Downes v. Norton

• Decision Date: 29 June 1973
• Docket Number: B-773.,Civ. No. B-772
• Court: U.S. District Court — District of Connecticut
• Parties: Terrence DOWNES v. John J. NORTON, Warden, Federal Correctional Institution, Danbury. John JACKSON v. John J. NORTON, Warden, Federal Correctional Institution, Danbury, Mr. Keyes, Case Worker Manager.

360 F. Supp. 1151

Terrence DOWNES v. John J. NORTON, Warden, Federal Correctional Institution, Danbury.

John JACKSON v. John J. NORTON, Warden, Federal Correctional Institution, Danbury, Mr. Keyes, Case Worker Manager.

Civ. Nos. B-772, B-773.

United States District Court, D. Connecticut.

June 29, 1973.

John M. Creane, Bridgeport, Conn., for petitioners.

Barry J. Cutler, Asst. U. S. Atty., New Haven, Conn., for respondents.

MEMORANDUM OF DECISION ON PETITIONS FOR WRITS OF HABEAS CORPUS

NEWMAN, District Judge.

Petitioners, in these two unrelated cases, challenge the constitutionality of procedures of the Bureau of Prisons providing for forfeiture of good time at hearings held in petitioners' absence. The procedures are set forth in Bureau of Prisons Policy Statement 7400.6A (August 13, 1971) (hereafter "Policy Statement"). Petitioners, currently incarcerated at the Federal Correctional Institution at Danbury, are properly before this Court pursuant either to 28 U. S.C. § 2241 or 28 U.S.C. § 1361, see, e. g., United States ex rel. Colen v. Norton, 335 F.Supp. 1316 (D.Conn.1972).¹

Both petitioners were serving sentences at the Danbury Federal Correctional Institution prior to their transfer to the Community Treatment Center (C.T.C.) in New York City. Downes had earned good time credits pursuant to 18 U.S.C. § 4161 entitling him to release on May 10, 1973. On February 26, 1973, he failed to return to the C.T.C. while on a pass and was placed in escape status two days later. On March 2, 1973, a hearing was held at the C.T.C., in petitioner's absence, at which all his ninety days of good time were forfeited. He was returned to custody on April 11, 1973.

Jackson had earned credits entitling him to release on April 10, 1973. On December 14, 1972, he too failed to return to the C.T.C. while on a pass and was placed in escape status four days later. His in absentia hearing was held December 26, 1972, at which all his 211 days of good time were forfeited. He was returned to custody on February 23, 1973.

The Bureau of Prisons has specified detailed procedures for good time forfeiture. Policy Statement, § 4 "Forfeiture of Good Time." The specified hearing includes a summary transcript, presence of the inmate and a staff member he chooses as his representative, notice of the misconduct report, the opportunity to call witnesses if the misconduct is denied, and a chance to make a statement in mitigation or to have the representative speak. After hearing the evidence, a three-member Adjustment Committee submits a written report containing findings of fact and its recommendation to the Chief Executive Officer (hereafter "warden") who acts upon it. Thereafter the inmate is advised of the warden's decision, provided a copy of the Committee's report, and advised of his right to appeal.

A second § 4 of the Policy Statement, captioned "Exceptional Circumstances," exempts forfeiture procedures for escaped inmates from these requirements. This section provides:

a. When an inmate escapes from custody, good time forfeiture action may be taken in the absence of the inmate by the Adjustment Committee at the institution from which the escape occurred. Such action should be taken, if forfeiture is deemed appropriate, when the inmate is close to his mandatory release date or when it is likely that he will be taken, upon apprehension, to another institution. When the inmate whose good time is forfeited is returned to custody, he should be advised of the forfeiture and given the opportunity to submit a statement in mitigation to the Chief Executive Officer, who may consider it in making a decision as to restoration of good time. If an inmate refuses to appear at such a hearing without the use of force, the hearing, upon full documentation of this, may proceed in his absence. Only in such situations may good time be taken in the absence of the inmate.

