Conway v. Cumming

• Decision Date: 09 July 1993
• Docket Number: No. 92-286,92-286
• Citation: 161 Vt. 113,636 A.2d 735
• Court: Vermont Supreme Court
• Parties: Charles CONWAY v. Georgia CUMMING, Philip Fitzpatrick, Philip Scripture and Joseph Patrissi.

Page 735

636 A.2d 735

161 Vt. 113

Charles CONWAY v. Georgia CUMMING, Philip Fitzpatrick, Philip Scripture and Joseph Patrissi.

No. 92-286.

Supreme Court of Vermont.

July 9, 1993.

Motion for Reargument Denied

Nov. 2, 1993.

[161 Vt. 114] Charles Conway, pro se.

Jeffrey L. Amestoy, Atty. Gen., Montpelier, and Thomas J. Rushford, Asst. Atty. Gen., Waterbury, for defendants-appellees.

Before: ALLEN, C.J., GIBSON, DOOLEY and JOHNSON, JJ., and PECK, J. (Ret.), Specially Assigned.

GIBSON, Justice.

Plaintiff was convicted of sexual assault, sentenced to a term of five to twenty years, and is now an inmate committed to the custody of the Commissioner of Corrections. He appeals from a judgment of the Chittenden Superior Court denying injunctive relief to direct the Commissioner to restore plaintiff's furlough status. We affirm.

As an inmate, plaintiff participated in the Vermont Treatment Program for Sexual Aggressors (VTPSA) as part of a rehabilitation effort. In October 1989, the Commissioner began granting plaintiff furloughs to be in the community for short visits. See 28 V.S.A. § 808(a). In September 1990, the Commissioner revoked plaintiff's participation in the furlough program on the ground that plaintiff had engaged in negative behavior, the specific nature of which is not before us. The Commissioner did not provide plaintiff with a hearing or other process in which he could respond to the reasons given for revoking his furlough status. Thereafter, plaintiff sought an injunction challenging the Commissioner's decision on grounds that a revocation without hearing violated his rights under the United States and Vermont constitutions as well as under Vermont statutory law. ¹ The trial court denied the relief, concluding that plaintiff's furlough status was not a protected liberty interest under the United States Constitution and that Vermont law did not create a protected liberty interest in furloughs. This appeal followed.

I.

The central issue on appeal is whether plaintiff's due process rights were violated when his furlough status was terminated without a hearing. Under the United States Constitution, "due process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). In the context of a prison environment, those protections have been subject to the necessarily broad discretionary authority of prison officials over prison administration. Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 126, 97 S.Ct. 2532, 2538, 53 L.Ed.2d 629 (1977). " 'Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.' " Id. at 125, 97 S.Ct. at 2537 (quoting Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948)). The United States Supreme Court has "consistently refused to recognize more than the most basic liberty interests in prisoners." Hewitt v. Helms, 459 U.S. 460, 467, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983). We must decide, therefore, whether furlough status confers a liberty interest derived either from the federal constitution or from the Vermont statutory scheme.

Plaintiff cites Morrissey as support for the proposition that his liberty interest is protected by the United States Constitution. In that case, the Supreme Court held that the due process clause of the Constitution protected the liberty interest of a person on parole. 408 U.S. at 482. But the constitutional reach of Morrissey has generally stopped at the prison walls. Thus, the Court has found no constitutional right in placement in any particular prison, Meachum v. Fano, 427 U.S. 215, 224-25, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976), state of the union, Olim v. Wakinekona, 461 U.S. 238, 245, 103 S.Ct. 1741, 1745, 75 L.Ed.2d 813 (1983), or particular section of a prison, Hewitt v. Helms, 459 U.S. at 468, 103 S.Ct. at 869. Further, the Court has held that the Constitution provides no guarantee or right to an inmate in obtaining parole, Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668 (1979), ² or good-time credit for satisfactory behavior, Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). The We hold that plaintiff's status under furlough more closely resembles that of an inmate seeking a particular right or status within an institution, rather than that of a parolee. Supervision of plaintiff by the Commissioner both under law and in practice was not diminished by his furlough status. He not only remained incarcerated, but his enrollment in VTPSA imposed a number of behavioral mandates and restrictions that would not have applied to him as an inmate under the usual rules and restrictions governing inmates generally. Significantly, the law makes a clear distinction between the consequences of absconding while on furlough, which would constitute the crime of escape and could lead to an added prison term, ³ and the violation of parole, for which an offender risks return to the custody of the Commissioner for the unexpired term of the original sentence. 28 V.S.A. § 552(b)(2); see Asherman v. Meachum, 213 Conn. 38, 566 A.2d 663, 668 (1989). In sum, no liberty interest in furlough status may be asserted directly under the United States Constitution. See Nash v. Black, 781 F.2d 665, 668 (8th Cir.1986); Baumann v. Arizona Dep't of Corrections, 754 F.2d 841, 845 (9th Cir.1985); cf. Asherman, 566 A.2d at 668 (no constitutionally derived liberty interest in home-release status); Jenkins v. Fauver, 108 N.J. 239, 528 A.2d 563, 570-71 (1987) (no liberty interest implicated by reclassification of all prisoners with prior homicide convictions to more restrictive custodial category); People ex rel. Feliciano v. Waters, 99 A.D.2d 850, 472 N.Y.S.2d 455, 456 (1984) (loss of eligibility to participate in work-release program not a violation of any cognizable right); Mitchell v. Meachum, 770 P.2d 887, 890 (Okla.1988) (no liberty interest in situs of confinement).

