Jacobs v. StephensJacobs v. Stephens
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- Before:
- Gaeibaldi
Lead Opinion
The opinion of the Court was delivered by
In this appeal, as in McDonald v. Pinchak, 139 N.J. 188,
As in McDonald, we reaffirm the standards set forth in Avant v. Clifford, 67 N.J. 496,
I
Inmate Jacobs was charged with “threatening another with bodily harm” in an argument with a prison guard, in violation of N.J. AC. 10A:4-4.1(a)*005.
Sgt. Idlett delivered a copy of the disciplinary report regarding the charge to Jacobs at 10:30 a.m. on September 15, 1992. An investigation of the charge conducted the same day revealed two inmate witnesses who provided evidence that supported the charge against Jacobs. The hearing then occurred twenty-two- and-one-half hours later, at 8:55 a.m. on September 16, 1992. Hearing Officer Arthur Saltzman conducted the proceeding. The hearing officer claims he did not realize that the hearing should have been held one-and-one-half hours later. He observed, however, that he had asked whether Jacobs was ready to proceed, and neither Jacobs nor his сounsel substitute had requested more time.
The one-page hearing report indicates Jacobs’s defense was that “I may have used abusive language but I didn’t threaten him.” The hearing officer found Jacobs guilty and sanctioned Jacobs to fifteen days detention, 180 days loss of commutation time, and 180 days administrative segregation. The hearing report states that the reason for the sanction was that “the officer who wrote charge perceived the situation as a threat. In mitigation, there is [sic] some inconsistencies in what actually was said----”
II
Jacobs correсtly asserts that his hearing, held only twenty-two- and-one-half hours after receipt of written notice, was in violation of the regulation that inmates shall have twenty-four hours between receipt of written notice and hearing to prepare a defense. He further asserts that that infraction violated both his constitutional due-process right's and administrative fairness.
Federal and state laws governing the due-process claims of prisoners have evolved considerably over the last twenty years. See McDonald, supra, 139 N.J. at 193-199,
No one disputes that the disciplinary hearing on Jacobs’s charge commenced at 8:55 a.m. on September 16, 1992, approximately one-and-one-half hours prior to the expiration of the required twenty-four hour period. In his affidavit, the hearing officer stated he did not realize that the hearing should have commenced at 10:30 a.m. He also claimed that neither Jacobs nor the counsel substitute appointed at Jacobs’s request told him that slightly less than twenty-four hours had passed since Jacobs had received notice of the charge. The hearing officer also stаted that he routinely asks inmates and their counsel substitutes whether they are ready to proceed with a disciplinary hearing. On the occasions when inmates or counsel substitutes indicate that they are not prepared to go forward with the proceeding, the hearing officer postpones the hearing and makes a notation of his decision on the adjudication form. He asserted that neither Jacobs nor counsel substitute had asked for more time for preparation. He claimed that if such a request had been made, he would have granted it.
Deviation from thе twenty-four-hour rule, a short period of time to begin with, should be permitted only in extreme circumstances. Such deviation may prejudice a defendant-inmate and is not acceptable under the governing law. Simple neglect by the hearing officer to ensure compliance with that regulation usually will not constitute such an extreme circumstance. Nor will
A harmless-error analysis is applied typically to a “denial of rights accorded to defendants to facilitate their defense.” Johnstone v. Kelly,
Application of the harmless-error rule to the alleged deprivation of Jacob’s right to have the full twenty-four hours to prepare his defense requires a two-step approach: review of the regulations to insure the protection of an inmate’s fundamental due process rights, and on a determination that the minimal requirements of due process have been met, review of the prejudice alleged by defendant. Von Kohl v. Brennan, 855 F.Supp. 1413, 1421 (M.D.Pa.1994). Once a court has balanced these concerns, a court should be “reluctant to overtax and/or hamstring prison officials’ execution of disciplinary policies and procedures by mandating an automatic remand for technical non-compliance
The dissent misconstrues our application of the harmless error rule to the case at hand and misinterprets case law from other jurisdictions. See ibid.; see also Ex parte Floyd,
Ill
Whether Jacobs is actually claiming that the hearing officer violated N.J.A.C. 10A:4-9.13(a), which 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” is unclear. The adjudication form does not reflect a request by Jacobs to call any inmate witnesses on his behalf. The hearing
Instead, Jacobs complains that he was unable fully to investigate or prepare his case. For example, although N.J.A.C. 10A:4-9.5(e) states that the inmate “shall not” receive a copy of the investigation report, Jacobs argues that the hearing officer should have turned over inmate witness statements gathered during the investigation. In his affidavit, the Assistant Commissioner of DOC explains that for security reasons, prison officials do not share all the witnesses’ statements with the charged inmate. Many witnesses interviewed during the investigation are assured that their names will not be disclosed to the charged inmate because of the threat of retaliation. If inmates did not receive such an assurance, they might be reluctant to speak to prison officials. Such security concerns are a valid reason for denying the investigation report under N.J.A.C. 10A:4-9.5(e).
