Levier v. State
| Decision Date | 06 May 1972 |
| Docket Number | 46391,Nos. 46390,s. 46390 |
| Parties | John L. LEVIER, Appellant, v. STATE of Kansas et al., Appellees. James T. LEVIER, Appellant, v. STATE of Kansas, Sherman H. Crouse, Warden, Kansas State Penitentiary, Lansing, Kansas, et al., Appellees. |
| Court | Kansas Supreme Court |
1. An inmate confined in a penal institution retains all the rights of an ordinary citizen except those expressly, or by necessary implication, taken from him by law.
2. The rights of an inmate include entitlement to adequate food, light, clothing, medical care and treatment, sanitary facilities, reasonable opportunity for physical exercise and protection against physical or psychological abuse or unnecessary indignity.
3. Habeas corpus provides an appropriate remedy for inquiry into mistreatment of a continuing or probably continuing nature alleged by an inmate of a penal institution.
4. Prison officials as executive officers of the state are charged with the control and administration of the penal institutions of the state and as such are vested with wide discretion in the discharge of their duties. That discretion should not be interfered with by the courts in the absence of abuse or unless exercised unlawfully, arbitrarily or capriciously.
5. Disciplinary measures properly administered in accord with reasonable prison regulations are not subject to judicial review.
6. In action in habeas corpus alleging mistreatment of penitentiary inmates the records upon appeal are examined and for reasons stated in the opinion the judgments summarily denying relief are reversed with directions to appoint counsel for petitioners and conduct evidentiary hearings upon issues joined.
Edward J. Chapman, Jr., Leavenworth, argued the cause and was on the briefs for appellants.
Patrick J. Reardon, County Atty., argued the cause, and Vern Miller, Atty. Gen., and John A. Price, Sp. Prosecutor, were with him on the briefs for appellees.
HARMAN, Commissioner:
These appeals are from orders summarily denying inmates of the state penitentiary an evidentiary hearing or any relief on alleged grievances arising out of their imprisonment.
The two actions were dealt with separately in the trial court and on appeal were docketed separately in this court. However, we deem it appropriate to consolidate the two actions for the purpose of this opinion inasmuch as the facts in each case are so similar as to raise the same issues of law, the adverse parties are each represented by the same counsel and the appeals were by agreement consolidated for oral argument before this court.
Each proceeding was initiated by the pro se filing in the trial court of a lengthy hand written instrument denominated case a writ of habeas corpus was promptly issued to the warden of the penitentiary, in response to which James was produced in open court on February 20, 1970, at which time after certain colloquy between the prisoner and the trial court the latter dismissed the action. John's action was dismissed the same day it was filed. In neither instance was counsel appointed.
Neither appellant questions the legality of the sentence under which he is confined but each complains of the manner in which he has been treated while confined under it. From their petitions it appears that each appellant has undergone solitary confinement in what is known as the adjustment and training building (A & T) within the confines of the penitentiary.
James has been continuously confined at the A & T since March 30, 1966. This confinement has been at his own request, under what is known as protective custody status, because he once testified against fellow inmates in a trial arising out of a prison homicide and is in fear of his life if placed at large among the prison population. Highly summarized, James complains of denial of medical treatment and proper diet for stomach ulcers he has developed and lack of exercise or work facilities and rehabilitation programs, for all of which he has repeatedly asked as provided under the prison rules and regulations for inmates. He alleges this constitutes inhumane and cruel treatment and his prayer is for appointment of counsel and an evidentiary hearing and either transfer to another suitable penal institution or release from confinement.
An answer was filed in James' action on behalf of the penal authorities. Briefly it alleges that in 1964 James had been transferred to the reformatory but was uncooperative there and was reincarcerated at the penitentiary. The answer also alleges habeas corpus is an improper remedy and that a proper one would be a civil action for damages or some form of injunctive relief. The answer also pleads the 'hands-off' doctrine.
