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New Jersey Prisoners' Disciplinary Convictions Reversed on Due Process Violations
The Appellate Division of the New Jersey Superior Court reversed two separate prison disciplinary matters after finding that two state prisoners were denied due process protections limiting the use of confidential informants and confidential information.
Andrew Daley, a prisoner at East Jersey State Prison, was charged with planning an assault on a prison guard. At his disciplinary hearing, prison officials based their case almost entirely on the statement of a confidential informant (CI). Only a summary of that statement was provided to Daley. It read, in part. "Daley was heard by a CI to state that he was planning an assault on Lt Pascucci at East Jersey State Prison." Daley was found guilty based on that summary.
On appeal, a Confidential Appendix to Daley's file was furnished to the Superior Court. The appendix, not available to Daley at his disciplinary hearing, revealed that the CI had quoted another prisoner, not Daley, as making the threat against Pascucci.
The court found the basic notice requirement, a critical due process guarantee, was clearly violated; Daley was not given a factual statement of the charges against him and was therefore denied an opportunity to meet the charge. The court reversed Daley's disciplinary conviction and remanded to the Department of Corrections for further proceedings.
Separately, Edward Williams, then a prisoner at New Jersey's Southern State Correctional Facility, was found near the prison laundry by a guard who alleged he smelled the odor of cannabis. The guard ordered Williams to provide a urine sample.
When the sample tested positive for cannabinoids. Williams was charged and convicted at a prison disciplinary hearing for being in an unauthorized area and use of narcotic paraphernalia.
Later Williams was charged and found guilty of attempting to possess or introduce narcotic paraphernalia. At his prison disciplinary hearing on this third charge, the evidence consisted of the findings of an internal affairs investigation, which were deemed "confidential" and could not be disclosed to Williams because they were part of an ongoing investigation.
On appeal, Williams challenged all three convictions. The Superior Court upheld the first two but reversed the third after finding that Williams' right to due process was violated by nondisclosure of the contents of the confidential report.
The court ruled that it was difficult to envision any legitimate interest that, in light of the need for due process would ever justify a total nondisclosure of the evidence used to charge and convict a defendant.
The court reversed Williams' third conviction and remanded to the Department of Corrections for further proceedings. See: Daley v. New Jersey Department of Corrections, 751 A.2d 1089 (NJ Super AD 2000) and Williams v New Jersey Department of Corrections, 749 A.2d 375 (NJ Super AD 2000).
Andrew Daley, a prisoner at East Jersey State Prison, was charged with planning an assault on a prison guard. At his disciplinary hearing, prison officials based their case almost entirely on the statement of a confidential informant (CI). Only a summary of that statement was provided to Daley. It read, in part. "Daley was heard by a CI to state that he was planning an assault on Lt Pascucci at East Jersey State Prison." Daley was found guilty based on that summary.
On appeal, a Confidential Appendix to Daley's file was furnished to the Superior Court. The appendix, not available to Daley at his disciplinary hearing, revealed that the CI had quoted another prisoner, not Daley, as making the threat against Pascucci.
The court found the basic notice requirement, a critical due process guarantee, was clearly violated; Daley was not given a factual statement of the charges against him and was therefore denied an opportunity to meet the charge. The court reversed Daley's disciplinary conviction and remanded to the Department of Corrections for further proceedings.
Separately, Edward Williams, then a prisoner at New Jersey's Southern State Correctional Facility, was found near the prison laundry by a guard who alleged he smelled the odor of cannabis. The guard ordered Williams to provide a urine sample.
When the sample tested positive for cannabinoids. Williams was charged and convicted at a prison disciplinary hearing for being in an unauthorized area and use of narcotic paraphernalia.
Later Williams was charged and found guilty of attempting to possess or introduce narcotic paraphernalia. At his prison disciplinary hearing on this third charge, the evidence consisted of the findings of an internal affairs investigation, which were deemed "confidential" and could not be disclosed to Williams because they were part of an ongoing investigation.
