Watkins v. Dept. of Safety

• Decision Date: 09 September 2003
• Docket Number: No. 118,118
• Parties: Glenn WATKINS, John Dillard, & Gerald Fuller, v. SECRETARY, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES.
• Court: Maryland Court of Appeals

831 A.2d 1079

377 Md. 34

Glenn WATKINS, John Dillard, & Gerald Fuller, v. SECRETARY, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES.

No. 118, Sept. Term, 2002.

Court of Appeals of Maryland.

September 9, 2003.

Stephen Z. Meehan (David C. Wright, Joseph B. Tetrault and Pauline K. White, on brief), Chestertown, for appellants.

Michael O. Doyle, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, for appellee.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

BATTAGLIA, Judge.

The issue in this case is whether Division of Correction Directives (hereinafter "DCDs") 100-105, 100-508, and 100-543, governing the security classification of inmates of the Division of Correction (hereinafter the "DOC"), are ex post facto laws and thus violate Article I of the United States Constitution and Article 17 of the Maryland Declaration of Rights. We hold that DCD 100-105, DCD 100-508, and DCD 100-543 do not constitute "laws" within the meaning of the ex post facto clauses of the United States Constitution and Maryland Declaration of Rights because they were promulgated as guidelines for the exercise of discretionary administrative authority. Therefore, the DCDs in issue do not violate the constitutional prohibitions against ex post facto laws.

I. Background

A. The DCDs

As head of the DOC, the Commissioner of Correction (hereinafter the "Commissioner") has the responsibility for the division's operation and conduct. See Maryland Code, § 3-203 of the Correctional Services Article (1999). The Commissioner establishes the formal written policies of the DOC through the promulgation of DCDs, which are recorded and disseminated to ensure consistent and legally compliant agency operation. See DCD 1-3 V. As set forth under DCD 1-3, which governs the procedure for the development and publication of the DCDs, the directors of the programs within the DOC initiate the development of DCDs by drafting a new or revised DCD and submitting that document to the Commissioner or Deputy Commissioner for review. See DCD 1-3 VI.E. If the Commissioner or his deputy approves the draft, the new DCD is then printed and distributed. See id. DCD 1-3 requires all new or revised DCDs to be signed by the Commissioner or, in his or her absence, the Deputy Commissioner, and the DCDs "shall remain in effect until rescinded by the Commissioner." See DCD 1-3 VI.A; DCD 1-3 VI.E.8.a. All personnel who participate in this development and approval process fall under the authority of the Commissioner.

1. Security Classification

The DOC operates facilities for the confinement of prisoners at four different security levels: maximum, medium, minimum, and pre-release. DCD 110-12.IV.2. Inmates classified at a level other than minimum security are subject to reclassification every 12 months. See DCD 100-005.II.N.3.a. DCD 100-005.II.T makes clear, however, that inmate reclassification occurs at the discretion of the Commissioner:

Notwithstanding the provisions of this or any other directive and consistent with the law, the Commissioner and those authorized by the Commissioner have the absolute discretion to modify, suspend, or terminate the case management process for any reason. Similarly, the Commissioner or the Commissioner's designees retain the discretion to modify the classification and/or assignment of any inmate at any time for any reason.

On January 2, 1974, DOC maintained a subjective inmate security classification policy. Transfers to minimum security and pre-release were based on a discretionary assessment by the DOC classification team. Although this policy changed over the next 14 years and certain inmates lost opportunities for pre-release, the general policy of the DOC did not exclude all inmates serving life sentences from the pre-release system. On January 18, 1988, DOC adopted a "point system" for classifying inmates, under which each inmate assigned a point value for certain objective factors. Based on the inmate's total score, he or she then was recommended for a certain level of security. Still, under this system, no category of prisoner was precluded from progressing below medium security. On December 1, 1994, however, the DOC's formal policy declared that no inmates sentenced to life imprisonment could be transferred below medium security. On June 1, 1995, DOC issued DCD 100-005, which stated in part that, "[i]nmates serving life sentences shall be initially classified to no less than maximum security and shall not be reclassified below medium security." DCD 100-005.II.N.1.b. This section provides that an inmate who is serving a term of confinement for a rape or sex offense, "shall not be reduced below medium security unless approved for a delayed parole release contingent upon a transfer to lesser security ... or unless within one year of a mandatory supervision release date or maximum expiration release date." DCD 100-005 was revised on January 16, 1996, and December 7, 2001, but the security classification limits on inmates serving life sentences and certain sex offenders remained in place.

