White v. Fauver

• Decision Date: 06 July 1987
• Citation: 530 A.2d 37,219 N.J.Super. 170
• Parties: Norwood L. WHITE, Appellant, v. William H. FAUVER, Commissioner, New Jersey Department of Corrections, Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 170

219 N.J.Super. 170

530 A.2d 37

Norwood L. WHITE, Appellant, v. William H. FAUVER, Commissioner, New Jersey Department of Corrections, Respondent.

Superior Court of New Jersey Appellate Division.

Submitted March 31, 1987.

Decided July 6, 1987.

Alfred A. Slocum, Public Defender of N.J., for appellant (T. Gary Mitchell, Deputy Public Defender, on the brief).

W. Cary Edwards, Atty. Gen. of N.J., for respondent (Jeffrey A. Bartolino, Deputy Atty. Gen., on the brief).

Before Judges MICHELS, O'BRIEN and LANDAU.

The opinion of the court was delivered by

O'BRIEN, J.A.D.

Norwood L. White (appellant), an inmate in the State prison system, appeals from a final decision of the Department of Corrections (DOC) which affirms the denial of appellant's appeal from the Classification Committee's decision to reduce his custody status. We affirm.

Appellant is serving an aggregate term of 35 to 53 1/2 years in State prison for a series of offenses, including a term of 30 years to the Adult Diagnostic & Treatment Center (ADTC) for rape. He was initially received in the State prison system on April 1, 1975. On May 21, 1982, he was transferred from the Vroom Readjustment Unit at Trenton State Prison to ADTC at his own request. Upon his arrival at ADTC, he was classified as maximum custody. However, on September 16, 1982, he was approved for "gang minimum" custody status. ¹

Inmates classified as minimum security and who are considered sufficiently trustworthy to be employed in honor camps, farms or details, shall receive further remission of time from their sentences at the rate of three days per month for the first year of such employment and five days per month for the second and each subsequent year of such employment. N.J.S.A. 30:4-92. It is not disputed that while classified as "gang minimum" custody appellant became entitled to, and received, all benefits accompanying that status, including remission of time from his sentence provided for by the statute.

On August 4, 1984, an inmate serving a life sentence for murder escaped from the Minimum Security Rahway Camp which is a housing facility adjoining Rahway State Prison and located in a densely populated community. ADTC is located in the immediate vicinity of Rahway State Prison. As a result of that escape, the DOC reassessed its policy concerning inmate eligibility for reduced custody at both ADTC and Rahway State Prison. ² A telephone directive was given by Gary J. Hilton, Assistant Commissioner of the DOC, to the Acting Superintendent of ADTC, which ordered a Special Classification Review Committee to evaluate all ADTC inmates who were either already assigned to, or on a waiting list for, reduced custody status. Mr. Hilton suggested that a "conservative outlook" be taken by the committee and that each inmate's criminal offense history be particularly scrutinized before he is afforded the privilege of a reduced custody status. ³

On August 9 and 10, 1984, the Classification Committee met and conducted an in-depth review of all ADTC inmates assigned to a reduced custody status. As a result, 28 inmates reverted to maximum custody from either "gang" or "full minimum" custody status. Two inmates reverted to "gang minimum" from "full minimum" status, and four inmates, including appellant, temporarily reverted to maximum custody pending further Classification Committee review. An additional 27 inmates retained their reduced custody status.

Appellant was notified by memo dated August 10, 1984 from Grace Matava, Senior Classification Officer, that the result of the Classification Committee's review of his case was as follows:

Revert to maximum custody status pending clarification of your sentence. You may continue to work in your present assignment until your case is reviewed again by the Classification Committee.

After an exchange of correspondence and several meetings between Ms. Matava and appellant, his parole eligibility date was finally ascertained and requested status review was heard by the Classification Committee. As reported in a memo from Ms. Matava to appellant dated December 6, 1984, the Classification Committee's decision was:

Confirm removal from gang minimum status.

Reasons for the decision are:

1. extensive offense history

2. serious nature of present offense

3. past community failures.

The decision of the assistant superintendent of ADTC on appellant's appeal, dated December 20, 1984, reads as follows:

Per institutional policy, your appeal of the Classification Committee's above action was forwarded to me for adjudication.

I am denying your appeal of the Classification Committee's decision of December 6, 1984, based on the following.