N.J.A.C. 10A:4-9.14(b), however, provides that confrontation and cross-examination may be refused only when they would be unduly hazardous to institutional safety or correctional goals. To facilitate confrontation and cross-examination, we suggest that DOC consider promulgating a similar regulation that would allow inmate defendants to receive the statements of other inmate witnesses provided that the DOC finds thаt such a disclosure would not compromise prison safety.
Jacobs also does not claim directly that he requested confrontation and cross-examination of any witnesses and was' denied his
Constitutional rights are effective to protect inmates only if they are aware that they can exercise them. With that guiding princiрle we hold, therefore, that prisoners should be informed of their right to confrontation and to cross-examination. Prisoners should be told of their rights to remain silent and to make statements concerning the charges, and of the availability of “use” immunity. Avant, supra, 67 N.J. at 544,
IV
Finally, Jacobs argues that sufficient “substantial evidence” did not exist to support the allegation that he had threatened Officer Hawkins with bodily harm. Jacobs contends that even though he used abusive language, he did not intend to threaten Officer Hawkins. The determination of whether a remark constitutes a threat is made on the basis of an objective analysis of whether the remark conveys a basis for fear. In the context of criminal prosecutions, where the prevailing evidentiary stаndard is much higher than that applicable to disciplinary proceedings, a person may be convicted of terroristic threats when “the words or conduct [are] of such a nature as would reasonably convey the menace or fear of death to the ordinary hearer.” State
Every witness who submitted a statement at Jacobs’s disciplinary hearing, either for the institution or for the inmate, supported the hearing officer’s determination that Jacobs had threatened an officer. Officer Hawkins’s report stated that in response to an order to produce his identificаtion card, Jacobs had yelled at the officer with threatening language. In direct reply to the officer’s order, Jacobs shouted, among other things, “Fuck you, I’m not giving you shit. If you want my ID step in to the back room.” Officer Wallace witnessed Jacobs’s threatening behavior, hearing Jacobs snarl that “my I/D is in my room motherfucker come and get it.” In addition, Officer Wallace heard Jacobs taunt Officer Hawkins by stating “come on, come on, I’ll fuck you up.”
Even Jacobs’s own testimony supported the hearing officer’s finding that Jacobs had threatened Officer Hawkins. At his disciplinary hearing Jacobs аdmitted that his remarks to Officer Hawkins were “heated” and that he had told Hawkins “to get the fuck out of [my] face.”
In addition, the statements of two inmate witnesses identified by Jacobs supported the finding of guilt. Inmate Garrett indicated that “Jacobs was angry” and that he was “arguing” with Officer Hawkins. Inmate Barnes stated that Jacobs “might” have used abusive language towards the officer, but denied any threat had been made.
Clearly, a reasonable mind could conclude that Jacobs had threatened Officer Hawkins. The remark that Jacobs admitted having made, telling the officer “to get the fuck out of [my] fаce” during a “heated” discussion, standing alone would be sufficient to justify the conclusion that a threat had been made. However, that threat was not the sole comment made by Jacobs, according to
We affirm the judgment of the Appellate Division.
Dissenting Opinion
dissenting.
The Department of Corrections disciplinary hearing implicated by this appeal violated the departmental regulation mandating that inmates bе afforded not less than twenty-four hours between notification of charges and commencement of the hearing for the purpose of preparing a defense. N.J.A.C. 10A:4-9.2. Although the issue was not raised, the hearing also violated N.J.A.C. 10A:4-9.12, which requires that “counsel substitutes” be afforded “at least 24 hours to prepare the inmate’s defense.” The record suggests that appellant’s counsel-substitute met with appellant for the first time a few minutes before the hearing. The Court acknowledges the twenty-four-hour-notice requirement to be of constitutional dimension, ante at 217-218,
I
The matеrial facts are not disputed. The offending conduct occurred at approximately 2:00 p.m. on September 14, 1992. A
II
Wolff, supra, 418 U.S. at 563-64, 94 S.Ct. at 2978-79,
if the minimum requirements of procedural due process are to be satisfied * * * written notice of the charges must be given to the disciplinary-action defendant in order to inform him of the charges and to enable him to marshal the facts and prepare a defense. At least a brief period of time after the notice, no less than 24 horn's, should be allowed to the inmate to prepare for the appearance before the Adjustment Committee.
