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SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
GEORGE BENDER,
Petitioner-Appellant,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS,
Respondent-Respondent.
DOCKET NO.
A-4858-98T3
356 N.J. Super. 432; 812 A.2d 1154
October 23, 2002, Argued
January 9, 2003, Decided
The opinion of the court was delivered by
KING, P.J.A.D.
Appellant George Bender is currently incarcerated at the
Adult Diagnostic and Treatment Center (ADTC) in Avenel, Middlesex County. He
appeals from a final agency decision of the Department of Corrections (DOC)
which deprived him of commutation ("good time") and work credits for
his failure to participate in or fully cooperate with the sex offenders'
treatment program (SOTP) as required by N.J.S.A. 2C:47-4.1 and 2C:47-8. Among
other contentions, he claims that the treatment program compels his
self-incrimination in violation of the Fifth Amendment of the Federal
Constitution. Because the treatment program may require [*435] an inmate to
disclose information about crimes for which he may be prosecuted, upon penalty
of loss of institutional credits for good time and work, we find that the
statutory scheme invades a "liberty interest" protected by the
Federal Constitution. This loss of otherwise available credits against his
sentence, leading to a longer prison term, is a form of compulsory
self-incrimination which does not survive federal constitutional scrutiny. Without providing some type of use immunity,
the State cannot compel incriminating disclosures at the expense of loss of
freedom through a longer prison term. See
McKune v. Lile, 536 U.S. 24, 153 L. Ed. 2d 47, 122 S. Ct. 2017 (2002).
I
On May 10, 1996 appellant was convicted of two counts of
first-degree aggravated sexual assault and two counts of sexual assault for
engaging in sexual acts with juveniles, age twelve to sixteen, see N.J.S.A.
2C:14-2. He was declared eligible for the specialized treatment program at the
ADTC. N.J.S.A. 2C:47-1. His sentence imposed on May 10, 1996 was a thirty-year
base term with a fifteen-year mandatory minimum. Thereafter, he allegedly
failed to cooperate with the treatment program, which he is claimed to have
attended irregularly. As a result, the Institutional Classification Committee
(ICC) imposed a "loss of appropriate commutation time and work credits
against the time of his prison term," per N.J.S.A. 2C:47-8. Bender then
appealed the loss of these credits to William F. Plantier, the ADTC Administrator. On December 1,
1998 Plantier rejected his appeal, stating: "Your November 21, 1998
request for return of all credits lost by your failure to fully participate in
the therapy program is denied."
Bender then filed an appeal with this court and a motion to
proceed as an indigent. He claimed that Plantier's decision denying him his
commutation and work credits was contrary to his "procedural due process
right [resulting] in loss of [a] liberty interest." On March 2, 2000 the
DOC filed a motion for a remand [*436] to provide further administrative review
of the due process claims. We granted this remand motion on March 28, 2000.
The DOC then established a
uniform procedure at the ADTC for the loss of commutation and work credits for
inmates who fail to fully cooperate with treatment, effective April 1, 2000.
The policy provided for notice and a hearing before the ICC. The inmate would
have the opportunity to appear at the hearing with counsel-substitute, [**1157]
if requested. The policy also provided that the inmate could appeal the
decision of the ICC in writing to the Administrator of the ADTC.
On April 28, 2000 the ADTC
administration advised Classification Officer Ferro that Bender was scheduled
for the next ICC meeting to address the remand. Bender was provided with notice
the ICC would consider his loss of good time credits at a hearing on May 3,
2000. He was informed he could be present and heard with counsel-substitute.
Bender asked for assistance by counsel-substitute, Edward Walker.
At the hearing, the ICC reviewed with Bender and Walker
the reason for the hearing, the nature of the proceeding, and Bender's failure
to participate in treatment. The ICC reviewed Bender's treatment record which
revealed he attended one group therapy session in his first six months at ADTC
and less than 50% of his therapy sessions during his second six months.