Petitioners contend that the holding of a forfeiture hearing in their absence denies them procedural due process and that the differences between the procedures used for escaped inmates and for all others are irrational and therefore deny them equal protection of the laws. Both contentions are based on similar considerations.

The requirements of due process depend on the nature of the right that is at stake and the context in which the right is impaired. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L. Ed.2d 1230 (1961). Loss of a prisoner's earned good time involves a right entitled at least to "basic safeguards." Sostre v. McGinnis, 442 F.2d 178, 203 (2d Cir. 1971), cert. denied sub nom. Oswald v. Sostre, 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972); Rodriguez v. McGinnis, 456 F.2d 79 (2d Cir. 1971), rev'd on other grounds sub nom. Rodriguez v. Preiser, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (May 7, 1973); Banks v. Norton, 346 F.Supp. 917 (D. Conn.1972); Cloud v. Manson, Civ. No. 14,063 (D.Conn. May 3, 1972); Bach v. Mitchell, Civ. No. B-376 (D.Conn. Dec. 28, 1971).

The government attempts to analogize good time forfeiture to recission of a favorable parole decision not yet put into effect, which has been held not to require notice or hearing. Koptik v. Chappell, 116 U.S.App.D.C. 122, 321 F. 2d 388 (1963). While that decision has been followed in this District, Bach v. Mitchell, supra; United States ex rel. Felder v. United States Board of Parole, 307 F.Supp. 159 (D.Conn.1969), those decisions preceded Morrissey v. Brewer, supra, and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (May 14, 1973). While not directly on point, Morrissey and Gagnon raise serious questions concerning at what point a prisoner's reliance on an "implicit promise" of "conditional liberty," Morrissey v. Brewer, supra, 408 U.S. at 481-482, 92 S.Ct. 2593, demands procedural protection.

While it is difficult and not necessary to forecast where courts, after Morrissey, will place parole recission cases on the continuum from parole granting, see Elting v. Norton, Civ. No. B-685 (D. Conn. June 4, 1973), to parole revocation, it should be noted that the reasoning in the parole recission decisions themselves indicates the critical difference between a non-vested grant of parole and earned good time. Koptik emphasized the discretion inherent in parole, which is specified in 18 U.S.C. § 4203(a), and the continuing discretion until release provided in 28 C.F.R. § 2.20. In sharp contrast, 18 U.S.C. § 4161, governing good time, provides that inmates "shall be entitled" to deductions from sentences when their conduct has been in keeping with the rules of the institution. Unlike parole, which an inmate may be unable to earn no matter how good his conduct, see Elting v. Norton, supra, earned good time is much closer to the "conditional liberty" that Morrissey held was entitled to procedural protection.

If good time forfeiture requires procedural due process protection, there can be no doubt that, at least in the circumstances of these cases, the in absentia hearing is unconstitutional. Presence at a hearing is a basic ingredient of due process. Goldberg v. Kelly, 397 U.S. 254, 267-269, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 58 L.Ed. 1363 (1914); Simon v. Craft, 182 U.S. 427, 436, 21 S.Ct. 836, 45 L.Ed. 1165 (1901). While some proceedings, even trials, can continue if a defendant absents himself after the proceeding starts, Diaz v. United States, 223 U.S. 442, 445, 32 S.Ct. 250, 56 L.Ed. 500 (1912), or even after he has notice of the trial date, United States v. Tortora, 464 F.2d 1202, 1208-1210 (2d Cir. 1972), the government cites no instance where escape justified the commencement of an in absentia hearing concerning charges not previously made. Certainly defendants cannot be charged and tried in absentia for violation of the escape statute, 18 U.S.C. § 751.

The government contends that the procedure provided by the Policy Statement comports with due process. The claim is that the fact of escape establishes the violation of prison regulations without the need for an adversary hearing (at least when the escape has lasted longer than the few hours that might be explainable by delayed or missed transportation). Thus, the argument continues, the returned prisoner is only entitled to be heard on the issue of punishment, and he receives this opportunity by...