9 Mass. App. Ct. 545 | Mass. App. Ct. | 1980
For multiple infractions of the code of disciplinary offenses
Buchannan’s punishment occurred in the aftermath of an incident involving the use of obscene and abusive language (a violation of subsection 19 of the Code of Offenses, 103 Code Mass. Regs. 430.22[19] [1978]) directed by Buchannan against an employee of the institution and a related fight between Buchannan and that employee which occurred about an hour later. As originally described in a disciplinary report, this altercation was accompanied by language which also was less than chivalric, a circumstance which does not induce wonder. For the first episode Buchannan was charged with using abusive language; for the second episode he was charged with using abusive and threatening language, assault of an employee,
It is Buchannan’s position that this division of the second episode into separate units of violation of the disciplinary code and the consequential imposition of thirty days of solitary confinement constitute an impermissible end run around the strictures of G. L. c. 127, § 40. Section 40 came into the statutory scheme in the context of a thoroughgoing reorganization of the penal system by St. 1955, c. 770, based upon the report and recommendations of the Governor’s Committee to Study the Massachusetts Correctional System, 1955 Sen. Doc. No. 750. See Gardiner v. Commissioner of Correction, 5 Mass. App. Ct. 425, 431-432 (1977) (Goodman, J., dissenting). That report, at p. 43, recommended reform of the manner in which solitary confinement had been employed and described the then existing usage as “antiquated and ineffective as correctional procedures.”
Few of the thirty-one infractions listed in the Code of Offenses at 103 Code Mass. Regs. 430.22 would not also constitute simultaneous violations of two other categories of offense itemized in the Code: first, “[cjonduct which disrupts or interferes with the security or orderly running of the institution” and second, “[violating any departmental rule or regulation, or any other rule, regulation, or condition of an institution. . . .” 103 Code Mass. Regs. 430.22(8) and (2). Were the correction institutions of the Commonwealth to
That policy, however, does not answer the questions which Buchannan has posed: whether the word offense, as employed in G. L. c. 127, § 40, refers to a single course of conduct, and whether an inmate may be confined in isolation for more than fifteen days for multiple violations of the Code of Offenses arising out of a single course of conduct. For example, is the maximum isolation time with which a prisoner may be punished fifteen days if, in a single course of conduct, he assaults a guard, damages State property, and exhorts fellow inmates to a general uprising? This illustration, including offenses which do not develop from the same set of facts, demonstrates the difficulties to which the plaintiff’s view of the problem might lead.
We think the question put is not one we need decide because, on the facts of this case, the judge below correctly determined that Buchannan’s case had become moot and, accordingly, entered a judgment dismissing the action.
An effort to make Buchannan’s complaint a class action on behalf of prisoners similarly situated was abandoned, and there is no basis, therefore, to decide the case on the basis of prisoners against whom disciplinary sanctions are still pending. Compare Wolf v. Commissioner of Pub. Welfare, 367 Mass. 293, 297-298 (1975). See also United States Parole Commn. v. Geraghty, 445 U.S. 388, 404 (1980) (action brought on behalf of a class of prison inmates does not, as to an appeal from a denial of the class certification, become moot upon the named plaintiff’s release).
Nor do we think that the question raised is one likely to recur and which will evade judicial review. From the single instance of the remission of the balance of Buchan-nan’s solitary confinement punishment we cannot jump to
We are the more reluctant to step into the fray because the application of G. L. c. 127, § 40, as the Commissioner of Correction’s Bulletin 77-16 observes, requires the exercise of practical discretion and judgment. The problem may lend itself better to administrative solutions than to an attempt to state a principle of general applicability by judicial decision. See Blake v. Massachusetts Parole Bd., 369 Mass, at 707 n. 10.
Judgment affirmed.
The Code of Offenses appears at 103 Code Mass. Regs. 430.22 (1978) and is part of the regulations of the Department of Correction governing disciplinary actions issued July 21, 1977, and now appearing as 103 Code Mass. Regs. 430 et seq. (1978).
The entire text of the statute reads as follows: “For the enforcement of discipline, an inmate in any correctional institution of the commonwealth may, at the discretion of its superintendent, be confined, for a period not to exceed fifteen days for any one offence, to an isolation unit.
“ Such isolation units must provide light, ventilation and adequate sanitary facilities, may contain a minimum of furniture, and shall provide at least one full meal daily.”
A violation of 103 Code Mass. Regs. 430.22(18), “Fighting with, assaulting or threatening another person. ...”
A violation of 103 Code Mass. Regs. 430.22(8).
Prior to amendment in 1955, G. L. (Ter. Ed.) c. 127, § 40, read as follows: “The warden of the state prison, with the consent of the commissioner, may, for such time as he considers necessary to produce penitence or to promote good order and discipline, confine obstinate and refractory prisoners to solitary labor.”
As to that policy, see McGrath, Criminal Law, Procedure, and Administration, 1955 Ann. Survey Mass. Law 119, 126-127.