On appeal, Williams challenged all three convictions. The Superior Court upheld the first two but reversed the third after finding that Williams' right to due process was violated by nondisclosure of the contents of the confidential report.
The court ruled that it was difficult to envision any legitimate interest that, in light of the need for due process would ever justify a total nondisclosure of the evidence used to charge and convict a defendant.
The court reversed Williams' third conviction and remanded to the Department of Corrections for further proceedings. See: Daley v. New Jersey Department of Corrections, 751 A.2d 1089 (NJ Super AD 2000) and Williams v New Jersey Department of Corrections, 749 A.2d 375 (NJ Super AD 2000).
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Related legal cases
Daley v. New Jersey Department of Corrections
| Year | 2000 |
|---|---|
| Cite | 751 A.2d 1089 (NJ Super AD 2000) |
| Level | State Court of Appeals |
Daley v. Department of Corrections, 331 N.J.Super. 344, 331 N.J.Super. 344, 751 A.2d 1089, 751 A.2d 1089 (N.J.Super.App.Div. 06/05/2000)
[1] New Jersey Superior Court, Appellate Division
[2] A-0636-98T5
[3] 331 N.J.Super. 344, 331 N.J.Super. 344, 751 A.2d 1089, 751 A.2d 1089, 2000.NJ
[4] June 05, 2000
[5] ANDREW DALEY, APPELLANT,
V.
DEPARTMENT OF CORRECTIONS, RESPONDENT
[6] Andrew Daley, appellant pro se. John J. Farmer, Jr., Attorney General, attorney for respondent (Mary C. Jacobson, Assistant Attorney General, of counsel; Elena R. Flynn, Deputy Attorney General, on the brief).
[7] Before Judges Wallace, Jr., Cuff and Lesemann.
[8] The opinion of the court was delivered by: Lesemann, J.A.D.
[9] Submitted December 14, 1999 - Decided June 5, 2000
[10] On appeal from the Department of Corrections.
[11] This appeal implicates due process guarantees as they apply to a prison disciplinary action which involved substantial adverse consequences to the inmate involved--fifteen days detention, 365 days administrative segregation and 365 days loss of commutation time.
[12] While it is clear that the full panoply of Fourteenth Amendment due process guarantees do not apply to a prison disciplinary proceeding as they would to a non-prison criminal proceeding, such rights are abridged only "to the extent necessary to accommodate the institutional needs and objectives of prisons." McDonald v. Pinchak, 139 N.J. 188, 194 (1995). Under decisions of both the United States Supreme Court, see Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), and the even broader protections provided by the New Jersey Supreme Court, see McDonald v. Pinchak, supra; Avant v. Clifford, 67 N.J. 496 (1975), prison inmates remain entitled to certain basic due process protections. Unfortunately, the procedures followed here curtailed defendant's right to a fair hearing far beyond any restriction required by his prison environment and obviated one of the most basic aspects of any system of due process and fair treatment: a clear statement of the offense with which the accused is charged. Not only did the Department of Corrections (the Department) fail to provide a clear statement of the charge against appellant Daley (Daley), but in what it did provide, it misled and misinformed Daley and may well have made it impossible for him to defend the charge against him. For those reasons, we reverse and remand the matter to the Department for further proceedings.
[13] On July 14, 1998, Senior Internal Affairs Investigator Wojciechowicz filed a disciplinary report charging Daley (an inmate at East Jersey State Prison) with planning an assault on a correction officer. The report, a copy of which was served on Daley, describes the charge against him as follows:
[14] Based on information received in an ongoing investigation by the East Jersey State Prison (E.J.S.P.) Internal Affairs Unit (I.A.U.) it was learned that inmate Andrew Daley S.P. #260940 engaged in the planning of an assault against an E.J.S.P. custody staff member (Lt. Pascucci).