At the hearing Bender did not present evidence to refute his
poor attendance record. Walker admitted Bender was not fully participating in
the treatment. Walker stated that Bender believed "he should not have been
discredited for not participating in therapy because the treatment service
staff was not licensed." On May 4,
2000 Bender was given a notice approving the loss of commutation and work
credits because he failed to sufficiently participate in treatment with less
than 100% attendance. He was told he could appeal the decision of the ICC to
the Administrator. On May 5, 2000 Bender appealed the decision to Acting
Administrator Rogers who upheld the decision, stating that Bender provided her
with no basis for reversal of the ICC's decision.
[*437] Bender filed a motion
to return the proceedings to this court on May 30, 2000. The DOC did not oppose
Bender's motion.
We had initially considered
the matter in the Fall of 2001 but decided to invite the Office of the Public
Defender to appear for the pro se appellant on the Fifth Amendment
self-incrimination claim. The Public Defender now has briefed and argued that
issue. We reconsidered the matter in October 2002.
II
Bender raises several issues
on this appeal in addition to his Fifth Amendment and Due Process claims. They
are:
1. His therapists have engaged in malpractice by
virtue of their lack of professional qualifications in violation of the State
Constitution.
2. The ADTC treatment program violated his Fourth and Eighth
Amendment rights.
3. The use by the DOC of a "phase" system at the ADTC
exceeded administrative authority under N.J.A.C. 10A.
4. The makeup of the ICC violated N.J.A.C. 10A:9-3.1 and 2.
We find these claims have no
merit. They are unsupported in the record and do not warrant discussion in a
written opinion. R. 2:11-3(e)(1)(D) and (E).
III
Commutation credits, or
"good time" credits, are given to an inmate upon his entry into the
correctional system. N.J.S.A. 30:4-140;
N.J.A.C. 10A:9-5.1. The credits range from 72 days for one year to 3,984 days
for 30 years. Work credits are provided to an inmate on an ongoing basis as the
inmate continues to work. N.J.S.A. 30:4-92; N.J.A.C. 10A:9-5.1(b). Such
remission in sentence time "shall not exceed one day for each five
[**1158] days of productive occupation, . . ." N.J.S.A. 30:4-92. Both
commutation and work credits may be taken from an inmate for a variety of
reasons, including misconduct, under N.J.S.A. 30:4-140 and N.J.A.C.
10A:9-5.3(a); filing of a complaint deemed frivolous by a court and intended
for a malicious purpose and to harass, under [*438]N.J.A.C. 10A:9-5.3(b); and
failure to fully participate in sex offender treatment, under N.J.S.A. 2C:47-8.
If an offender incarcerated
at the ADTC fully cooperates with all treatment offered during that time, then
the offender's sentence "shall be reduced by commutation time for good
behavior and credits for diligent application to work." N.J.S.A.
2C:47-3(g). (We use the term "good time credits" to include both commutation time for good behavior and
credit for diligent application to work.) As an example, according to the
progressive commutation schedule, a thirty-year maximum sentence can be reduced
by a maximum of 3,984 days for "continuous orderly deportment. " A fifteen-year sentence can be reduced
by a maximum of 1,632 days for good behavior. N.J.S.A. 30:4-140. In addition,
as noted, inmates can receive remission of time up to one day for every five
days of "productive occupation." N.J.S.A. 30:4-92. However,
a term of imprisonment imposed
on a person confined to the Adult Diagnostic and Treatment Center . . . shall
not be reduced by progressive time credits or credits for diligent application
to work and other institutional assignments for any year or fractional part of
a year if the person failed to fully cooperate with all treatment offered to
him during that time period.
[ N.J.S.A. 2C:47-8].
Bender argues that he was not
informed that N.J.S.A. 2C:47-8 applied to him, and he was deprived of his
federal due process rights. He contends that this statutory penalty was not
part of the inmate orientation sessions provided by N.J.A.C. 10A:8-2.4 to
inform inmates of their rights and available services. Bender also contends he
was denied a meaningful hearing before his good time credits were revoked.
