State v. Killebrew

• Decision Date: 30 November 1983
• Docket Number: 81-2252-CR,Nos. 81-1345-C,s. 81-1345-C
• Citation: 115 Wis.2d 243,340 N.W.2d 470
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Marcel KILLEBREW, Defendant-Respondent-Petitioner. STATE of Wisconsin, Plaintiff-Appellant, v. Eugene ESPINOZA, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 470

340 N.W.2d 470

115 Wis.2d 243

STATE of Wisconsin, Plaintiff-Appellant, v. Marcel KILLEBREW, Defendant-Respondent-Petitioner.

STATE of Wisconsin, Plaintiff-Appellant, v. Eugene ESPINOZA, Defendant-Respondent.

Nos. 81-1345-CR, 81-2252-CR.

Supreme Court of Wisconsin.

Argued Oct. 5, 1983.

Decided Nov. 30, 1983.

John E. Tradewell, Asst. State Public Defender, for Killebrew and espinoza.

Jeffrey M. Gabrysiak, Asst. Atty. Gen., argued, with whom on the brief was Bronson C. La Follette, Atty. Gen., for plaintiff-appellant.

DAY, Justice.

This is a consolidation of two criminal cases: a review of a decision of the court of appeals, reversing an order of the Circuit Court for Dane County, Hon. Mark A. Frankel, Circuit Judge, dismissing a criminal prosecution for escape against Marcel Killebrew; and an appeal from an order of the Circuit Court for Dane County, Hon. Mark A. Frankel, Circuit Judge, dismissing a criminal prosecution for escape against Eugene Espinoza. The Espinoza case was taken by this court on a petition to bypass under Section 808.05(1), Stats. 1981-82.

The question is whether a criminal escape prosecution is barred under the double jeopardy clauses of the state and federal constitutions if the escapee has already been subjected to disciplinary action in the prison. We hold that administrative discipline for escape does not preclude criminal prosecution for the same incident. We therefore affirm the decision of the court of appeals in State v. Killebrew, 109 Wis.2d 611, 327 N.W.2d 155 (1982) and reverse the order of the circuit court in Espinoza.

The two cases consolidated in this court arose out of separate incidents. The defendant Marcel Killebrew was incarcerated at the Wisconsin Correctional Camp in Oregon. He allegedly left that institution without permission and was subsequently apprehended and returned. At the time of Killebrew's recapture, the prison was operating under a Division of Corrections Administrative Procedures Manual. The defendant was charged with having left state property without permission in violation of rule number 401. He waived formal hearing on the alleged violation and consented to disposition of the matter by the prison adjustment committee. The committee determined that a rule violation had occurred and placed Killebrew on 360 days of "program segregation" and forfeited five days earned good time. The defendant was returned to the general prison population after approximately fifty days in segregated confinement.

On June 9, 1980, Killebrew was charged with escape in violation of Section 946.42(3)(a), Stats. 1979-80. ¹ He moved to dismiss the complaint on the grounds that he had already been punished and the initiation of criminal proceedings was therefore barred under the fifth amendment double jeopardy clause. Judge Mark Frankel granted the motion in a memorandum decision dated June 11, 1981. The state appealed. On November 9, 1982, the court of appeals reversed the trial court's order dismissing the complaint. This court granted the defendant's petition for review.

Eugene Espinoza is alleged to have left the Oakhill Correctional Institution in Fitchburg without permission. He was apprehended and returned to the prison. Espinoza's escape and recapture took place after the effective date of Chapter HSS 303 Wis.Ad.Code. He was found to have violated Section 303.22. The adjustment committee imposed eight days of "adjustment segregation," 180 days of "program segregation" and forfeited all of the defendant's accumulated good time.

Espinoza was charged with escape in Dane County Circuit Court on September 28, 1981. Judge Frankel granted the defendant's motion to dismiss on double jeopardy grounds citing his decision in Killebrew. The state appealed. The court of appeals stayed consideration of the case pending possible review by this court of the court of appeals decision in Killebrew. After the petition for review was granted in Killebrew, Espinoza petitioned this court to bypass the court of appeals. This court granted the bypass petition under Section 808.05(1), Stats. 1981-82.