The Classification Committee which you appeared before and that rendered the decision denying the restoration of your minimum custody status is composed of members with many years of correctional experience. They are cognizant of your 'due process rights,' evidenced by your appearance before the Committee. Their decision in denying your minimum custody was based on your criminal history, length of sentence, community failure, which are all valid reasons to deny reduction in custody. The fact that a review conducted of all inmates in minimum custody was initiated by Assistant Commissioner Gary Hilton per telephone, does not negate the legitimacy of the examinations of those inmates classified as minimum. This institution's primary responsibility is the safety and well being of the community.

In summation, a reduction in custody status is a privilege not a right. No Classification Committee is required to automatically grant a reduction in custody to every inmate who is eligible for consideration....

Notwithstanding that there is no provision for appeal of Classification Committee decisions above the institutional level, on appellant's appeal, the Assistant Commissioner of the DOC reviewed the committee's action and concluded:

As a result of this general review and the more conservative posture now required for granting reduced custody status, it appears that the Classification Committee acted properly in rescinding your minimum status for the stated reasons.

We would, therefore, support former Superintendent Kemp's denial of your appeal for the reasons set forth in his letter of December 20, 1984 to you.

On this appeal, defendant makes the following arguments:

I. THE CORRECTIONS DEPARTMENT'S REVOCATION OF APPELLANT'S REDUCED CUSTODY STATUS FAILED TO FOLLOW DEPARTMENT STANDARDS.

II. REVOCATION OF APPELLANT'S REDUCED CUSTODY STATUS RAISES A PROTECTIBLE LIBERTY INTEREST AND TO AFFORD DUE PROCESS THE DETERMINATION MUST ADHERE TO THE CRITERIA SPECIFIED FOR SUCH DECISIONS IN DEPARTMENT STANDARDS.

III. THE AUGUST 8, 1984 IMPOSITION OF NEW POLICIES AND CRITERIA FOR THE REVOCATION OF REDUCED CUSTODY STATUS ON ADTC RESIDENTS ARE INVALID UNDER THE NEW JERSEY ADMINISTRATIVE PROCEDURE ACT'S REQUIREMENTS FOR RULEMAKING TO WHICH THE DEPARTMENT OF CORRECTIONS IS SUBJECT.

IV. THE AUGUST 8 DETERMINATION OF ASSISTANT COMMISSIONER HILTON AND THE FINAL DECISION REVOKING APPELLANT'S

REDUCED CUSTODY STATUS VIOLATED CONSTITUTIONAL PROTECTIONS AGAINST EX POST FACTO LAWS.

The DOC Standards in effect at the time appellant's custody status was increased were followed by the Classification Committee. We note that pursuant to standard 853.4, the Classification Committee is the only body authorized to reduce an inmate's custody status. However, in an emergency situation or when additional information is received which negatively affects an inmate's suitability to remain in reduced custody (i.e., parole board decisions, escape plans, etc.), the inmate's custody level can be increased temporarily by order of the superintendent, assistant superintendent, or director of custody operations. Such changes must nevertheless be reviewed and approved by the institution Classification Committee at its next regularly scheduled meeting. Standard 853.4B.

The Classification Committee reviewed appellant's custody status on August 9 or 10, 1984 and increased it to maximum custody pending clarification of his sentence. Standard 853.4B clearly provides that reductions in inmate's custody levels shall be made by the institutional Classification Committee, although, as noted in Jenkins v. Fauver, see footnote 2, there were no specific guidelines for the institutional Classification Committee to follow in increasing an inmate's custody level. While we agree with that decision that a change in an individual's classification must be for cause and not arbitrary, we conclude that the change in appellant's status was for cause.

We recognize appellant's contention that the reasons given for increasing his classification to maximum security from "gang minimum" were in existence at the time the Classification Committee reduced his status to gang minimum, and that appellant did nothing in the interim which would warrant increasing his custody status as an individual inmate. However, it is evident that after the escape of a prisoner on minimum security, the responsibility of the DOC to the public mandated a review and reevaluation of those prisoners on, or eligible for, reduced custody status. The suggestion that the review be with a more "conservative outlook or posture" suggests that the earlier evaluations for a change in custody status were more liberal in their approach. Thus, it was not any action by appellant that resulted in his increase in custody status, but rather a change in "outlook or posture" in determining the status classification. Under the more liberal approach, appellant apparently met the classification standard, whereas, under the more conservative approach, he did not. We are satisfied that the change in approach was dictated by the escape of an inmate serving a term for murder and the necessity to consider the safety of the public. In addition, as observed by Mr. Hilton, it is necessary to consider the public's perception of what...