Gardiner v. Commissioner of Correction

• Decision Date: 21 June 1977
• Citation: 5 Mass.App.Ct. 425,363 N.E.2d 1323
• Parties: John C. GARDINER v. COMMISSIONER OF CORRECTION et al. 1
• Court: Appeals Court of Massachusetts

Page 1323

363 N.E.2d 1323

5 Mass.App.Ct. 425

John C. GARDINER v. COMMISSIONER OF CORRECTION et al. ¹

Appeals Court of Massachusetts, Suffolk.

Argued May 14, 1976.

Decided June 21, 1977.

Joseph F. Flynn, Boston, for plaintiff.

Francis X. Bellotti, Atty. Gen., John J. Irwin, Jr., and Robert V. Greco, Asst. Attys. Gen., for defendants.

Before HALE, C.J., and KEVILLE, GOODMAN, GRANT, ARMSTRONG and BROWN, JJ.

ARMSTRONG, Justice.

On July 9, 1965, while serving a sentence for armed robbery, the plaintiff escaped from the State prison camp at Warwick. On May 8, 1973, he was apprehended and was subsequently tried and convicted for the crime of escape from a prison camp. G.L. c. 127, § 83C. Pursuant to § 83B ² of that chapter, the plaintiff forfeited 213 days of good conduct deductions which he had accumulated prior to the escape. On September 18, 1974, the plaintiff requested that the defendant Commissioner restore those good conduct deductions. The Commissioner denied the request on the ground that under § 83B he had no power 'to consider restoration of the 213 days good conduct deductions that you forfeited by escaping . . ..'

The plaintiff then commenced this action for a judicial determination that the Commissioner was authorized to restore the good conduct deductions. The judge who heard the action in the Superior Court on an agreed statement of facts ruled that the Commissioner lacked that authority, and the plaintiff appealed.

Section 83B explicitly required the forfeiture of the plaintiff's accumulated good time deductions. It makes no provision for restoration thereof. But the plaintiff argues that such a provision is seen to be implicit in § 83B when it is compared with § 129 of the same chapter.

Unlike § 83B which applies only to prison camps, § 129 deals with correctional institutions generally, including prison camps. Section 129 ³ authorizes good conduct deductions from sentences, but contains two provisions by which such deductions may be lost. The first relates to infractions of prison rules: 'If a prisoner violates any rule of his place of confinement, the commissioner . . ., upon the recommendation and evidence submitted (by the officer in charge of the institution where the prisoner is confined) . . . shall decide what part, if any, of such good conduct deduction . . . shall be forfeited by such violation, and may likewise determine, in the event of the prisoner's subsequent good conduct, whether any or all of such deduction shall be restored.' The second relates to convictions for criminal offenses: 'If, during the term of imprisonment of a prisoner confined in a correctional institutional of the commonwealth, such prisoner shall commit any offense of which he shall be convicted and sentenced, he shall not be entitled to any deductions hereunder from the new sentence or sentences of imprisonment.' ⁴

The plaintiff first argues that the word 'forfeit', used both in § 83B and in the rules infractions portion of § 129, is capable of being understood either in the sense of a permanent loss or in the sense of loss with a possibility of restoration; and that, since it has been held that the two sections are to be treated as using identical language in a uniform sense (Wood v. Commissioner of Correction, 363 Mass. 79, 82 fn. 5, 292 N.E.2d 712 (1973)), and since § 129 uses the word 'forfeit' in the sense of loss with a possibility of restoration, the same meaning must be given to the word 'forfeit' in § 83G. The argument is patently unsound, because the possibility of restoration is not derived from the word 'forfeit,' but from § 129's explicit provision to that effect; and the absence of similar language in § 83B makes it clear that the Legislature's intention was precisely contrary to the plaintiff's first argument.

The plaintiff next argues that, although his escape was a crime, it was also a breach of prison rules, ⁵ thus bringing the offense within the rules infraction portion of § 129, which permits restoration of forfeited good conduct deductions. This reasoning would effect the anomaly that one whose conduct violates both statute and rule would be accorded greater leniency then one who violates only a statute. It would also attribute to the Commissioner of Correction a power to modify statutes by administrative regulation. The argument is without merit.

