Ray v. McCoy

• Decision Date: 12 July 1984
• Docket Number: No. 16286,16286
• Citation: 174 W.Va. 1,321 S.E.2d 90
• Court: West Virginia Supreme Court
• Parties: Connie RAY and Kathy Schofield v. W. Joseph McCOY, et al.

Page 90

321 S.E.2d 90

174 W.Va. 1

Connie RAY and Kathy Schofield v. W. Joseph McCOY, et al.

No. 16286.

Supreme Court of Appeals of

West Virginia.

July 12, 1984.

Concurring Opinion July 19, 1984.

Dissenting Opinion Sept. 27, 1984.

Syllabus by the Court

1. The clause "[n]o person shall be transported out of, or forced to leave the State for any offense committed within the same," of W.Va. Const. art. III, § 5, prevents a prisoner convicted under West Virginia law from involuntarily serving any portion of a state sentence beyond the West Virginia borders.

2. W.Va.Code, 25-1-16 [1972] which authorizes "the state commissioner of public institutions ... to cause the transfer of any patient or inmate from any state institution or facility to any other state or federal institution or facility which is better fitted for the care or treatment of such patient or inmate, or for other good cause or reason," can be constitutionally applied only to inmate transfers within the State of West Virginia.

Ernest V. Morton, Jr., Webster Springs, for petitioners.

Silas B. Taylor, Asst. Atty. Gen., Charleston, for respondents.

NEELY, Justice:

Two West Virginians, sentenced under the law of the State of West Virginia but currently incarcerated across the continent in the State of California, petitioned this Court for a writ of habeas corpus to compel the Commissioner of the West Virginia Department of Corrections to return them to custody in West Virginia. As imprisonment of state convicts beyond the borders of West Virginia is in controvention of W.Va. Const. art. III, § 5, (the "transportation clause") we, accordingly, grant the writ.

I

This case is an outgrowth of the closure of the women's prison at Pence Springs, W.Va.Code, 28-5C-1 [1983] and the subsequent contract, under W.Va.Code, 28-5C-2 [1983], between the West Virginia Department of Corrections and the Federal Bureau of Prisons. The agreement permitted the West Virginia Department of Corrections to transfer its female prisoners to the Federal Correctional Institution at Alderson, West Virginia, in July of 1983. By the arrangement, a West Virginia Department of Corrections Warden is employed at the Alderson facility to supervise our female prisoners.

The petitioners Schofield and Ray were sentenced under state law and confined under contract in the federal facility at Alderson. Both women were obstreperous and difficult inmates. Miss Schofield, who is serving a life sentence without mercy, was fractious and violent on numerous occasions during the summer and fall of 1983. She was disciplined frequently for her conduct but apparently to no avail. The authorities decided to transfer her under W.Va.Code, 25-1-16 [1972] to the Federal Correctional Institution at Pleasanton, California on 30 September 1983. While confined at Pleasanton, a coeducational facility, she continued to commit infractions, and became pregnant. She was removed to the Metropolitan Correctional Center in San Diego, California.

Miss Ray was sentenced from one to ten years. She was sent to Pleasanton on 27 September 1983 after two escape attempts from Alderson that resulted in federal indictments. She and Miss Schofield were informed by the federal authorities that they would be returned to Alderson, West Virginia only if they maintained "clear conduct."

The respondent Commissioner admits that recalcitrant female state prisoners at Alderson need not necessarily be transferred beyond the borders of West Virginia, but could be confined at the Huttonsville Correctional Center. The Commissioner stated, however, that the Department of Corrections attempted to follow the rehabilitative directives of this Court articulated in Cooper v. Gwinn, W.Va., 298 S.E.2d 781 (1981). Therefore, transfer to modern federal facilities in California was considered the best alternative both for the tranquility of Alderson Prison and for the rehabilitation of Miss Schofield and Miss Ray. W.Va. Const. art. III, § 5 it is argued, does not apply to transfers out of West Virginia of state prisoners who actively resist their confinement in this state. According to the respondents, the constitutional provision forbids only banishment from the territory of West Virginia as punishment for a crime.

II

We cannot interpret W.Va. Const. art. III, § 5 as limited to forbidding banishment as a punishment for a crime. The transportation clause states that, "No person shall be transported out of, or forced to leave the State for any offense committed within the same ...." We emphasize the use of the word "forced" and hold that this article prevents a prisoner convicted under West Virginia law from involuntarily serving any portion of her sentence beyond the West Virginia borders.