[15] That disciplinary report constituted the statement of charges against appellant. Daley pleaded not guilty to the charge and requested and was given a "counsel substitute" to represent him in the matter. Appellant insisted he had no idea who had made the charge against him, and he continued to assert his innocence. He was nevertheless placed in pre-hearing detention, the matter was investigated by Sergeant Vander Thompson of the Department, and a disciplinary hearing was scheduled for three days later, on July 17, 1998. The hearing was adjourned a number of times but was ultimately held on July 27, 1998.
[16] At the hearing, the Department based its case almost entirely on the statement of a confidential informant (CI). A summary of the CI's statement was provided to Daley and his counsel substitute. It read in part as follows:
[17] Subsequent to 6/13/98, I/M [Inmate] Daley was heard by a confidential informant to state that he was planning an assault on Lt. Pascucci at East Jersey State Prison.
[18] This informant submitted to a polygraph and was found to be truthful regarding the relevant questions. I/M Daley was offered a polygraph and refused.
[19] Appellant's counsel substitute had argued both before and at the hearing, that the CI's statement should not be used against appellant because it was "vague, ambiguous and not dated." He also asserted that it violated the requirements set out in Fisher v. Hundley, 240 N.J. Super. 156 (App. Div. 1990) because it failed to disclose where the remarks had been made and what the CI claimed appellant had said. Those objections, and further objections based on the adjournments of the hearing, were overruled and after the proceeding was concluded, the hearing officer found appellant guilty of the charge against him. The officer summed up the evidence of guilt as follows:
[20] I/m stated he would assault Lt. Pascucci. Statement was made to a reliable informant who passed polygraph. Rep. [counsel substitute] objects to use of informants and to postponements. But evidence is sufficient to convince a reasonable person of inmate's guilt. Report and confidential material relied upon (additional confidential material is being held at IA, at E.J.S.P. [presumably East Jersey State Prison]--Exhibit C-2).
[21] In what is apparently an addendum to the "Adjudication of Disciplinary Charge" rendered by the hearing officer, the officer annexed a one-page document entitled "Summary of Confidential Information." That document includes the following two paragraphs:
[22] Subsequent to 6/13/98, I/M Daley was heard by a confidential informant to state that he was planning an assault on Lt. Pascucci at East Jersey State Prison.
[23] This informant submitted to a polygraph and was found to be truthful regarding the relevant questions. I/M Daley was offered a polygraph and refused.
[24] On July 29, 1998, Daley appealed the decision against him. The appeal document signed by his counsel substitute objected to use of the confidential summary report against him, asserting that, [I]t lacked substance and it's more of a conclusion than a concise statement of facts based upon the informants personal knowledge. More importantly, the confidential summary failed to provide a specific time, place, or area of the prison the alleged statement was made by Daley.
[25] The document continued by claiming that the allegations against Daley were "vague, general, and un-corroborated by any other evidence whatsoever. See Fisher v. Hundley, 240 N.J. Super. at 158 (1990)." On August 18, 1998, the Department affirmed the decision of the hearing officer, concluding that, "There was compliance with the Department of Corrections Standards on inmate discipline which prescribes procedural safeguards. The decision of the Hearing Officer was based upon substantial evidence."
[26] The Department is not required to provide a taped record or stenographic transcript of disciplinary proceedings. See McDonald v. Pinchak, supra, 139 N.J. at 201-02. The Department did not do so here, and thus we have no clear record of precisely what was said at the disciplinary hearing. However, in his brief, appellant includes the following statement:
[27] A review of this case will reveal that the only information provided by the informant implicating appellant is the statement "that Pascucci, if I ever get out, I'll get him. If I don't, I'll get someone else to do it."
[28] Apparently, at some point during or before the hearing, a Department representative or the hearing officer quoted that statement as representing the CI's allegation of what appellant had threatened to do to Lt. Pascucci. That conclusion is consistent with a statement in the Attorney General's brief, on behalf of the Department, that, Appellant concedes in his own brief that the confidential informant claims to have heard appellant state, "that Pascucci, if I ever get out, I'll get him. If I don't, I'll get someone else to do it."