Finally, he claims that he was denied the due process protection of the New
Jersey Constitution.
The removal of "good
time" credits from an inmate implicates a protected liberty interest.
Inmates subjected to that penalty have a right to due process protection. Wolff v. McDonnell, 418 U.S. 539, 555, 41 L.
Ed. 2d 935, 94 S. Ct. 2963 (1974). In New Jersey, an inmate has certain
procedural rights before losing "good time" credits:
(1) Written notice of the
charges;
[*439] (2) An impartial
tribunal;
(3) A limited right to call
witnesses and present evidence;
(4) A limited right to
confront and cross-examine adverse witnesses;
(5) A right to a written
statement of the evidence relied on and reasons for the sanctions imposed;
(6) Provision of
counsel-substitute.
[ Avant v. Clifford, 67 N.J.
496, 525-529, 341 A.2d 629 (1975).]
Recognizing Bender's initial procedural due process contention, the DOC
moved to remand the case for further review, and prepared a "uniform
procedure" for denial of commutation and work credits for inmates who fail
to participate fully in treatment. As noted, Bender was provided with notice
and a hearing before the ICC where he was represented by a counsel-substitute.
IV
The State
first contends that because the Fifth Amendment self-incrimination [**1159] issue was not raised at the
administrative level, we should decline to entertain it. The State also
contends that appellant has not exhausted his administrative remedies on this
claim. Appellant raises a constitutional question, not implicating agency
expertise. In such circumstances, the exhaustion requirement is relaxable.
Pressler, Current N.J. Court Rules, comment 2 on R. 2:2-3[a](3) (2002); see Sanchez v. Dept. of Human Servs., 314
N.J. Super. 11, 32, 713 A.2d 1056 (App. Div. 1998). Moreover, we anticipate the
issue will recur and requires prompt judicial resolution.
We are satisfied that the Supreme Court's decision in McKune v.
Lile, 536 U.S. 24, 153 L. Ed. 2d 47, 122 S. Ct. 2017 (2002), decided last June
prohibits the State from extracting information from an inmate about his past
criminal history, not the subject of a conviction, under penalty of loss of
good time and work credits, thus effectively extending his prison term. We
conclude that denial of such credits, to the extent that the sanction is
imposed under N.J.S.A. 2C:47-8 and the SOTP for refusal to answer
questions about a criminal history, for which a defendant potentially may face
prosecution, violates the Fifth Amendment of the [*440] federal constitution
which states that "no person . . . shall be compelled in any criminal case
to be a witness against himself, . . . ." U.S. Const. amend V. The
privilege against self-incrimination was established "as part of the
criminal law's shaping of a true accusatorial system," and was a reaction
to the courts of High Commission and Star Chamber, among other abusive
practices in England. LaFave, Israel & King Criminal Procedure, § 8.14(b)
at 289 (West 1999). The privilege "reflects many of our fundamental values
and most noble aspirations" including "our unwillingness to subject
those suspected of crime to the cruel trilemma of self-accusation, perjury or
contempt." Murphy v. Waterfront Comm'n of New York Harbor, , 378 U.S. 52,
55, 12 L. Ed. 2d 678, 84 S. Ct. 1594 (1964).
In McKune v. Lile, a 4-1-4
decision, the United States Supreme Court recently approved the Kansas sex
offenders program which inflicted certain institutional sanctions for
non-cooperation with the program but stopped short of penalties which imposed
more prison time for refusing to admit or discuss past crimes not the subject
of convictions. In upholding the Kansas program, Justice Kennedy spoke for the
plurality (Justices Rehnquist, Scalia and Thomas); Justice O'Connor concurred,
as the swing vote to create a majority; Justice Stevens spoke for the minority
of four (Justices Souter, Breyer and Ginsburg).
