DuPont v. Commissioner of Correction

Citation861 N.E.2d 744,448 Mass. 389
PartiesMichael Kevin DuPONT v. COMMISSIONER OF CORRECTION & others.<SMALL><SUP>1</SUP></SMALL>
Decision Date23 February 2007
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.

CORDY, J.

In 1993, while serving a twenty-year State prison sentence for armed robbery and assault at the maximum security prison, the Massachusetts Correctional Institution at Cedar Junction (MCI-Cedar Junction), Michael Kevin DuPont was found guilty by a special hearing officer2 of a "major" violation of prison rules.3 He was sentenced to serve eighteen months in the Department of Correction (department) departmental disciplinary unit (DDU), which is located in the same prison.4 DuPont filed a complaint in the Superior Court raising procedural challenges to the hearing process and alleging that sentencing him to the DDU denied him equal protection of the law under, inter alia, various provisions of the Massachusetts Constitution and the Fourteenth Amendment to the United States Constitution, because there was no DDU in use for female prisoners incarcerated at what was then the only State prison for women, the Massachusetts Correctional Institution at Framingham (MCI-Framingham). In 1997, a Superior Court judge granted summary judgment for the defendants on all claims.

With respect to DuPont's equal protection claim, the judge concluded that he had "failed to make the threshold showing that he is similarly situated to female inmates in [MCI-]Framingham." DuPont appealed. In a memorandum and order pursuant to its rule 1:28, the Appeals Court affirmed summary judgment on all counts except the equal protection claim. DuPont v. Commissioner of Correction, 54 Mass.App.Ct. 1107, 765 N.E.2d 286 (2002). On that claim, the Appeals Court set aside summary judgment "[f]or all the reasons set forth in" Todd v. Commissioner of Correction, 54 Mass.App.Ct. 31, 763 N.E.2d 1112 (2002), and remanded the case to the Superior Court. In the Todd case, the inmate raised a similar equal protection challenge to the use of the DDU for male but not female prisoners incarcerated in State prisons. Summary judgment for the State defendants was vacated by the Appeals Court because, while "defer[ring] to the department as to its purposes in promulgating and applying the regulations governing confinement to the DDU," the department had failed to furnish materials "indicating why the regulations here, which are facially neutral, do not apply to female prisoners." Id. at 38, 763 N.E.2d 1112.

On remand in the present case, a different Superior Court judge denied the defendants' renewed motion for summary judgment. That motion was based principally on an affidavit of the Commissioner of Correction (commissioner) that attempted to address the record deficiencies noted by the Todd court. In denying the defendants' motion, the judge "accept[ed] that the Appeals Court implicitly found valid DuPont's argument that male and female prisoners are similarly situated." She then applied a strict scrutiny analysis in evaluating DuPont's equal protection claim, and concluded that questions of fact "remain[ed] as to whether [male inmates] are, in fact, more violent than [female] and thus require more stringent punishment so as to promote safety in the correctional system."

After denying the defendants' motion, the Superior Court judge, pursuant to Mass. R. Civ. P. 64(a), as amended, 423 Mass. 1403 (1996), reported the correctness of her ruling and the following question: "Should prison regulations, contested on an `as applied' basis by individual inmates as violating equal protection rights based on a suspect classification such as gender, be considered through the lens of rational basis scrutiny or by the more rigorous strict scrutiny analysis?" We transferred the case from the Appeals Court on our own motion. Based on the expanded record before us, we conclude that while strict scrutiny would likely be the proper standard to apply to gender-based classifications in the prison context, DuPont has not established that he is similarly situated to female inmates at MCI-Framingham for purposes of punishment, and enter summary judgment for the defendants.5

1. Background. The following description of the State prison system and the operation of the DDU are drawn from the undisputed facts in the record, including the statutory and regulatory framework by which they are governed.

