Young, Matter of

• Decision Date: 31 December 1980
• Docket Number: No. 47001-4,47001-4
• Citation: 95 Wn.2d 216,622 P.2d 373
• Parties: In the Matter of the Personal Restraint Petition of Ricky Anthony YOUNG, Petitioner.
• Court: Washington Supreme Court

Page 216

95 Wn.2d 216

622 P.2d 373

In the Matter of the Personal Restraint Petition of Ricky Anthony YOUNG, Petitioner.

No. 47001-4.

Supreme Court of Washington, En Banc.

Dec. 31, 1980.

Fredrickson, Maxey, Bell & Stiley, Inc., P. S., Carl Maxey, Spokane, for petitioner.

Slade Gorton, Atty. Gen., David R. Minikel, Asst. Atty. Gen., Olympia, for respondent.

ROSELLINI, Justice.

The petitioner was convicted of arson in 1974, the conviction being affirmed in State v. Young, 87 Wash.2d 129, 550 P.2d 1 (1976). In 1976, he was convicted of first degree homicide, and an appeal in that case also resulted in affirmance. State v. Young, 89 Wash.2d 613, 574 P.2d 1171 (1978). He is presently serving the sentence imposed in the arson case. When he is discharged from that offense, he will begin serving the homicide sentence.

The petitioner was initially confined in the state penitentiary at Walla Walla. On August 21, 1979, he was placed in administrative segregation. On August 28 of that year, he was given a hearing of sorts, but according to his uncontroverted allegations, he was not advised of the conduct upon which the segregation order was based nor was he permitted to give evidence in his own behalf. He was told that he was a "negative leadership influence on the population and a threat to the security of the institution." His appeals to the acting warden and the Department of Social and Health Services were denied.

The petitioner remained in administrative segregation until September 28, 1979, when, without prior notice, he was transferred to the federal penitentiary at McNeil Island, where he immediately went on a hunger strike. Because of this conduct, he was returned to the custody of state prison authorities and, on October 6, was placed in the corrections center at Shelton, where he began another hunger strike.

In the meantime, a classifications representative of the state institution had applied to corrections authorities in Tennessee for an exchange of prisoners, including the petitioner. The exchange was successfully negotiated, and on November 16, 1979, the petitioner was sent to and incarcerated in that state.

One year later, while this petition was pending in this court, the petitioner was again transferred, this time to a penal facility at Phoenix, Arizona. We were advised by the Attorney General at the hearing on this petition that the most recent transfer was occasioned by the fact that one of the petitioner's fellow transferees had successfully contended in the courts of Tennessee that prison officials there had no authority to accept prisoners from a sister state. Arizona, we understand, is a party to a contract entered into pursuant to the Western Interstate Corrections Compact (authorized in RCW 72.70) and has such authority.

In support of this contention, the petitioner contends (1) that he is entitled under the laws of this state to be confined in institutions within the state, and specifically with the state penitentiary at Walla Walla; (2) that if he does not have that right, he at least has that right, under the due process clauses of the state and federal constitutions, to be given a hearing before being transferred to another institution; and (3) that the transfers to which he was subjected violated his constitutional right of access to the courts. He cites RCW 9A-20.020, which provides that a person convicted of a felony shall be punished by imprisonment in a state correctional institution. This section must be read together with RCW 72.13.120, which provides that every person convicted of an offense punishable by imprisonment in the state penitentiary shall, notwithstanding any inconsistent provision of law, be sentenced to imprisonment in a penal institution under the jurisdiction of the Department of Social and Health Services without designating the name of such institution, and that placement shall be in the discretion of the Secretary of the Department. It must also be read in conjunction with RCW 72.68.010, .040, and RCW 72.70, providing for transfers to other institutions within and without the state, all of which provisions were in effect when RCW 9A.20.020 was enacted and when the petitioner was convicted.

Read together, these provisions reveal a legislative intent that a person convicted shall initially be sent to a state institution, and that thereafter he may be transferred to other institutions in accordance with the statutory provisions.