As part of the Kansas Sexual
Abuse Treatment Program (SATP) participating inmates were "required to
complete a sexual history form which detailed all prior sexual activities,
regardless of whether such activities constituted uncharged criminal offenses.
A polygraph was used to verify the accuracy and completeness of the offender's
sexual history." Id., 153 L. Ed. 2d at 55. Although there was no evidence
before the Court that incriminating information has ever been disclosed under
that program, "the release of [such] information is a possibility,"
the plurality observed. Ibid. Justice Kennedy summarized the factual and
procedural context of McKune v. Lile, 153 L. Ed. 2d at 55, this way:
[*441] Department officials
informed respondent that if he refused to participate in the SATP, his
privilege status would be reduced from Level III to Level I. As part of this
reduction, respondent's visitation rights, earnings, work opportunities,
ability to send money to family, canteen expenditures, access to a personal
television, and other [**1160]
privileges automatically would be curtailed. In addition, respondent
would be transferred to a maximum-security unit, where his movement would be
more limited, he would be moved from a two-person to a four-person cell, and he
would be in a potentially more dangerous environment.
Respondent refused to participate, in the SATP on the
ground that the required disclosures of his criminal history would violate his
Fifth Amendment privilege against self-incrimination. He brought this action
under 42 USC § 1983 [ 42 USCS § 1983] against the warden and the secretary of
the Department, seeking an injunction to prevent them from withdrawing his
prison privileges and transferring him to a different housing unit.
[ McKune, 153 L. Ed. 2d at
55.]
The plurality found: (1) the
Kansas program was supported by the legitimate penalogical objective of
rehabilitation, (2) the State's refusal to offer legal immunity from
prosecution on the basis of statements made in the course of the program did
not render it invalid, and (3) the element of compulsion was lacking because
the adverse consequences for not participating were related to the program's
objectives and did not constitute atypical and significant hardships in
relation to the ordinary incidents of prison life. In sum, the cost to the
inmate of exercising his Fifth Amendment privilege was not so significant or
compulsory as to give rise to a constitutional claim. Justice Kennedy stated:
The consequences in question here -- -- a transfer to
another prison where television sets are not placed in each inmate's cell,
where exercise facilities are not readily available, and where work and wage
opportunities are more limited -- -- are not ones that compel a prisoner to
speak about his past crimes despite a desire to remain silent. The fact that
these consequences are imposed on prisoners, rather than ordinary citizens,
moreover, is important in weighing respondent's constitutional claim.
[ 153 L. E.2d at 58-59.]
Of considerable
significance to our decision, Justice Kennedy carefully observed:
In the present case, respondent's decision not to participate in
the Kansas SATP did not extend his term of incarceration. Nor did his decision
affect his eligibility for good time credits or parole. [Lile v. McKune], 224
F.3d 1175, 1182. Respondent instead complains that if he remains silent about
his past crimes, he will be transferred from the [*442] medium security unit --
-- where the program is conducted -- to a less desirable maximum security unit.
[ 153 L. E.2d at 60.]
Justice O'Connor's swing vote
provided a decisional majority; she also did "not believe that the
alterations in respondent's prison conditions as a result of his failure to
participate in the Sexual Abuse Treatment Program (SATP) were so great as to
constitute compulsion for the purposes of the Fifth Amendment's privilege
against self-incrimination." 153 L. E.2d at 67. She did expressly conclude
that penalties which created longer incarceration for exercise of the Fifth Amendment privilege went over the
constitutional line, stating:
The penalties potentially
faced in these [penalty] cases -- -- longer incarceration and execution -- are
far greater than those we have already held to constitute unconstitutional
compulsion in the penalty cases. Indeed, the imposition of such outcomes as a
penalty for refusing to incriminate oneself would surely implicate a
"liberty interest."[**1161]
[ 153 L.E.2d at 69.]