Our opinion in this regard is not altered by the Illinois Supreme Court's reading of their transportation clause (which is essentially the same as ours). Sayles v. Thompson, 99 Ill.2d 122, 75 Ill.Dec. 446, 457 N.E.2d 440 (1983) (transportation clause not violated if out-of-state transfer is in prisoner's best interest and is not cruel and unusual punishment). Nor do we choose to follow the Vermont Supreme Court's reasoning in Girouard v. Hogan, 135 Vt. 448, 378 A.2d 105 (1977), where confinement of a Vermont prisoner outside of that state was regarded only as a "fortuitous consequence of a properly invoked administrative decision and not a designed denial of the State of Vermont to him imposed as a penalty." 378 A.2d at 106-07.

We note that the Vermont constitution does not contain a transportation clause and prefer the interpretation of the Supreme Court of Georgia which stated, "the historical policy of the state prohibits banishment from the state and this policy is firmly fixed in our fundamental law." State v. Collett, 232 Ga. 668, 669, 208 S.E.2d 472, 473 (1974). West Virginia prisoners, incarcerated in federal facilities in West Virginia, who are punished for breaking prison rules and sent out of state are effectively being punished by banishment. Such actions constitute penalties which are at loggerheads with the Constitution, our fundamental law.

The United States Supreme Court recently considered the question of transferring prisoners from one state to another. In Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983), the Supreme Court held that a state prison inmate has no federal constitutional right not to be transferred to prison in another state. But the Supreme Court was quick to note:

A conviction, whether in Hawaii, Alaska, or one of the contiguous 48 States, empowers the State to confine the inmate in any penal institution in any State unless there is state law to the contrary; ...

[emphasis supplied] Note 9, at 461 U.S. 248, Note 9, 103 S.Ct. 1747. West Virginia has a constitutional provision to the contrary that is clear and unambiguous. It is a well-established principle of constitutional construction that:

Where a provision of a constitution is clear in its terms and of plain interpretation to any ordinary and reasonable mind, it should be applied and not construed.

Syl. Pt 3, State ex rel. Smith v. Gore, 150 W.Va. 71, 143 S.E.2d 791 (1965); Syl. Pt. 4, State v. Pauley, 158 W.Va. 298, 210 S.E.2d 649 (1974). West Virginia's constitutional provision clearly forbids any semblance of the punishment known at common law as "abjuration of the realm," 4 Bl.Com. 333, and subsequently as banishment, a penalty regarded by Madison to be "among the severest." J. Madison, 4 Elliott's Debates, 455.

Our state's hostility to banishment is not based on caprice, nor is it antiquated in spirit (although that would not relieve us of our duty to uphold the constitution). W.Va. Const. art. III, § 5, is still an essential prophylaxis to protect our inmates. It serves to prevent prison administrators from banishing difficult prisoners, such as Miss Schofield and Miss Ray, to distant facilities in the name of administrative convenience. The provision would, for example, deny a warden the ability to exile an inmate who became a vocal advocate of prisoners' rights and hence irksome to overworked and understaffed officials. The warden could not silence her voice by sending her to another facility in another state. To remain in West Virginia, even to complain and be difficult, is that prisoner's constitutional right.

There is another reason for the prohibition of out-of-state prisoner transfers under W.Va. Const. art. III, § 5. Transfer signifies a loss of state supervision over the daily treatment of inmates committed by the courts to state custody. It makes it difficult for us regularly to monitor our inmates complaints and to insure their proper care. ¹

In addition to the lack of supervision, we realize that the family and friends of a West Virginia inmate imprisoned in California will certainly find visiting that inmate very expensive and perhaps entirely impossible. This deprivation, in turn, may produce a significant strain on our prisoners and interfere with their rehabilitation. We take note of the Consent Decree of Scales et al. v. Gwinn, Civil Action No. 80-2001-CH, 19 January 1984 which states:

It shall be the policy of the Department of Corrections to provide an effective visiting program that will enhance rehabilitative efforts, establish a reasonable normalization of social relationships and satisfy security requirements of its facilities." Scales et al. v. Gwinn, at 11.

The isolation from family, friends and counsel which results from the petitioners' California imprisonment is in effect additional punishment not befitting their crimes.

III

The respondents insist that W.Va.Code, 25-1-16 [1972] authorizes transfers of the type undertaken in this case. That section reads in relevant part:

The state commissioner of public institutions shall have authority to cause the transfer of any patient or inmate from any state institution or facility to any other state or federal institution or facility which is better fitted...