It is also argued that because the legislature has required the Secretary of Social and Health Services to provide corrective, rehabilitative, and reformative programs (RCW 72.08.101), it was its intent that all persons convicted in this state should have the benefit of those programs throughout the duration of their prison terms. Again, the section must be read together with other statutes, which we have cited. Those statutes contemplate both intrastate and interstate transfers. Giving effect to all of the pertinent statutes, we find an intent to require these programs for the benefit of the prison population generally, and to serve society's interest in the rehabilitation of criminals, rather than to vest any right in individual prisoners. Furthermore, RCW 72.70, pursuant to which the petitioner is presently confined in Arizona, contemplates that the receiving state shall provide rehabilitation and treatment. RCW 72.70.010, Art. I, Art. IV(a). So it is evident that the legislature did not abandon its concern for the reformation and rehabilitation of prisoners when it provided for their transfer to prisons in other states.

The major thrust of the petition centers around a second contention that the constitutional due process clauses require that a prisoner be given a hearing before he is transferred to another state.

Persons sentenced to incarceration necessarily lose many of the rights and privileges of ordinary citizens, "a retraction justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1059, 92 L.Ed. 1356 (1948); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). As the Supreme Court said in Wolff, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime. Among the rights retained are substantial religious freedom, the right of access to the courts, and the right to be protected from invidious race discrimination. See the cases cited in Wolff, at 556, 94 S.Ct. at 2974. It was held in Wolff that prisoners may not be deprived of life, liberty, or property without due process of law. They are not, however, entitled to the full panoply of rights due a defendant in a criminal proceeding, but rather such process as is appropriate in the circumstances. The court said that there must be mutual accommodation between institutional needs and objectives and the provisions of the constitution that are of general application.

The United States Supreme Court in Wolff was concerned with the liberty interest which attaches to a prisoner's accumulated "good time" credits. It said that such an interest was not created by the constitution itself, but by the state, which had not only provided for good time but also specified that it was to be forfeited only for serious misconduct. Accordingly, it was held that the prisoner's interest in maintaining his good time credits had "real substance" and was sufficiently embraced within the Fourteenth Amendment liberty to entitle him to the minimum procedures appropriate in the circumstances, sufficient to assure that his state-created right was not arbitrarily abrogated.

The United States Supreme Court has also held that a prisoner has a sufficient liberty interest in parole to entitle him to a hearing before his parole is revoked. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The court in that case found that the prisoner had a liberty interest, although indeterminate, which included many of the core values of unqualified liberty and that its termination inflicted a "grievous loss" upon him. Although there was no rule or statute restricting revocation to cases where the conditions of parole had been violated, the court further found "(i)mplicit in the system's concern with parole violations" (Morrissey, at 479, 92 S.Ct. at 2599) the notion that the parolee is entitled to retain his liberty as long as he substantially abides by the conditions of his parole. It was held that the prisoner was entitled to a hearing before parole revocation.

Following the United States Supreme Court's lead in this developing area of constitutional law, we have held that minimal due process is required before revocation of probation (State v. Myers, 86 Wash.2d 419, 545 P.2d 538 (1976)) and before cancellation of a previously established, tentative parole release date for reasons other than the failure to produce a satisfactory parole release plan. Monohan v. Burdman, 84 Wash.2d 922, 530 P.2d 334 (1975).

It will be seen that all of these cases involved the liberty interest associated with conditional liberty or justifiably anticipated release from confinement.

The United States Supreme Court has also found that a certain liberty interest exists within the confines of a prison. In Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), it held that a prisoner asserted a justiciable claim under the federal civil rights act (42 U.S.C. § 1983 and 28 U.S.C. § 1343(3)), when he claimed, inter alia, that he had been denied due process in steps leading up to his disciplinary confinement. The court did not discuss the question of what process, if any, is due in those circumstances. Later, in Wolff v. McDonnell, supra at 571 n.19, 94 S.Ct. at 2982 n.19, the court said that solitary confinement is reserved for instances where serious misconduct has occurred. The court indicated that the procedures for revoking good time would be required where such discipline is...