The exaction of a penalty of
"longer incarceration" for remaining silent about prior sexual history
thus appears beyond the constitutional pale, according to at least six members
of the United States Supreme Court.
Of course, in McKune v. Lile,
the minority of four, through Justice Stevens, sternly rejected the plurality's
conclusion and Justice O'Connor's distinction between "longer
incarceration" and other institutional penalties. Justice Stevens said:
Based on an ad hoc appraisal
of the benefits of obtaining confessions from sex offenders, balanced against
the cost of honoring a bedrock constitutional right, the plurality holds that
it is permissible to punish the assertion of the privilege with what it views
as modest sanctions, provided that those sanctions are not given a
"punitive" label. As I shall explain, the sanctions are in fact severe,
but even if that were not so, the plurality's policy judgment does not justify
the evisceration of a constitutional right. Despite the plurality's meandering
attempt to justify its unprecedented departure from a rule of law that has been
settled since the days of John Marshall, I respectfully dissent.
[ Id. at 70-71.]
The minority expressed that "the program's laudable goals,
however, do not justify reduced constitutional protection for those ordered to
participate." Id. at 2043, 153 L. Ed. 2d at 79. The [*443] minority
thought "the most obvious alternative is to grant participants use
immunity." 153 L. Ed. 2d at 80. The program's "rehabilitative
goals" would probably be furthered by promoting "free and open
discussion" without the threat of prosecution stemming from a
participant's statements in therapy sessions. 153 L. Ed. 2d at 80. We must
conclude that a majority of the Supreme Court, based on the expressions in
McKune v. Lile, would condemn the sanction of a longer term of incarceration
for exercise of the privilege if an inmate declines to discuss past crimes, not
the subject of convictions, in therapy. On a fifteen-year sentence, the inmate
could lose 1,632 days commutation time; on a thirty-year sentence, the loss is
3,984 days. This is an addition of substantial hard time, not a loss of prison
privileges and amenities. Accord, Weaver v. Graham, 450 U.S. 24, 33-34, 101
S.Ct. 960, 966-967, 67 L. Ed. 2d 17 (1981) (statute reducing number of
good-time credits available to prisoners had effect of delaying release on
parole and was a punitive measure which could only be applied to cases
involving criminal conduct occurring on or after its effective date).
V
With this understanding of the applicability of the
privilege against self-incrimination to
the inmate's "liberty interest," we admit great difficulty applying
the principle to the facts of this particular case because appellant never
explicitly claimed the privilege during his "course of treatment" or
during the administrative proceedings. The DOC claims that appellant was
penalized by loss of credits against his sentence only because he did not
attend the program at all over a considerable period of time or only
sporadically for another period. The DOC insists he was not penalized for refusing
to disclose and discuss past crimes.
We remand for a new administrative hearing where the
appellant may assert the privilege and contend that the penalty imposed is
unsupportable by evidence other than his refusal to disclose information about
past offenses not the subject of convictions. [*444] The agency decision-maker
may evaluate this fresh presentation[**1162]
of the matter and provide detailed findings and conclusions based on
reasons independent of the claim of privilege for the penalties, if so imposed.
The hearing should be transcribed on tape so that a record is available to us
in the event of a further appeal. The inmate cannot be docked otherwise
available credits solely because of his claim of privilege. But he cannot avoid participating in
and cooperating with an otherwise non-incriminatory treatment program simply
because he asserts a claim of privilege.
Finally, the DOC's reliance on the appellant's right to claim a
privileged communication under the psychologist and client privilege, N.J.S.A.
45:14B-28; N.J.R.E. 505, or the pertinent regulations, N.J.A.C. 10A:16-44;
N.J.A.C. 10A:221.1 to -2.12, relating to confidentiality of inmates' records,
does not trump his federal claim of the privilege against self-incrimination.
The Fifth Amendment constitutional privilege is broader than the state
statutory or regulatory privileges, and is not subject to the same exceptions
or security concerns. See State v.