[Id. at 563-64, 94 S.Ct. at 2978, 41 L.Ed.2d at 955-56.]
[t]he first requirement of procedural due process is notice. Wolff requires and the Standards provide “that written notice * * * be given to the disciplinary action defendant in order to inform him of the charges and to enable him to marshal the facts and prepare a defense. * * * [N]o less than 24 hours should be allowed to the inmate to prepare for the appearance before the Adjustment Committee.” See Standards, 254.262. Such notice of a specifiс alleged violation, plus the amplitude of general notice of prison rules, offenses, sanctions and the like, to which we have already referred, seem to us to fully satisfy constitutional and “fairness” requirements of notice.
Ubid. ]
Other courts presented with allegations that prison-disciplinary proceedings did not comply with the minimal twenty-four-hour-notice requirement have set aside the discipline imposed and, on occasion, assessed damages against prison officials. For example, in Martin v. Foti, 561 F.Supp. 252 (E.D.La.1983), inmates of a Louisiana state prison filed a
As to the first requirement of Wolff set forth above, however, it is clear that defendants have violated plaintiffs’ constitutional rights. The regulations themselves do not require any notice whatsoever to be given inmates of the charges for which they are brought before the disciplinary board, and the prison practice is clearly only to give oral notice, if that. In the specific instances in question,*227 moreover, plaintiffs requested written notice of the charges by requesting copies of the disciplinary reports.
Therefore, the Court finds that the defendants did violate plaintiffs’ constitutional rights under the Due Process Clause of the Fourteenth Amendment to receive written notification of the charges against them at least twenty-four hours prior to appearing before the disciplinary board.
[Id. at 261.]
See also Ex Parte Floyd,
The State asserts that the failure to afford Jacobs twenty-four-hours written notice of the charges prior to commencement of the hearing is not significant because neither Jacobs nor his counsel-substitute requested additional time when the Hearing Officer asked if they were prepared to proceed. However, the Hearing Officer was unaware that the hearing was beginning prematurely,
The Court concedes that Jacobs did not receive twenty-four-hours written notice of the charges in advance of the hearing, but concludes that the error was harmless because “overwhelming evidence supports the hearing officer’s determination that Jacobs threatened Officer Hawkins.” Ante at 219,
The Court’s harmless-error analysis also fails to recognize that the due-process rights applicable to prison-disciplinary proceedings are minimal protections, already having been watered down to reflect the unique requirements of a prison environment:
[T]he fact that prisoners retain rights under the Due Process Clause in no way implies that these rights are not subject to restrictions imposed by the nature of the regime to which they have been lawfully committed. * 11 * In sum, there must be mutual accommodаtion between institutional needs and objectives and the provisions of the Constitution that are of general application.
*229 [Wolff, supra, 418 U.S. at 556, 94 S.Ct. at 2975,41 L.Ed.2d at 951 .]
The requirement of at least twenty-four-hours notice of charges prior to a disciplinary hearing constitutes the Supreme Court’s resolution of the “mutual accommodation” required to balance the needs of prison discipline against the protections afforded by the Due Process Clause. That accommodation has been reflected in a mandatory regulation adopted by the Department of Corrections. N.J.A.C. 10A:4-9.2. In upholding thе sanctions imposed on Jacobs in the face of an undisputed violation of his due-process rights, the Court undervalues the importance of full compliance with the minimal constitutional protections afforded in prison-disciplinary hearings, and overestimates the importance of affirming the result in this proceeding.
The Supreme Court observed in Wolff, supra, that “[t]here is no iron curtain drawn between the Constitution and the prisons of this country.” 418 U.S. at 555-56, 94 S.Ct. at 2974,
I would reverse the judgment below and remand for a new disciplinary hearing.
For affirmance — Chief Justice WILENTZ and Justices HANDLER, POLLOCK and GARIBALDI — 4.
For reversal and remandment — Justice STEIN — 1.