AL-TARIQ JACOBS, APPELLANT-APPELLANT, v. ROBERT STEPHENS, RESPONDENT-RESPONDENT.
Supreme Court of New Jersey
Argued September 12, 1994-Decided January 25, 1995.
652 A.2d 712
Madeleine W. Mansier, Deputy Attorney General, argued the cause for respondent (Deborah T. Poritz, Attorney General of New Jersey, attorney; Joseph L. Yannotti and Mary C. Jacobson,
Al-Tariq Jacobs submitted briefs pro se.
The opinion of the Court was delivered by
GARIBALDI, J.
In this appeal, as in McDonald v. Pinchak, 139 N.J. 188, 652 A.2d 700 (1995), also decided today, Al-Tariq Jacobs, 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, Jacobs asserts that the hearing officer failed to adhere to the Department of Corrections’ own regulations that the inmate shall have twenty-four hours to prepare a defense. He also asserts that the hearing officer violated
As in McDonald, we reaffirm the standards set forth in Avant v. Clifford, 67 N.J. 496, 341 A.2d 629 (1975), and in the Department of Corrections (DOC) regulations, but we modify some of DOC‘s disciplinary hearing practices to ensure further that DOC properly implements the standards announced in Avant and its own regulations, and fairly conducts disciplinary hearings.
I
Inmate Jacobs was charged with “threatening another with bodily harm” in an argument with a prison guard, in violation of
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 inmаte 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 counsel substitute had requested more time.
The one-page hearing report indicates Jacobs‘s dеfense 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 correctly 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 rights 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, 652 A.2d at 702-705. In 1974, the United States Supreme Court set forth the minimal federal due-process requirements for prison disciplinary hearings. In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed. 2d 935 (1974), the Court held that Nebraska‘s provision permitting prison officials to give inmates oral notice of charges only at the time of a disciplinary hearing violated the Fourteenth Amendment. Id. at 565, 94 S.Ct. at 2979, 41 L.Ed.2d at 955-56. The Court ruled that written notice must be given to an inmate charged with a violation “to inform him of the charges and to enable him to marshall the facts and prepare a defense.” Id. at 565, 94 S.Ct. at 2979, 41 L.Ed.2d at 956. The Court stated, “At least a brief period of time after the notice, no less than twenty-four hours, should be allowed to the inmate to prepare for the appearance before the Adjustment Committee.” Ibid.
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-hаlf 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 stated 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 сounsel 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 the 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, 808 F.2d 214, 218 (2d Cir. 1986); Chapman v. United States, 553 F.2d 886, 891 (5th Cir. 1977); United States v. Dougherty 473 F.2d 1113, 1127 (D.C. Cir. 1972). Harmless error may not be applied to rights that are essential to the fundamental fairness of a trial, like self-representation. Ibid.; e.g. Gideon v. Wainwright 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); accord Giano v. Sullivan, 709 F. Supp. 1209, 1217 (S.D.N.Y. 1989) (finding that harmless error could not be applied to inmate‘s disciplinary hearing, which resulted in a special, five-year confinement without any phone, package, or commissary privileges, because both his right to marshal evidence and present a defense and right to an impartial hearing officer were denied).
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 Kahl v. Brennan, 855 F. Supp. 1413, 1421 (M.D. Pa. 1994). Onсe 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, 457 So. 2d 961, 962 (Ala. 1984) (holding that twenty-four-hour notice should apply in inmate‘s case where he “received a copy of the written charge ... three days after his disciplinary hearing“); O‘Malley v. Sheriff of Worcester County, 415 Mass. 132, 612 N.E.2d 641, 647 n. 12 (1993) (holding that twenty-four-hour notice should apply in inmates’ cases where no notice of the charges against them was given before the disciplinary proceeding); Cooper v. Morin, 91 Misc. 2d 302, 398 N.Y.S.2d 36, 65 (citing twenty-four-hour notice from Wolff, supra, and noting that newly amended New York state standards did not satisfy the requirements of Wolff). We apply the harmless-error rule to the alleged deprivation of Jacob‘s right to have the full twenty-four hours to prepare his defense because it is not a right that is essential to the fundamental fairness of his hearing, and because we find no prejudice. Hence, we do not remand this case for another disciplinary hearing.
III
Whether Jacobs is actually claiming that the hearing officer violated
Instead, Jacobs complains that he was unable fully to investigate or prepare his case. For example, although
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 principle 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, 341 A.2d 629. We are unable to determine whethеr Jacobs was so informed, but we conclude that even if he was not so informed, he was not prejudiced because the testimony of his inmate witnesses did not support his position. In future cases, however, the inmate will be deemed informed because he must sign an amended Adjudication Form, see McDonald, supra, 139 N.J. at 199, 652 A.2d at 705, one of whose questions will be whether the inmate seeks confrontation or cross-examination.
