Lyman v. Commissioner of Correction

• Decision Date: 21 January 1999
• Docket Number: No. 97-P-151,97-P-151
• Citation: 704 N.E.2d 1195,46 Mass.App.Ct. 202
• Parties: James E. LYMAN, Jr. v. COMMISSIONER OF CORRECTION & others. 1
• Court: Appeals Court of Massachusetts

Page 1195

704 N.E.2d 1195

46 Mass.App.Ct. 202

James E. LYMAN, Jr. v. COMMISSIONER OF CORRECTION & others. ¹

No. 97-P-151.

Appeals Court of Massachusetts Middlesex.

Argued Oct. 13, 1998.

Decided Jan. 21, 1999.

James E. Lyman, Jr., pro se.

Mary E. Murphy-Hensley, Assistant Attorney General, for the defendants.

Present: WARNER, C.J., GREENBERG and GILLERMAN, JJ.

GREENBERG, J.

James E. Lyman, Jr., the plaintiff, is a prisoner at the Bay State Correctional Center at Norfolk. He is serving a from twelve to fifteen year sentence (with an identical term of years to be served "from and after" that sentence). He brought this action for declaratory and injunctive relief to challenge as unconstitutional the policy of the Department of Correction of requiring an admission of guilt to the crimes for which he was sentenced as a condition to attaining a lower security classification. For the same alleged unconstitutional conduct, he seeks damages for violation of his civil rights. A Superior Court judge granted summary judgment to the defendants in a lengthy and thorough decision. The plaintiff appeals. We affirm.

We begin with an explanation of how the challenged policy came into play. On October 29, 1987, the plaintiff was convicted and sentenced on two indictments for rape of a child by force. In 1988, pursuant to G.L. c. 127, § 20, an initial classification hearing took place. The plaintiff was told that he would be eligible for parole in sixteen years and that after he had served eight years of his sentence, as long as he had maintained a good institutional record, he would be placed in a minimum security facility.

In 1990, more than two years after the plaintiff's classification hearing, St.1990, c. 150, § 104 (act), was enacted, mandating that the commissioner of correction "develop a plan for a program of voluntary treatment services for sex offenders to be offered in facilities operated by the department of correction." ²

On October 19, 1994, nearly seven years from the date the plaintiff began serving his sentence, the commissioner approved a policy for the treatment and movement of sex offenders from commitment to release. See 103 Code Mass. Regs. §§ 446.01 et seq. This policy was promulgated by the commissioner to ensure a continuation of treatment services for sex offenders from the time of commitment to eventual release upon parole or upon discharge from their sentences. Participation in the program was deemed "voluntary for all identified inmates, [but] no inmate identified as a sex offender [could] ... move beyond medium security without successfully completing all programs" as set forth in the policy. See 103 Code Mass. Regs. § 446.07. ³

The portion of the policy that the plaintiff especially finds objectionable is § 446.13.1, which denies transfer to a lower security facility to any inmate who remains "in denial of the offense(s)." In addition, he objects to a requirement that a participant sign a sex offender's treatment waiver agreement that contains an admission that he is a sex offender.

In his complaint, the plaintiff maintains that he did not commit the crimes for which he was convicted and he "is still working [in the Appeals Court and the Supreme Judicial Court] to overturn his convictions." ⁴ After a classification hearing on October 19, 1995, defendants Joan Milch (director of classification), Bonney McWilliam (correctional program officer) and Michael Vermette (correction officer) recommended denial of the plaintiff's request for transfer from medium to minimum security. On October 21, 1995, defendant, Peter St. Amand, the deputy superintendent, acting for the Bay State Correctional Center's superintendent, James Matesanz, afforded the plaintiff no relief. Finally, upon review, the commissioner denied the plaintiff's request on the basis of his failure to participate in mandatory counseling.

With that background, we return to the sole question which this case presents: does the policy violate any of the plaintiff's constitutional rights? The language of § 446.13 of the policy, ⁵ the defendant argues, runs afoul of the Fifth Amendment's prohibition against coerced self-incriminating testimony and of art. 12 of the Massachusetts Declaration of Rights' prohibition against the compelled furnishing of evidence against oneself. He claims that participation in the program cannot be conditioned upon an admission of guilt from any inmate who might otherwise be eligible for transfer to a lower security facility.

