Artway v. Pallone

• Decision Date: 29 October 1981
• Docket Number: No. 80-1980,80-1980
• Citation: 672 F.2d 1168
• Parties: ARTWAY, Alexander A., Appellant, v. PALLONE, Nathaniel J., Ph.D., Personally and As Chairman of The New Jersey Special Classification Review Board; And Frederick Rotgers, Personally And As Director of Psychological Services at Rahway State Prison. . Submitted Under Third Circuit Rule 12(6) on
• Court: U.S. Court of Appeals — Third Circuit

Page 1168

672 F.2d 1168

ARTWAY, Alexander A., Appellant, v. PALLONE, Nathaniel J., Ph.D., Personally and As Chairman of The New Jersey Special Classification Review Board; And Frederick Rotgers, Personally And As Director of Psychological Services at Rahway State Prison.

No. 80-1980.

United States Court of Appeals Third Circuit.

Submitted Under Third Circuit Rule 12(6) on Oct. 29, 1981.

Decided Feb. 17, 1982.

Alexander A. Artway, appellant pro se.

James R. Zazzali, Atty. Gen. of New Jersey, Andrea M. Silkowitz, Deputy Atty. Gen., Trenton, N. J., for appellees; J. Michael Blake, Deputy Atty. Gen., Trenton, N. J., of counsel.

David Ferleger, Philadelphia, Pa., amicus curiae.

Before ADAMS, VAN DUSEN and WEIS, Circuit Judges.

OPINION OF THE COURT

VAN DUSEN, Senior Circuit Judge.

I.

This appeal challenges a June 1980 final judgment of the United States District Court for the District of New Jersey, dismissing a civil rights complaint ¹ seeking declaratory and injunctive relief against state officials under the 1871 Civil Rights Act (42 U.S.C. §§ 1981 & 1985). The judgment was based on a record consisting of the pleadings, affidavits, and answers to interrogatories. For the reasons stated in this opinion, we will affirm the above judgment.

II.

This action arises out of plaintiff's May 1971 conviction of sodomy based on a jury verdict of the defendant's guilt and the subsequent determination by the trial and sentencing judge that (1) his conduct was characterized by a pattern of repetitive, compulsive behavior, and (2) violence was used in the commission of the offense. Although plaintiff contends that he did not commit sodomy, that any actions by him in relation to the victim were not done forcibly or with violence, and that the victim consented to all actions by all three male defendants on the November 1968 date of the crime, ² the testimony of the victim in the transcript of plaintiff's May 1971 criminal trial does not support such contentions. The transcript of that trial, during which he was found guilty of sodomy beyond a reasonable doubt by a jury, contains testimony by the victim that the actions of the defendants were violent and that she did not consent to them. ³ These assaults on her person by the defendants, as stated in her testimony, included sodomy committed by plaintiff who was a defendant in that criminal proceeding. See, for example, N.T. 42-48, 92-110, 116 & 132, State v. Artway, et al., New Jersey Superior Court, Criminal Law Division, Indictment No. I-311-68, Transcript of May 1971 trial, and June 24, 1971 Transcript containing ruling of the trial judge denying motion for new trial at N.T. 12-13. On appeal, the New Jersey Superior Court, Appellate Division, after reviewing the trial court record, concluded that the jury was justified in finding that "the act of sodomy was performed" and would have been justified in finding that the act was committed "forcibly against her will" were force an element of the offense. See State v. Artway, No. A.2817-74, Opinion of March 20, 1978, p. 3.

At the sentencing proceeding on March 27, 1975, ⁴ the trial judge stated:

"... I don't think we accomplished a thing in five years and by accomplishment I mean bringing him around mentally, emotionally to the point that he realizes this a number of years ago was a vicious, sick, awful, violent and forceful thing.

"Now, Menlo Park has categorized this man as compulsive and repetitive, which means that he is going to do it again, given the correct circumstance.... (T) his man is violent. What he and these two men did to that teenage kid out in the woods was sick.

"... they abused this kid, they humiliated her, committed Sodomy on her and played with her,....

"This man has to understand that he is sick, he is sick right now as he stands here today like he was five years ago....

"He today does not have the proper attitude towards treatment. Until he takes the first step and recognizes that he has got a problem, and an emotional problem the doctors can help him with he is never going to get anywhere.

"If he can ever bring himself to the place where he is honest with himself and admits to himself that he needs treatment and accepts help up there at that unit, then he will start to work himself out of this hole and he will get out of there in a limited time.