[29] From the foregoing, one would conclude that Daley is alleged to have made the quoted statement concerning Pascucci and that the statement was--not unreasonably--viewed as a threat against Lt. Pascucci. However, an examination of the Confidential Appendix provided to us by the Department reveals a totally different scenario.
[30] The Confidential Appendix begins with a report of Investigator Wojciechowicz involving three inmates: appellant Andrew Daley (sometimes referred to as "Drew"), Michael Campbell and Kevin Simon. Although neither the Confidential Appendix nor the other documents submitted are completely clear on the point, Campbell and Simon seem to have been charged with the same offense as Daley and all were found guilty. The report from Investigator Wojciechowicz begins with the statement of a CI who quotes Campbell (not Daley) as saying, "that Pascucci, if I ever get out I'll get him, if I don't I'll get someone else to do it." The CI also notes that Campbell was angry with Pascucci because Pascucci had caused the arrest of a civilian visitor to the prison, Donna Mullings, who was apprehended while attempting to smuggle drugs to Campbell. The CI also said that immediately after Campbell made his threatening remark about Pascucci, another inmate, whom the CI could not identify, responded, "Yeah, that's what someone needs to do." That second inmate was never identified and there is no suggestion that it was Daley.
[31] Daley appears in Wojciechowicz's report only with respect to a report by a CI (apparently a different CI than the one originally mentioned) who described a conversation between Daley and another inmate. In that conversation, the second CI says he heard Daley say that, "He (Drew) ain't doing or orchestrating nothing until he gets what he supposed to get from Mike (Campbell)." Apparently, Wojciechowicz asked the CI if he understood what "Drew" and the other inmate were supposed to get from Campbell, and the CI replied that each was supposed to get two ounces of marijuana.*fn1
[32] So far as appears, neither any representative of the Department nor the hearing officer ever made clear to appellant that it was Campbell (not Daley) who allegedly spoke of getting Pascucci or employing someone else to do so. Nor did anyone tell Daley what the CI claimed to have heard Daley say. All indications had been that the statement, which apparently came from Campbell, was said to have come from Daley, and it was that statement to which Daley (understandably) directed his defense.
[33] As noted, a prison inmate may have his due process rights "abridged to the extent necessary to accommodate the institutional needs and objectives of prisons." McDonald v. Pinchak, supra, 139 N.J. at 194. However, imprisonment does not mean that an inmate is bereft of constitutional rights or that he may be arbitrarily subjected to "grievous loss" without regard for due process. Avant v. Clifford, supra, 67 N.J. at 519.*fn2
[34] In Avant, the Court itemized and discussed sequentially the critical due process guarantees which must be afforded an inmate facing "grievous loss."*fn3 The first such requirement is "notice." As the Court said in Avant, both the holdings of the United States Supreme Court, see, e.g., Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), and the standards adopted by the Department itself require "that written notice . . . be given to the disciplinary action defendant in order to inform him of the charges and to enable him to marshal the facts and prepare a defense." Avant, supra, 67 N.J. at 525; see also Fisher v. Hundley, supra, 240 N.J. Super. at 158, (referring to the "Kafkaesque predicament of having to defend against evidence that was totally undisclosed"). In Fisher, this court reversed and remanded a disciplinary conviction in part because the vague notice to the appellant had misled him as to the actual charge against him.
[35] That basic notice requirement, essential if an accused is to have a reasonable opportunity to meet and defend against a charge, must specify as precisely as reasonably possible, just what the accused is said to have done. The requirement is explicitly recognized in the New Jersey Administrative Code, N.J.A.C. 10A:4-9.15(b)1ii, which provides that when the charge against the accused is based on the accusation of a CI, the accused is entitled to have "[T]he informant's statement . . . in language that is factual rather than a conclusion, . . . ."