2. Work Release

The statutory authority for a work-release program has existed since 1963, with the enactment of Chapter 285 of the Maryland Laws of 1963. Initially, only inmates whose sentences were 5 years or less could participate, but the General Assembly, in 1964, amended the statute to remove the limits as to which inmates were eligible. The current statutory provisions that govern the work-release program are located in Maryland Code, §§ 3-801—3-807 of the Correctional Services Article (1999 & 2002 Supp.). Under those provisions, an inmate seeking work-release may apply to the warden of the correctional facility in which the inmate is confined, and the warden then may recommend the application to the Commissioner of Correction. Maryland Code, § 3-801(c) & (d)(1) of the Correctional Services Article (1999). The Commissioner or the Commissioner's designee "may approve, disapprove, or defer action" on the application. Section 3-801(d)(4) states that, "[a]t any time and for any reason, the Commissioner may revoke approval for an inmate to participate in the work-release program."

Prior to June 2, 1993, inmates serving life sentences had opportunities to obtain work-release privileges. See Division of Correction Regulation 155-2 (April 1, 1991) (allowing inmates serving life sentences the opportunity for work release after the initial parole hearing and with the Parole Commission's recommendation).¹ On June 2, 1993, after a life-sentenced inmate murdered his girlfriend and then committed suicide while on work-release, the Commissioner suspended the work release privileges of all inmates serving life sentences. On February 1, 1997, the DOC amended DCD 100-508, to render inmates serving life sentences "ineligible for work release." DCD 100-508.II.D states that an inmate "who has escaped during the current incarceration" "shall be ineligible for work release."²

3. Family Leave

Section 3-811 of the Correctional Services Article grants authority to the Commissioner to grant family leave. That section provides in part:

(a) In general. The Commissioner or Commissioner's designee may grant family leave to allow an inmate to visit the inmate's family for a reasonable time if the inmate:

(1) is confined in a correctional facility [of the DOC];

(2) is classified to be in prerelease status; and

(3) is recommended by the correctional facility's case management team and managing official.

Until June 2, 1993, when the Commissioner declared all life-sentenced inmates ineligible for family leave, inmates serving life sentences who had met the conditions of Section 3-811 and the other criteria of the DOC could receive family leave. On April 15, 1997, DOC issued DCD 100-543, which stated that "[i]nmates serving life sentences, including life with all but a portion suspended, and inmates under a sentence of death are not eligible for family leave consideration."

B. The Inmates

This case originated in the Inmate Grievance Office (hereinafter the "Grievance Office"), which dismissed the grievances of three inmates of the DOC: Glenn Watkins, John Dillard, and Gerald Fuller. Although the central issue in this case— whether DCDs 100-105, 100-508, and 100-543 are unconstitutional ex post facto laws—is common to all three inmates, each inmate's grievance differs based on his individual circumstances.

1. Glenn Watkins

Glenn Watkins was convicted of first degree murder and, on May 5, 1972, began serving a life sentence with a concurrent sentence of fifteen years imprisonment. During his period of incarceration until June 2, 1993, when inmates serving life sentences, including Watkins, became ineligible for work-release and family leave, he successfully had completed 57 family leave furloughs and had participated in the work-release program. On June 1, 2000, Watkins filed a grievance with the Inmate Grievance Office (hereinafter the "Grievance Office") and stated:

[My] complaint involves the promulgation of [DCDs] by former Commissioner of Correction, Richard Lanham, which permanently prohibit life sentenced inmates from progressing below medium security (DCD 100-005), from participating in work release programming (DCD 100-508), and from participation in family leave programming (DCD 100-543).[I] had actively achieved each of these security statuses before all life sentenced inmates were, supposedly, temporarily removed from the prerelease system on June 3, 1993.

He claimed that the DCDs "are in violation of the ex post facto clause[s] of the Maryland and United States Constitutions" and requested that they be "rescinded as illegal." On December 11, 2000, the Executive Director of the Grievance Office dismissed Watkin's grievance for the following reasons:

[T]he Commissioner of Correction is responsible for the security of prisoners committed to his custody. As

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