"I don't know whether he is ever going to come around but I don't like the present attitude, the present change of mind towards the authorities, that is he resents and thinks the doctors are wrong, he doesn't think there is anything wrong with him, he thinks he ought to be able to go free.

"Well, that's simply not so, he is wrong and all the doctors are in agreement that he is wrong. And he is simply not going to go free to hurt or humiliate or abuse anybody else.

" ... this many psychiatric reports with this many doctors saying the same thing, can't be wrong, that he had better face up to the fact that he has got a problem and start getting help with it.

"All right, because of the finding, Artway, that you're (compulsive) or repetitive because of the brutal nature of this sexual offense against this young woman, I have no choice but to sentence the law and this court that you be confined to a (sic) indeterminate period at the New Jersey State Prison Farm at Rahway, the Diagnostic Unit."

Transcript of March 27, 1975, proceedings at Mount Holly, N. J., Superior Court of New Jersey, Burlington County, Criminal Division, No. I-311-68, pp. 6-10. ⁵

Plaintiff was sentenced at the March 27, 1975, proceeding to an indeterminate term with a 20-year maximum. ⁶ At that time, N.J.S.A. 2A:164-8 contained these terms:

"Any person committed to confinement, as provided for in section 2A:164-6 of this title, may be released under parole supervision when it shall appear to the satisfaction of the state parole board, after recommendation by a special classification review board appointed by the state board of control of institutions and agencies, that such person is capable of making an acceptable social adjustment in the community. It shall be the duty of the chief executive officer of any institution wherein such a person is confined to report in writing at least semiannually to the commissioner concerning the physical and mental condition of such person with a recommendation as to his continued confinement or consideration for release on parole. The state board of control of institutions and agencies is hereby authorized and empowered to promulgate rules and regulations for the parole, revocation thereof for cause, and the proper supervision on parole of said persons when released from confinement."

The Supreme Court of New Jersey has interpreted the statutory scheme contained in the above-quoted N.J.S.A. 2A:164-3 et seq. (see footnote 4 and N.J.S.A. 2A:164-8 quoted in the text above), in State v. Clark, 65 N.J. 426, 323 A.2d 470, 472-75 (1980), as follows:

"The purpose of the sex offender act is cure through treatment of aberrations which caused the sexually deviant offenses rather than punishment. To that end the act provides for release under parole supervision 'when it shall appear to the satisfaction of the state parole board, after recommendation by a special classification review board appointed by the state board of control of institutions and agencies, that such person is capable of making an acceptable social adjustment in the community.' N.J.S.A. 2A:164-8. The converse is that if one so committed does not so respond to treatment and remains a menace to the community, he may be retained in confinement for the maximum term authorized for the crime of which he was convicted. (Citing cases.)

"The scheme of our sex offender act, as previously indicated, is the specialized institutionalization of those sex deviants whose abnormal conduct has resulted in conviction for certain designated sexual crimes, is compulsive and repetitive, and either is accompanied by violence or is imposed upon a victim under 15 years of age. The inherent legislative finding underlying the act is that such persons are suffering from mental and physical illness involuntarily causing their conduct, for which criminal incarceration, whether thought of as punishment or as a deterrent, will accomplish nothing; the same conduct will be repeated after release. The further assumption has to be that, in many cases, they will respond to specialized treatment and can be restored to normal, law-abiding lives. So they are to be paroled under supervision as soon as they are found 'capable of making an acceptable social adjustment in the community,' but in those cases where treatment is not effective, they are to remain institutionalized for the protection of society for the maximum period for which they could have been criminally sentenced for the crime involved. See history of the act and discussion in State v. Wingler, supra (25 N.J. at 169-176, 135 A.2d 468); State v. Lee, 60 N.J. 53, 54-57, 58, 286 A.2d 52 (1972). The whole thesis is commitment for treatment instead of a sentence for punishment, to which the judiciary must give appropriate recognition and sympathetic effect. We must also have confidence that the staff of the sex offender treatment unit, the special classification review board and the state parole board will carry out their heavy responsibilities conscientiously and fairly so that, on the one hand, sex offenders will not be released to the community until there is a reasonable certainty that repetition of the conduct will not occur and, on the other, that a person is not detained longer than is necessary to accomplish that end.

"... The long-time pattern of repetitive and compulsive behavior toward children and young males made it clear that defendant was ill, a menace and much in need of confinement and exposure to treatment...."

(Footnotes omitted.)

III.

The complaint seeks

(a) declaratory relief holding that defendants ⁷ have violated the constitutional ⁸ and...