[36] Here, that principle was clearly violated. We can see no reason why the charge against Daley could not have set out the language he is said to have used. Instead, he was charged with "planning of an assault" against Lt. Pascucci, and he was told the CI had heard him say, "he was planning an assault" on Lt. Pascucci. To the extent that he was given more precise information, the information was misleading and inaccurate. While he was told the CI had heard him say, "That Pascucci, if I ever get out, I'll get him. If I don't, I'll get someone else to do it," in fact the CI quoted Daley as saying only that he was not going to do anything until he got what he apparently wanted.
[37] That comment (on which the Department's entire case against Daley seems to be based) is, at best, ambiguous. The Department apparently contends that the words used represented an implicit or explicit expression of willingness to participate in a plot against Pascucci. But that is obviously a conclusion; it is not a "factual" statement of what appellant is alleged to have said.
[38] It may be that on proper notice to appellant, and after giving him a reasonable opportunity to meet the charge, the Department can prove its case and show that Daley's words did indeed demonstrate his participation in the plot charged. But that is not a foregone conclusion. Daley must be given an opportunity to argue or show the contrary. To exercise that right, he must be told what it is he is supposed to have said. Then, he may claim that he never made the statement, or he may acknowledge that he made the statement but argue that it does not mean what the Department says it means. He may also have some other explanation or defense. Whatever the case, he must be given a factual statement of what he is charged with--and not merely a broad allegation in conclusory language--and he must be given an opportunity to meet that charge. The Constitution and the controlling decisions of the courts of this State and the United States require nothing less.
[39] The matter is reversed and remanded to the Department for further proceedings consistent with this opinion.
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Opinion Footnotes
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[40] *fn1 The other inmate to whom Daley is said to have made these remarks was identified as Simon, who was also charged (with Campbell and Daley) with planning an attack on Pascucci. In a later portion of the Confidential Appendix, questions presented to the CI during a polygraph examination include one quoting Daley as saying, "me not going to orchestrate nothing until Mike give me the ganja."
[41] *fn2 Neither the court's discussion in Avant, nor our discussion here concerns "disciplinary response to minor infractions, sometimes called 'On-the-Spot-Correction' involving slight punishment such as verbal reprimand, temporary withdrawal of privileges or brief confinement to tier. . . ." As the Court stated in Avant," [w]e deal rather with disciplinary matters which may subject an individual to 'grievous loss' by way of punishment for serious misconduct. It is the prospect of such 'grievous loss' which quickens the right to constitutional due process by way of procedural protections." Id. at 518-19. Daley's sentence to a loss of 365 days commutation time would certainly constitute "grievous loss," and the Department does not argue the contrary.
[42] *fn3 Avant noted that in addition to minimal constitutional protections, the New Jersey Supreme Court also has broad supervisory review authority over administrative agencies such as the Department and has extended protections beyond "naked constitutional right" in order to "insure procedural fairness in the administrative process." Id. at 520.
[1] New Jersey Superior Court, Appellate Division
[2] A-0636-98T5
[3] 331 N.J.Super. 344, 331 N.J.Super. 344, 751 A.2d 1089, 751 A.2d 1089, 2000.NJ
[4] June 05, 2000
[5] ANDREW DALEY, APPELLANT,
V.
DEPARTMENT OF CORRECTIONS, RESPONDENT
[6] Andrew Daley, appellant pro se. John J. Farmer, Jr., Attorney General, attorney for respondent (Mary C. Jacobson, Assistant Attorney General, of counsel; Elena R. Flynn, Deputy Attorney General, on the brief).
[7] Before Judges Wallace, Jr., Cuff and Lesemann.
[8] The opinion of the court was delivered by: Lesemann, J.A.D.
[9] Submitted December 14, 1999 - Decided June 5, 2000
[10] On appeal from the Department of Corrections.
[11] This appeal implicates due process guarantees as they apply to a prison disciplinary action which involved substantial adverse consequences to the inmate involved--fifteen days detention, 365 days administrative segregation and 365 days loss of commutation time.