In the present situation, we do not view the requirement that the defendant admit that he is a sex offender as a penalty which implicates either the Federal or State privilege against self-incrimination. This conclusion is based on Quegan v. Massachusetts Parole Board, 423 Mass. 834, 837-838, 673 N.E.2d 42 (1996), decided by the Supreme Judicial Court while the instant case was on appeal. There, a prisoner claimed that the parole board penalized him for exercising his constitutional right of freedom from compelled self-incrimination under both the Fifth Amendment to the Constitution of the United States and art. 12 of the Massachusetts Declaration of Rights. Like the plaintiff, Quegan argued that if he were to admit his guilt, "he would be prejudicing his position if a judge were to grant him a new trial." 423 Mass. at 837, 673 N.E.2d 42. The court rejected this argument and concluded that denial of parole is not a penalty for Fifth Amendment purposes, and therefore when a prisoner "is denied parole [he] is not punished for his unwillingness to admit his guilt." 423 Mass. at 837, 673 N.E.2d 42. Further, under art. 12 "[t]he pressure on a prisoner seeking parole to admit responsibility for his crime does not compel the prisoner to admit his guilt. He may elect either not to seek parole or to seek parole and not admit his guilt." 423 Mass. at 838, 673 N.E.2d 42. "In neither case" could it be said that "he is compelled to furnish evidence against himself." Ibid.

In these circumstances, not only does the plaintiff fall short of establishing a self-incrimination claim, but as a threshold matter, he enjoys no constitutionally protected interest in his expectation of a lower security status. Meachum v. Fano, 427 U.S. 215, 227, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). The Supreme Court in Meachum held that a prisoner's expectation of residency in a particular prison "is too ephemeral and insubstantial to trigger due process protections." Id. at 228, 96 S.Ct. 2532. Similarly, the plaintiff here has no protected liberty interest in minimum security conditions which, unlike the prisoners in Meachum, he has not yet enjoyed. See Dominique v. Weld, 73 F.3d 1156, 1160-1161 (1st Cir.1996) (inmate has no protected liberty interest in remaining in work release program and may be moved to medium security facility). See also McMorrow v. Little, 109 F.3d 432, 436 (8th Cir.1997) ("prison officials may constitutionally deny benefits to a prisoner who, by invoking his privilege against self incrimination, refuses to make statements necessary for his rehabilitation, as long as the [prison officials'] denial is based on the prisoner's refusal to participate in his rehabilitation and not his invocation of his privilege").

We may conclude from the mandate of St.1990, c. 150, § 104, and the legitimate treatment goals expressed in 103 Code Mass. Regs. § 446.07 (1994), a policy assumption by the correction officials that an offender's acknowledgment of having committed a sexual offense is essential for rehabilitation and transfer to a nonsecure setting. Even if the precise reasons for this policy decision remain debatable, the plaintiff has failed to establish a deprivation either under the State or Federal Constitutions. "There is a crucial distinction between being deprived of a liberty one has ... and being denied a conditional liberty that one [merely] desires." Greenholtz v. Inmates of the Neb. Penal and Correctional Complex, 442 U.S. 1, 9, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1978).

We are handicapped--and so far as appears from the record, so was the motion judge--by not having been furnished with citations in support of the plaintiff's other constitutional claims. So far as he argues that the policy violates State and Federal guarantees against ex post facto laws, the claim is without merit. Ex post facto laws encompass laws that inflict a greater punishment than the law imposed for the same crime when it was committed. See Dominique v. Weld, 73 F.3d at 1162. However, the ex post facto clause pertains only to "punishments inflicted," Martel v. Fridovich, 14 F.3d 1, 3 (1st Cir.1993), in other words, to statutes that are penal in nature. Opinion of the Justices, 423 Mass. 1201, 1225, 668 N.E.2d 738 (1996); Commonwealth v. Fourteen Thousand Two Hundred Dollars, 421 Mass. 1, 6, 653 N.E.2d 153 (1995). The sex offender treatment policy at issue in this case has been determined by the United States Court of Appeals for the First Circuit, with which we agree, to be essentially remedial and not punitive in nature. "[U]nless and until [a sex offender] successfully completes the prescribed treatment program and admits to a crime he has continually denied, he must remain confined at no less than a medium security facility and remain ineligible for privileges associated with lower security imprisonment." Dominique v. Weld, 73 F.3d at 1163. The changes in conditions occasioned by the policy are a permissible alteration...