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 languаge, 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 standard 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 v. Nolan, 205 N.J. Super. 1, 4, 500 A.2d 1 (App. Div. 1985); accord
Every witness who submitted а 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 identification 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 сome 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 admitted 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 lаnguage 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] face” 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.
STEIN, J., dissenting.
The Department of Corrections disciplinary hearing implicated by this appeal violated the departmental regulation mandating that inmates be afforded not less than twenty-four hours between notification of charges and commencement of the hearing for the purpose of preparing a defense.
I
The material 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, 41 L.Ed.2d at 955-56, reveals that the twenty-four-hour-notiсe requirement is rooted in due process. Inmates of the Nebraska Penal and Correctional Complex instituted suit alleging that various disciplinary practices and proceedings at the Complex did not comply with the Due Process Clause of the Fourteenth Amendment to the Federal Constitution. Among the challenged procedures was the Nebraska Complex‘s practice of providing inmates charged with disciplinary violations oral notice of the charges “somewhat in advance” of the hearing before the committee responsible for imposing discipline, and on other occasions providing inmates with their first notice of charges at the time of the hearing before the committee. Id. at 564, 94 S.Ct. at 2979, 41 L.Ed.2d at 955. Finding the challenged practice to be constitutionally inadequate, the Court held that
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 hours, should be allowed to the inmatе to prepare for the appearance before the Adjustment Committee.
[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 defеnse. * * * [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 specific 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.
[Ibid.]
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,
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, supra, 457 So. 2d at 962 (reversing prison-disciplinary board ruling depriving inmate of good-time credits, and holding that failure to provide twenty-four-hours prior written notice of charges violated prisoner‘s due-process rights); Kelly v. State, 455 So. 2d 1016, 1017 (Ala. Crim. App. 1984) (holding that failure of prison officials to provide inmate with at least twenty-four-hours prior written notice of charges constituted denial of due-process rights); O‘Malley v. Sheriff of Worcester County, supra, 415 Mass. at 132, 612 N.E.2d 641, 647 n.12 (holding that failure of prison officials to provide prisoners with written notice of charges at least twenty-four hours prior to disciplinary hearing violated inmates’ due-process rights); Cooper v. Morin, supra, 91 Misc. 2d at 302, 398 N.Y.S.2d at 64-65 (holding that due-process requirement of twenty-four-hour advance notice of disciplinary charges applied to inmate-disciplinary proceedings in county jails), aff‘d and modified on other grounds 64 A.D.2d 130, 409 N.Y.S.2d 30 (1978), modified 49 N.Y.2d 69, 424 N.Y.S.2d 168, 399 N.E.2d 1188 (1979), cert. denied, 446 U.S. 984, 100 S.Ct. 2965, 64 L.Ed.2d 840 (1980); People v. Stoddard, 107 Misc. 2d 964, 435 N.Y.S.2d 1003, 1004 (Cty. Ct. 1980) (reversing disciplinary sanction, and holding that notwithstanding inmate‘s admission of guilt, provision of eighteen-hour rather than twenty-four-hour advance written notice of charges constituted due-process violation).
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, thе 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, 652 A.2d at 715. No justification exists, however, for diluting the due-process rights of prisoners by application of a harmless-error analysis. See Giano v. Sullivan, supra, 709 F. Supp. at 1217 (“We decline to apply harmless error analysis to the constitutional defects in petitioner‘s disciplinary hearing.“); see also Von Kahl v. Brennan, 855 F. Supp. 1413, 1422 (M.D. Pa. 1994) (“To the extent that the regulations in fact actually track the requirements of due process, failure to comply with them is subject to reversal * * *“).
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 imposеd by the nature of the regime to which they have been lawfully committed. * * * In sum, there must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.
[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 refleсted in a mandatory regulation adopted by the Department of Corrections.
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, 41 L.Ed.2d at 950. The Court dishonors that principle when it ignores a clear violation of due-process rights simply because the evidence established the inmate‘s guilt of the charged offense. Rather than encouraging compliance with the minimal due-process protections applicable to disciplinary hearings, the Court‘s holding signals that violations of prisoners’ due-process rights are of less significance than determinations of guilt. That value judgment overlooks the purpose of affording due-process protections in prison-disciplinary proceedings, which is to assure that the hearings are fairly conducted and that the inmates have adequate opportunity to assert a defense.
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.