a. The department disciplinary unit. The DDU is a restricted area to which an inmate may be sentenced by a special hearing officer. 103 Code Mass. Regs. § 430.06 (1995). There is only one DDU in the correctional system. It is located at MCI-Cedar Junction, one of two maximum security prisons run by the department. The purpose and use of the DDU is to house inmates "engaging in the most violent, predatory and repetitive kind of disciplinary conduct" in the correctional institutions in Massachusetts.6 A sentence to the DDU serves as punishment for disciplinary or criminal behavior engaged in by such inmates during their incarceration and, importantly, removes them from the general population, providing a safer environment for other inmates, correctional staff, and the public.7

Inmates can be sentenced to the DDU only after a disciplinary officer finds that such a sentence may be warranted and forwards a copy of the disciplinary report to a special hearing officer, the prisoner is notified of the possibility of a DDU sentence, and a hearing is held. 103 Code Mass. Regs. §§ 430.08, 430.09, 430.11 (1995).8 Typically, offenses "involving little or no threat to the well being of others, to property, or to the security of the institution" are not eligible for a DDU sentence. 103 Code Mass. Regs. § 430.09. When determining whether a particular offense warrants a DDU sentence, the disciplinary officer is to consider whether it constitutes a "[t]hreat to institutional security," "[r]epetitiveness," the "[e]xtent of harm done," and any "[m]itigating circumstances."9 Id.

Inmates housed in any correctional institution under the control of the department may be sentenced and transferred to the DDU at MCI-Cedar Junction, although approximately seventy-five per cent of those sentenced were incarcerated at MCI-Cedar Junction at the time they committed their offenses.10 The DDU's regulations governing its use are gender neutral on their face, and could be applied to both male and female prisoners.

b. Prison demographics. In Massachusetts, by statute, male and female prisoners are housed separately. G.L. c. 127, § 22 ("Male and female prisoners shall not be put or kept in the same room in a jail or house of correction . . .").11 Notwithstanding their gender, persons convicted of crimes and sentenced to imprisonment receive a sentence either to a county house of correction (run by the county sheriffs) or to State prison (run by the department). Sentences to a house of correction are almost always of shorter duration than sentences to State prison, see G.L. c. 279, § 23 ("No sentence of . . . imprisonment or confinement for more than two and one half years shall be executed in any jail or house of correction"); see also G.L. c. 279, § 19, and are imposed only for misdemeanors or for less serious felonies.12 State prison sentences, on the other hand, are meted out only in cases of felony convictions and often involve serious crimes of violence that do not permit the imposition of a lesser sentence to a house of correction.13 Not surprisingly, the challenges of safely managing an inmate population serving shorter sentences for less serious crimes in the county houses of correction differ from those faced by the department in managing the population of prisoners incarcerated in State prisons. Not all county houses of correction, however, have facilities for women prisoners. Consequently, women imprisoned for crimes, that might ordinarily be punished by incarceration in a county house of correction are often committed to the custody of the department and imprisoned at MCI-Framingham. G.L. c. 279, § 16 ("A female, convicted of a crime punishable by imprisonment in a jail or house of correction, may be sentenced to the Massachusetts Correctional Institution, Framingham"). Until recently, MCI-Framingham was the only State prison for women.14 Thus, females convicted and sentenced for crimes ranging from life felonies to misdemeanors may serve their sentences at MCI-Framingham, a medium security prison.

Between 1994 and 2002, the number of males serving State prison sentences in the department's facilities averaged approximately 9,500.15 Two of those facilities are maximum security prisons. During this same period, the number of females incarcerated at MCI-Framingham averaged approximately 590. Only about one-half of these female inmates, however, were serving State prison sentences. The remaining one-half were awaiting trial or were serving house of correction sentences. Consequently, a larger percentage of the State's male prisoners were serving sentences for violent offenses than the women prisoners incarcerated at MCI-Framingham. For example, in 2001, sixty-seven per cent of the male prisoners and thirty-seven per cent of the female prisoners were serving sentences for such crimes. Similarly, the percentage of males sentenced to State prison each year for violent offenses far exceeds the percentage of females sentenced to MCI-Framingham for similar crimes. For example, in 2000, fifty per cent of the males, and only nineteen per cent of female prisoners, were sentenced for such offenses.

c. Safety and security of the...

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