[12] While it is clear that the full panoply of Fourteenth Amendment due process guarantees do not apply to a prison disciplinary proceeding as they would to a non-prison criminal proceeding, such rights are abridged only "to the extent necessary to accommodate the institutional needs and objectives of prisons." McDonald v. Pinchak, 139 N.J. 188, 194 (1995). Under decisions of both the United States Supreme Court, see Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), and the even broader protections provided by the New Jersey Supreme Court, see McDonald v. Pinchak, supra; Avant v. Clifford, 67 N.J. 496 (1975), prison inmates remain entitled to certain basic due process protections. Unfortunately, the procedures followed here curtailed defendant's right to a fair hearing far beyond any restriction required by his prison environment and obviated one of the most basic aspects of any system of due process and fair treatment: a clear statement of the offense with which the accused is charged. Not only did the Department of Corrections (the Department) fail to provide a clear statement of the charge against appellant Daley (Daley), but in what it did provide, it misled and misinformed Daley and may well have made it impossible for him to defend the charge against him. For those reasons, we reverse and remand the matter to the Department for further proceedings.
[13] On July 14, 1998, Senior Internal Affairs Investigator Wojciechowicz filed a disciplinary report charging Daley (an inmate at East Jersey State Prison) with planning an assault on a correction officer. The report, a copy of which was served on Daley, describes the charge against him as follows:
[14] Based on information received in an ongoing investigation by the East Jersey State Prison (E.J.S.P.) Internal Affairs Unit (I.A.U.) it was learned that inmate Andrew Daley S.P. #260940 engaged in the planning of an assault against an E.J.S.P. custody staff member (Lt. Pascucci).
[15] That disciplinary report constituted the statement of charges against appellant. Daley pleaded not guilty to the charge and requested and was given a "counsel substitute" to represent him in the matter. Appellant insisted he had no idea who had made the charge against him, and he continued to assert his innocence. He was nevertheless placed in pre-hearing detention, the matter was investigated by Sergeant Vander Thompson of the Department, and a disciplinary hearing was scheduled for three days later, on July 17, 1998. The hearing was adjourned a number of times but was ultimately held on July 27, 1998.
[16] At the hearing, the Department based its case almost entirely on the statement of a confidential informant (CI). A summary of the CI's statement was provided to Daley and his counsel substitute. It read in part as follows:
[17] Subsequent to 6/13/98, I/M [Inmate] Daley was heard by a confidential informant to state that he was planning an assault on Lt. Pascucci at East Jersey State Prison.
[18] This informant submitted to a polygraph and was found to be truthful regarding the relevant questions. I/M Daley was offered a polygraph and refused.
[19] Appellant's counsel substitute had argued both before and at the hearing, that the CI's statement should not be used against appellant because it was "vague, ambiguous and not dated." He also asserted that it violated the requirements set out in Fisher v. Hundley, 240 N.J. Super. 156 (App. Div. 1990) because it failed to disclose where the remarks had been made and what the CI claimed appellant had said. Those objections, and further objections based on the adjournments of the hearing, were overruled and after the proceeding was concluded, the hearing officer found appellant guilty of the charge against him. The officer summed up the evidence of guilt as follows:
[20] I/m stated he would assault Lt. Pascucci. Statement was made to a reliable informant who passed polygraph. Rep. [counsel substitute] objects to use of informants and to postponements. But evidence is sufficient to convince a reasonable person of inmate's guilt. Report and confidential material relied upon (additional confidential material is being held at IA, at E.J.S.P. [presumably East Jersey State Prison]--Exhibit C-2).
[21] In what is apparently an addendum to the "Adjudication of Disciplinary Charge" rendered by the hearing officer, the officer annexed a one-page document entitled "Summary of Confidential Information." That document includes the following two paragraphs:
[22] Subsequent to 6/13/98, I/M Daley was heard by a confidential informant to state that he was planning an assault on Lt. Pascucci at East Jersey State Prison.
[23] This informant submitted to a polygraph and was found to be truthful regarding the relevant questions. I/M Daley was offered a polygraph and refused.