John's petition alleges he has been incarcerated in the A & T building for periods of time ranging from fourteen to 122 days, once for investigation of robbery, once upon trumped-up charges and once upon investigation of fighting; that when he was suffering from self-inflicted wounds he was denied medical attention for a long period of time and finally received incompetent treatment at the hands of an inexperienced inmate nurse; that while confined in A & T he was sprayed by guards with a high pressure water hose which bruised his body and was compelled for three weeks to sleep without adequate clothing on a flooded concrete floor while the air cooling system was operating. He complains also of the food, light, and exercise and sanitation facilities supplied in the A & T building.
In dismissing James' action the trial court stated the petition did not state a claim upon which relief could be granted.
In John's action the trial court, without appearance by anyone, entered an order of dismissal the same day the petition was filed, stating there was no basis for the issuance of a writ on the facts alleged and further that the petitioner had an appeal to this court in another habeas corpus action, referring to it by number (the trial court appears to have been in error as to this appeal as the numbered action referred to is that of James).
Appellees present several arguments here in support of the trial court's action. They assert a proceeding in habeas corpus attacking the conditions of confinement, where the imprisonment is otherwise legal, should not be entertained because traditionally such a proceeding is only to inquire into the propriety of the sentence and to order complete release when the sentence is found to be illegal. Appellees suggest actions for damages or for injunctive relief, mandamus or prohibition may be appropriate to insure adherence to legislative requirements respecting penal conditions. They also in effect assert courts are not equipped to exercise supervision over the manner of treatment of those in confinement and to attempt to do so would frustrate the existing administrative function of the penal authorities to investigate alleged acts of mistreatment. Appellees further urge that the petitions relate to past occurrences which should not now be considered in the abstract because they have been rendered moot by the passage of time.
Appellants point to decisions in other jurisdictions wherein relief has been granted by both state and federal courts to inmates establishing violation of their right to humane treatment while confined even though such relief has not extended to total release from confinement.
Let us look first at norms which have been established as to the rights of persons confined under conviction of crime.
The infliction of cruel and/or unusual punishment is constitutionally prohibited (U.S.Const. amend, VIII; Kan.Const., B. of R., § 9).
K.S.A. 21-119, enacted in 1868 and in effect until repealed and superseded July 1, 1970, provided:
'The person of a convict sentenced to confinement and hard labor is under the protection of the law, and any injury to his person not authorized by law shall be punishable in the same manner as if he was not sentenced or convicted.'
In City of Topeka v. Boutwell, 53 Kan. 20, 35 P. 819, an action in part for damages for harsh and cruel treatment allegedly suffered by a prisoner while confined under sentence in a city jail, this court declared:
'It is the duty of all keepers of jails and prisons to treat their prisoners humanely.' (p. 32, 35 P. p. 822.)
K.S.A. 21-119 was superseded by the enactment of that which is now K.S.A.1971 Supp. 21-4615, which provides:
'(1) A person who has been convicted in any state or federal court of a crime punishable by death or by imprisonment for a term of one (1) year or longer and is imprisoned pursuant to such conviction shall, by reason of such conviction and imprisonment, be ineligible to hold any public office under the laws of the state of Kansas, or to register as a voter or to vote in any election held under the laws of the state of Kansas or to serve as a juror in any civil or criminal case.
'(2) The disabilities imposed by this section shall attach when the convicted person is delivered to the custody of the state director of penal institutions for imprisonment and shall continue until such person is finally discharged from parole or conditional release or is discharged from custody by reason of the expiration of the term of imprisonment to which he was sentenced, except that when a sentence of imprisonment is modified by the court within one hundred twenty (120) days from the date thereof and the convicted person is admitted to probation, such person shall not thereafter be subject to the disabilities imposed by this section.
'(3) The disabilities imposed upon a convicted person by this section shall be in addition to such other penalties as may be provided by law.'
The Judicial Council which drafted the foregoing provision as a part of our present criminal code had...
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