Snell, 314 N.J. Super. 331, 338, 714 A.2d 977 (App. Div. 1998) (exception for
N.J.S.A. 9:6-8.10 obligation imposed upon "any person" to report
evidence of child abuse to DYFS). The constitutional privilege against
self-incrimination does not yield in this circumstance to anything short of
coextensive use immunity, which the executive or legislative branches have not
provided. United States v. Hubbell, 530
U.S. 27, 37-40, 147 L. Ed. 2d 24, 36-38, 120 S. Ct. 2037 (2000); New Jersey v.
Portash, 440 U.S. 450, 459, 59 L. Ed. 2d 501, 510, 99 S. Ct. 1292 (1979).
For the sake of completeness, we comment on the DOC's
explanation of its SOTP. The DOC says in its brief that inmates are encouraged
to discuss their sexual proclivities, thoughts and feelings but at no time are
they required to admit guilt or discuss specific details regarding the offense
for which they stand convicted or to provide specific details of "other
past sexual misdeeds that could lead to criminal prosecution nor are they
encouraged to [*445] do so." An inmate is "encouraged to discuss his
behavior but not required to provide identifying information, such as names,
relationship, places or time frame, that could lead to prosecution." The
State in its brief assures us that:
Pursuant to N.J.S.A. 2C:47-8, work and/or commutation
credits are only removed from an inmate's term of imprisonment if the inmate
fails to fully cooperate with all treatment offered to him. (Graffin
Certification P10). Inmates are advised that the determination of "full
cooperation" is based on attendance and the quality of participation, and
not the information that is disclosed during therapy. More specifically, other
than excused absences, such as medical
illness, inmates are expected to attend 100 percent of the treatment sessions
(Graffin Certification P12). Moreover, although inmates are not required to
admit guilt or divulge deviant behavior, inmates are required to participate at
a level commensurate with their cognitive ability. (Graffin Certification P13).
In other words, an inmate is deemed to be cooperating in treatment if he is working
adequately in therapy but does not disclose specific deviant behavior that
could lead to prosecution (Graffin Certification P13). Only those individuals
who either fail to attend treatment sessions and/or refuse to participate in
treatment are subject to the penalties imposed in N.J.S.A. 2C:47-8, loss of
work and commutation credits, and/or N.J.S.A. 2C:47-4.1, transfer out of the
Adult Diagnostic and Treatment Center. (Graffin Certification P14).
However, the workbooks given to the inmates suggest a different theme.
For [**1163]example, some of the therapy exercises require specific details
about past sexual experiences.
What is Sexual Assault?
How many victims have you had
- not how many convictions, counts, charges - how many victims? Describe by
first name only, age. How did you sexually abuse them?
Describe what you did during
the sexual assault, in detail. Describe how you set up your victim,
manipulated, coerced or forced them.
*****
RECOGNIZING YOUR DEVIANT
CYCLE:
You may be aware of your
deviant cycle at this time. You will need to carefully study your various
offenses - all of them, not just those that you were caught committing. Then
you will need to figure out what those acts had in common. Look at some of the
factors relating to the victims.
The sex of my victims was: They were all between ----- and ----- years of age. They shared the following physical characteristics. They shared the following personality characteristics. I choose them because. I offended in the following physical environment (list as many as necessary). I offended between the following times.
[*446] [Bender Appendix A -
"Facing The Shadow" pages 6,20]
The DOC assures us that the
inmate can "opt out" of answering these questions and is so advised.
The record is unclear on this assurance.
Again, we stress that the inmate cannot be deemed uncooperative
with the program and lose credits at the cost of invoking his historic, bedrock
privilege against self-incrimination. This result is compelled by McKune v.
Lile and the SOTP must be administered to comply therewith. In view of our
ruling on federal constitutional grounds, we decline to entertain the State
constitutional claim.
Remanded for further
administrative proceedings.