[24] On July 29, 1998, Daley appealed the decision against him. The appeal document signed by his counsel substitute objected to use of the confidential summary report against him, asserting that, [I]t lacked substance and it's more of a conclusion than a concise statement of facts based upon the informants personal knowledge. More importantly, the confidential summary failed to provide a specific time, place, or area of the prison the alleged statement was made by Daley.
[25] The document continued by claiming that the allegations against Daley were "vague, general, and un-corroborated by any other evidence whatsoever. See Fisher v. Hundley, 240 N.J. Super. at 158 (1990)." On August 18, 1998, the Department affirmed the decision of the hearing officer, concluding that, "There was compliance with the Department of Corrections Standards on inmate discipline which prescribes procedural safeguards. The decision of the Hearing Officer was based upon substantial evidence."
[26] The Department is not required to provide a taped record or stenographic transcript of disciplinary proceedings. See McDonald v. Pinchak, supra, 139 N.J. at 201-02. The Department did not do so here, and thus we have no clear record of precisely what was said at the disciplinary hearing. However, in his brief, appellant includes the following statement:
[27] A review of this case will reveal that the only information provided by the informant implicating appellant is the statement "that Pascucci, if I ever get out, I'll get him. If I don't, I'll get someone else to do it."
[28] Apparently, at some point during or before the hearing, a Department representative or the hearing officer quoted that statement as representing the CI's allegation of what appellant had threatened to do to Lt. Pascucci. That conclusion is consistent with a statement in the Attorney General's brief, on behalf of the Department, that, Appellant concedes in his own brief that the confidential informant claims to have heard appellant state, "that Pascucci, if I ever get out, I'll get him. If I don't, I'll get someone else to do it."
[29] From the foregoing, one would conclude that Daley is alleged to have made the quoted statement concerning Pascucci and that the statement was--not unreasonably--viewed as a threat against Lt. Pascucci. However, an examination of the Confidential Appendix provided to us by the Department reveals a totally different scenario.
[30] The Confidential Appendix begins with a report of Investigator Wojciechowicz involving three inmates: appellant Andrew Daley (sometimes referred to as "Drew"), Michael Campbell and Kevin Simon. Although neither the Confidential Appendix nor the other documents submitted are completely clear on the point, Campbell and Simon seem to have been charged with the same offense as Daley and all were found guilty. The report from Investigator Wojciechowicz begins with the statement of a CI who quotes Campbell (not Daley) as saying, "that Pascucci, if I ever get out I'll get him, if I don't I'll get someone else to do it." The CI also notes that Campbell was angry with Pascucci because Pascucci had caused the arrest of a civilian visitor to the prison, Donna Mullings, who was apprehended while attempting to smuggle drugs to Campbell. The CI also said that immediately after Campbell made his threatening remark about Pascucci, another inmate, whom the CI could not identify, responded, "Yeah, that's what someone needs to do." That second inmate was never identified and there is no suggestion that it was Daley.
[31] Daley appears in Wojciechowicz's report only with respect to a report by a CI (apparently a different CI than the one originally mentioned) who described a conversation between Daley and another inmate. In that conversation, the second CI says he heard Daley say that, "He (Drew) ain't doing or orchestrating nothing until he gets what he supposed to get from Mike (Campbell)." Apparently, Wojciechowicz asked the CI if he understood what "Drew" and the other inmate were supposed to get from Campbell, and the CI replied that each was supposed to get two ounces of marijuana.*fn1
[32] So far as appears, neither any representative of the Department nor the hearing officer ever made clear to appellant that it was Campbell (not Daley) who allegedly spoke of getting Pascucci or employing someone else to do so. Nor did anyone tell Daley what the CI claimed to have heard Daley say. All indications had been that the statement, which apparently came from Campbell, was said to have come from Daley, and it was that statement to which Daley (understandably) directed his defense.