The plaintiff's final argument is that the description in § 83B of the offense of escape differs from the description in § 83C ⁶ of the crime of escape, and from this he concludes that § 83B must be referring to the 'institutional infraction of escape' rather than the crime of escape. But we think that the correct interpretation of the pertinent words in § 83B ('a prisoner (who) escapes or attempts to escape from a prison camp') is that they refer to one who commits either of the two crimes (escape and attempt to escape) which are described in § 83C. ⁷ The operation of § 83B does not depend on the existence of an administrative regulation prohibiting escape. None has been mentioned in the cases which have arisen under § 83B. ⁸ Moreover, a contrary conclusion would avail the plaintiff naught, because the more particular provision made for an institutional infraction of escape from a prison camp in § 83B would clearly prevail over the general provisions of § 129 relative to rules infractions of any type in any prison. There is nothing inconsistent or unharmonious about a statute which provides a severe penalty for particular conduct which would warrant only a lesser penalty under a general statute in its absence. Nor do we perceive any ambiguity in § 83B which would justify invoking the principle that penal statutes are to be strictly construed.

Judgment affirmed.

This case was argued before a panel comprised of KEVILLE, GOODMAN and ARMSTRONG, JJ. The other justices were called in to take part in the decision pursuant to Mass.R.A.P. 24(a), 365 Mass. 872 (1974).

GOODMAN, Justice (dissenting, with whom BROWN, J., joins).

The substance of the plaintiff's contention is that G.L. c. 127, § 83B, ¹ must be read together with the fourth sentence of the first paragraph of G.L. c. 127, § 129, which authorizes the Commissioner to restore forfeited good conduct deductions 'in the event of the prisoner's subsequent good conduct.' ² From our examination of these provisions, and the legislative course of each of the statutes in which they are respectively contained, we conclude that the plaintiff is correct and that the judgment should be reversed. ³

The prison camp escape provision, as it now reads (note 1, supra), was enacted in 1951 as part of a comprehensive program for the establishment of prison camps in State forests. St. 1951, c. 755, inserting §§ 83A--83D, inclusive, in chapter 127 of the General Laws. ⁴ At that time § 129 (as rewritten by St. 1948, c. 450--'An Act relative to deductions from maximum sentences of prisoners') contained substantially the same provision for the administrative forfeiture of good conduct allowances as is presently in effect in that section, except that it made no provision for their restoration for subsequent good conduct (see note 2, supra). Section 129 also then provided that: 'If, during the term of imprisonment . . . such prisoner shall commit any offense of which he shall be convicted and sentenced, all deductions hereunder from the former sentence of imprisonment . . . shall be thereby forfeited' (herein referred to as the 1948 conviction forfeiture provision).

In 1955 the Legislature enacted a thoroughgoing reorganization of the penal system by St. 1955, c. 770, entitled 'An Act relative to the penal and reformatory institutions of the commonwealth.' See 1955 Ann.Surv. of Mass. Law, §§ 12.1--12.13. It was based on a study of the entire correction system by a commission of penologists, headed by President Wessel of Tufts College. 1955 Sen. Doc. No. 750, 'Report and Recommendations of the Governor's Committee to study the Massachusetts Correctional System.' The Wessel committee had been appointed soon after a four day rebellion in Charlestown prison and was concerned with the problems of prison discipline. The study points out that good conduct allowances 'are useful for institutional discipline, using the term discipline in the proper sense, that is, as an incentive to good morale, rather than in a negative sense, discipline maintained by punishment' (p. 71), and further that '(t)he granting or denial of good-time allowances is a matter of institutional management and discipline. It should be controlled within the Department of Correction . . .' (p. 73). In accordance with this principle the Wessel committee recommended that the provision for automatic loss of good time upon conviction for an offense while in prison (the 1948 conviction forfeiture provision) be eliminated entirely; and this recommendation was embodied in the revised draft of § 129 of chapter 127 submitted by the Wessel committee (see 1955 Sen. Doc. No. 750, at 142--143), in the draft of the Special Committee on the Reorganization of the Correctional System of the House of Representatives to which the Wessel report was referred (see 1955 House Doc. No. 3098, at 40--41), and in the ultimate legislation (St. 1955, c. 770, § 66), which rewrote § 129. The draft of the House committee bill and the ultimate legislation (though not the original draft of the Wessel committee bill) also added, to the provision in § 129 for the administrative forfeiture of good conduct deductions, a further provision for their restoration for 'subsequent good conduct' (see note 2, supra). 1955 House Doc. No. 3098 at 41.

However, in spite of the elimination of the 1948 conviction forfeiture provision, both drafts and the ultimate legislation let stand the prison camp escape provision in § 83B (see note 1, supra). We do not view this as an inadvertence, ⁵ and it need not be regarded as an inconsistency. The prison camp escape provision---unlike the 1948...