issue then is whether plaintiff's furlough status more closely resembles that of a parolee, whose liberty interest Morrissey would protect, or that of an incarcerated person, in which case a federal constitutional right is not guaranteed.

Our analysis of claims arising directly under the federal constitution does not end the inquiry, however. We must next ask whether a protectible interest in furlough status has been created by Vermont statute, and, if so, whether that interest should be recognized under the federal constitution. See Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 461, 109 S.Ct. 1904, 1909, 104 L.Ed.2d 506 (1989) ("state law may create enforceable liberty interests in the prison setting"). Under both federal and state law, the answer depends on whether the inmate asserting the right has "a legitimate claim of entitlement" to the interest, id. at 460, 109 S.Ct. at 1908, rather than a mere " 'unilateral hope.' " Id. (quoting Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 465, 101 S.Ct. 2460, 2465, 69 L.Ed.2d 158 (1981)). As the Court stated in Olim v. Wakinekona, 461 U.S. at 249, 103 S.Ct. at 1747:

[A] State creates a protected liberty interest by placing substantive limitations on official discretion. An inmate must show "that particularized standards or criteria guide the State's decisionmakers." Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 467, 101 S.Ct. 2460, 2466 (1981) (Brennan, J., concurring). If the decisionmaker is not "required to base its decisions on objective and defined criteria," but instead "can deny the requested relief for any constitutionally permissible reason or for no reason at all," ibid., the State has not created a constitutionally protected liberty interest.

In Thompson, the Supreme Court acknowledged that the prison visitation regulations of the Kentucky Department of Corrections contained "substantive predicates," which "undoubtedly are intended to guide the duty officer's discretion in making the ultimate decision." 490 U.S. at 464, 109 S.Ct. at 1910. The Court stressed, however, that state regulations would be read to create a liberty interest entitled to the protections of the due process clause only if they contained "the requisite relevant mandatory language." Id. It held that the visitation regulations involved in Thompson "[stopped] short of requiring that a particular result is to be The trial court in the present case employed an essentially similar analysis, citing the language in 28 V.S.A. § 808(a) that "[t]he commissioner may extend the limits of the place of confinement of an inmate" (emphasis added) and the language in § 808(c) that a grant of furlough status "shall in no way be interpreted as a probation or parole of the inmate, but shall constitute solely a permitted extension of the limits of the place of confinement." The statutes contain no limitations on the discretionary authority granted to the Commissioner. Thus, although there are distinctions between the visitation regulations in Thompson and the Vermont statute before us, those distinctions are insufficient to remove this case from the holding in Thompson. Consequently, the trial court's decision was correct, as weighed against federal law. The United States Constitution not only fails to provide a liberty interest in furlough status directly, but Thompson instructs us that it would not recognize such right under existing Vermont law as a state-created liberty interest.

reached upon a finding that the substantive predicates are met." Id.

II.

Plaintiff next argues that his termination from the furlough release and sex-offender programs was "punishment" for alleged sexual activity with an inmate and that but for charges of such sexual activity no basis would have existed for termination. He contends that his...