South v. Franzen

• Decision Date: 26 November 1980
• Docket Number: No. 16234,16234
• Citation: 46 Ill.Dec. 83,90 Ill.App.3d 595,413 N.E.2d 523
• Parties: , 46 Ill.Dec. 83 Gary SOUTH, Petitioner-Appellee, v. Gayle M. FRANZEN, Director, Illinois Department of Corrections, John Heckel, Warden, Illinois Correctional Center, Vandalia, Illinois, Respondents- Appellants.
• Court: United States Appellate Court of Illinois

Page 523

413 N.E.2d 523

90 Ill.App.3d 595, 46 Ill.Dec. 83

Gary SOUTH, Petitioner-Appellee, v. Gayle M. FRANZEN, Director, Illinois Department of Corrections, John Heckel, Warden, Illinois Correctional Center, Vandalia, Illinois Respondents- Appellants.

No. 16234.

Appellate Court of Illinois, Fourth District.

Nov. 26, 1980.

William J. Scott, Atty. Gen., State of Illinois, Melbourne A. Noel, Jr., Asst. Atty. Gen., Chicago, Terence M. Madsen, Senior Law Clerk, for respondents-appellants.

James K. Genden, Mayer, Brown & Platt, Chicago, for petitioner-appellee.

MILLS, Presiding Justice:

We are forced to become embroiled in disciplinary matters of correctional facilities. And we are most loath to do so!

For such matters are best left up to penal authorities.

In any event-we affirm.

South, while serving a sentence for burglary at the Decatur Community Correctional Center, was found to be in possession of 3.1 grams of marijuana. Because of this infraction of rules of the Illinois Department of Corrections, the Institutional Adjustment Committee recommended that 12 months of South's good time credit be revoked. The Administrative Review Board and respondent Franzen approved that recommendation, and South's earliest possible release date became November 8, 1980, rather than November 8, 1979.

South's good time credit was revoked pursuant to section 804(II)(A)(28) of the Administrative Regulations of the Department of Corrections, Adult Division. That section provides that a maximum of 12 months' good time credit may be revoked for: "Violating the general laws of the State or Federal government." Initially, South was also charged with violation of section 804(II)(A)(9) of the Regulations, which allows a revocation of a maximum of three months' good time credit for: "Using intoxicants, being under the influence of any kind of drug or medication not prescribed by institutional personnel, or having possession of narcotics, barbiturates and/or amphetamines."

On February 26, 1980, South filed a habeas corpus petition. At the hearing on that petition, he argued that section 804(II)(A)(9)-specific-and not section 804(II)(A)(28)-general-was the applicable provision. The trial court ruled, however that the particular language of section 804(II)(A)(9) does not encompass possession of marijuana. But the court then ruled that to revoke 12 months' good time credit for South's conduct would be grossly disproportionate to his offense. Thus, South's petition for habeas corpus was granted, and the court ordered his release. South had at that time been imprisoned more than five months past the date when he would have been released had none of his good time credit been revoked.

I

Courts are most reluctant to be interjected into the disciplinary problems of correctional agencies-and rightly so. When confronted with cases involving prison discipline and the enforcement of rules designed to ensure the security of penal institutions, courts of review traditionally give great deference to the judgment of prison authorities. (Jones v. North Carolina Prisoners' Union, Inc. (1977), 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629; In re Owen (1973), 54 Ill.2d 104, 295 N.E.2d 455.) Those officials have firsthand experience in determining what is and is not vital to the security and order of the institution. It is not, therefore, the province of a court to second-guess their actions or to substitute a less informed judgment for that of officials who are seeking to further the institution's vital interest in order and discipline. Bell v. Wolfish (1979), 441 U.S. 520, 99 S.ct. 1861, 60 L.Ed.2d 447; Pell v. Procunier (1974), 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495.

The role of the judiciary, rather, is to determine only whether prisoners' constitutional rights have been violated. (Owen.) But even in discharging that duty, we must be mindful that what constitutes a constitutional deprivation as to ordinary citizens may not raise issues of constitutional dimensions in the context of a prison. Thus, in Jones v. North Carolina Prisoners' Union, Inc. the Court upheld prison rules proscribing prisoner union meetings and inmate-to-inmate solicitation. In Bell v. Wolfish, the Court upheld certain prison searches that would unquestionably have been invalid if carried out against citizens outside a prison.

We agree with the trial judge that the letter of section 804(II)(A)(9) does not cover the offense of possession of marijuana. It could have been invoked had South been discovered to be under the influence of marijuana but it covers possession only of "narcotics, barbiturates and/or amphetamines." Our supreme court has held that marijuana may not be statutorily classified along with narcotics for purposes of determining punishment for possession or use of the substance. (People v. McCabe (1971), 49 Ill.2d 338, 275 N.E.2d 407.) Moreover, the General Assembly, in passing the Cannabis Control Act (Ill.Rev.Stat.1979, ch. 561/2, pars. 701-719) removed marijuana from the narcotic classification. Given these judicial and legislative statements, we cannot now say that marijuana is a "narcotic" for purposes of section 804(II) (A)(9). It also could not be considered a barbiturate or an amphetamine.

What we have here is faulty draftsmanship, not a conscious effort on the part of the Department of Corrections to treat possession of marijuana as a more serious offense than possession or use of other substances. However, we are obliged to take the regulation as we find it and cannot ourselves add the word "marijuana" to section 804(II)(A)(9) in order to make that provision applicable here.

The issue before us today, then, is whether South can be subjected to revocation of 12 months' good time credit under general section 804(II)(A)(28) for possession of marijuana when the more exact section 804(II)(A)(9) would allow a revocation of only three months' good time credit for possession of a narcotic or for being under the influence of marijuana or of a narcotic.

Were we presented with an issue involving the validity of a rule imposing the same punishment for possession of a narcotic and possession of marijuana, we would be inclined to uphold it on the principle of deferring to prison authorities' judgments in disciplinary matters. In a prison-as opposed to society at large-the possession of marijuana could be just as threatening to order and security as possession of a narcotic. But here a 12-month revocation has been imposed for an offense that is, in society, regarded as less serious than an offense for which there can be only a three-month revocation.

The State has advanced no plausible explanation of why possession of marijuana should be treated four times more severely than use of marijuana or use or possession of a narcotic. The deference that we usually give to prison authorities' judgments does not preclude us from deciding, under McCabe, that the punishment scheme that results from application of sections 804(II)(A)(9) and 804(II)(A)(28) violates South's constitutional right to equal protection.

The respondents have contended that Department of Corrections officials have the discretion to apply either section 804(II)(A)(9) or section 804(II)(A)(28) to any drug offense. Under that interpretation, the maximum good time revocation for use or possession of a narcotic would be the same as that for possession of marijuana-12 months. As suggested above, were we to accept that reading of the regulation, South's constitutional claim would lose its force. We cannot, however, believe that the drafters of Regulation 804(II)(A) intended such a result. That provision contains 27 enumerated section...