Both the United States Constitution and the Constitution of the State of Wisconsin protect criminal defendants from being subjected to double jeopardy. ² The federal prohibition has been held applicable to the states through the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the United States Supreme Court analyzed the Fifth Amendment double jeopardy guarantee as consisting of three separate constitutional protections. "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." 395 U.S. at 717, 89 S.Ct. at 2076. It is the protection against multiple punishment which is asserted by the defendants in this case.

The United States Supreme Court has never ruled on the question of whether disciplinary action by prison authorities forecloses criminal prosecution for the same conduct. A number of state and federal cases have held that administrative sanctions imposed by prison officials do not bar subsequent prosecution in a criminal court. ³

The defendants argue that none of these cases are precedent for this case because all of them either, (1) are factually distinguishable; (2) are based on a serial prosecution analysis rather than a multiple punishment analysis; or (3) blindly rely on Pagliaro v. Cox, 143 F.2d 900 (8th Cir.1944) which held that forfeiture of good time is not punishment under the Constitution on the grounds that good time is a statutorily created contingent privilege and therefore its forfeiture does not implicate the double jeopardy clause. Whatever the merit of those cases, we conclude that the administrative action taken in this case was not punishment under the constitution and prosecution on criminal escape charges is not barred by the double jeopardy clause.

The United States Supreme Court stated the test for determining when governmental action is punishment for double jeopardy purposes in Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1938). The question in that case was whether an acquittal on a criminal tax fraud charge barred the government from assessing a civil penalty amounting to a fifty percent addition to the tax deficiency. The Court said:

"Mitchell contends that the proceeding is barred under the doctrine of double jeopardy because the 50 per centum addition of $364,354.92 is not a tax, but a criminal penalty intended as punishment for allegedly fraudulent acts. Unless this sanction was intended as punishment, so that the proceeding is essentially criminal, the double jeopardy clause provided for the defendant in criminal prosecutions is not applicable." 303 U.S. at 398-399, 58 S.Ct. at 632-633.

The Court concluded that the fifty percent addition was a nonpunitive, remedial measure imposed as a safeguard for the protection of the revenue and to reimburse the government for the expense of investigation and the loss resulting from the taxpayer's fraud. Therefore, the assessment was not barred under the double jeopardy clause by the prior criminal acquittal.

The United States Supreme Court discussed the question of when jeopardy attaches under the constitution in the context of juvenile court adjudicatory hearings in the case of Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). In that case, the Court reiterated its holding in Helvering v. Mitchell, that double jeopardy applies only to proceedings that are "essentially criminal." 421 U.S. at 528, 95 S.Ct. at 1785. The Court further observed that "the risk to which the term jeopardy refers is that traditionally associated with "actions intended to authorize criminal punishment to vindicate public justice." 421 U.S. at 529, 95 S.Ct. at 1785 citing United States ex rel. Marcus v. Hess, 317 U.S. 537, 548-549, 63 S.Ct. 379, 386-387, 87 L.Ed. 443 (1943).

This court recognized the controlling importance of intent in identifying punishment for double jeopardy purposes in State ex rel. Flowers v. Department of Health & Social Services, 81 Wis.2d 376, 260 N.W.2d 727 (1978). That case addressed the question of whether the department at a parole revocation hearing could consider an incident for which Flowers had been prosecuted and acquitted in criminal court. Because the parole revocation was not punishment, consideration of past conduct, even conduct for which a jury had acquitted the defendant under a standard of beyond a reasonable doubt could still be proven ⁴ and used as a basis to revoke parole. The court said that jeopardy is absent from proceedings which are not "essentially criminal" and "a proceeding is criminal, for double jeopardy purposes, if it imposes a sanction intended as punishment. 81 Wis.2d at 383, 260 N.W.2d 727. The court concluded that "revocation hearings are not concerned with retribution. Parole and probation are intended to foster the reintegration of the individual into society at the earliest opportunity." 81 Wis.2d at 385, 260 N.W.2d 727. Furthermore, "the element of punishment in parole revocation is attributable to the crime for which the parolee was originally convicted and sentenced." 81 Wis.2d at 386, 260 N.W.2d 727.

Subsequent to this court's decision in Flowers, the United States Supreme Court once again considered the question of what constitutes punishment under the constitution in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). The question in that case was whether detention prior to trial deprived detainees of their liberty without due process of law. The Court stated that the proper inquiry in such a case is whether the restrictions placed on the detainees amounted to punishment. The Court said that in...