adherence to the regulations and the adjudication form should be sufficient to guarantee that inmates receive a procedurally-eorrect and fair disciplinary hearing.

That inmates receive their minimum procedural protections is important to furthering the rehabilitative goal of correctional facilities. Over twenty years ago, this Court recognized that procedural protections were due an inmate under the federal and State due-process clauses. We now reinforce those procedural protections.

We modify and affirm the judgment of the Appellate Division and remand to DOC for further proceedings in accordance with this opinion.