[33] As noted, a prison inmate may have his due process rights "abridged to the extent necessary to accommodate the institutional needs and objectives of prisons." McDonald v. Pinchak, supra, 139 N.J. at 194. However, imprisonment does not mean that an inmate is bereft of constitutional rights or that he may be arbitrarily subjected to "grievous loss" without regard for due process. Avant v. Clifford, supra, 67 N.J. at 519.*fn2
[34] In Avant, the Court itemized and discussed sequentially the critical due process guarantees which must be afforded an inmate facing "grievous loss."*fn3 The first such requirement is "notice." As the Court said in Avant, both the holdings of the United States Supreme Court, see, e.g., Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), and the standards adopted by the Department itself require "that written notice . . . be given to the disciplinary action defendant in order to inform him of the charges and to enable him to marshal the facts and prepare a defense." Avant, supra, 67 N.J. at 525; see also Fisher v. Hundley, supra, 240 N.J. Super. at 158, (referring to the "Kafkaesque predicament of having to defend against evidence that was totally undisclosed"). In Fisher, this court reversed and remanded a disciplinary conviction in part because the vague notice to the appellant had misled him as to the actual charge against him.
[35] That basic notice requirement, essential if an accused is to have a reasonable opportunity to meet and defend against a charge, must specify as precisely as reasonably possible, just what the accused is said to have done. The requirement is explicitly recognized in the New Jersey Administrative Code, N.J.A.C. 10A:4-9.15(b)1ii, which provides that when the charge against the accused is based on the accusation of a CI, the accused is entitled to have "[T]he informant's statement . . . in language that is factual rather than a conclusion, . . . ."
[36] Here, that principle was clearly violated. We can see no reason why the charge against Daley could not have set out the language he is said to have used. Instead, he was charged with "planning of an assault" against Lt. Pascucci, and he was told the CI had heard him say, "he was planning an assault" on Lt. Pascucci. To the extent that he was given more precise information, the information was misleading and inaccurate. While he was told the CI had heard him say, "That Pascucci, if I ever get out, I'll get him. If I don't, I'll get someone else to do it," in fact the CI quoted Daley as saying only that he was not going to do anything until he got what he apparently wanted.
[37] That comment (on which the Department's entire case against Daley seems to be based) is, at best, ambiguous. The Department apparently contends that the words used represented an implicit or explicit expression of willingness to participate in a plot against Pascucci. But that is obviously a conclusion; it is not a "factual" statement of what appellant is alleged to have said.
[38] It may be that on proper notice to appellant, and after giving him a reasonable opportunity to meet the charge, the Department can prove its case and show that Daley's words did indeed demonstrate his participation in the plot charged. But that is not a foregone conclusion. Daley must be given an opportunity to argue or show the contrary. To exercise that right, he must be told what it is he is supposed to have said. Then, he may claim that he never made the statement, or he may acknowledge that he made the statement but argue that it does not mean what the Department says it means. He may also have some other explanation or defense. Whatever the case, he must be given a factual statement of what he is charged with--and not merely a broad allegation in conclusory language--and he must be given an opportunity to meet that charge. The Constitution and the controlling decisions of the courts of this State and the United States require nothing less.
[39] The matter is reversed and remanded to the Department for further proceedings consistent with this opinion.
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Opinion Footnotes
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[40] *fn1 The other inmate to whom Daley is said to have made these remarks was identified as Simon, who was also charged (with Campbell and Daley) with planning an attack on Pascucci. In a later portion of the Confidential Appendix, questions presented to the CI during a polygraph examination include one quoting Daley as saying, "me not going to orchestrate nothing until Mike give me the ganja."
[41] *fn2 Neither the court's discussion in Avant, nor our discussion here concerns "disciplinary response to minor infractions, sometimes called 'On-the-Spot-Correction' involving slight punishment such as verbal reprimand, temporary withdrawal of privileges or brief confinement to tier. . . ." As the Court stated in Avant," [w]e deal rather with disciplinary matters which may subject an individual to 'grievous loss' by way of punishment for serious misconduct. It is the prospect of such 'grievous loss' which quickens the right to constitutional due process by way of procedural protections." Id. at 518-19. Daley's sentence to a loss of 365 days commutation time would certainly constitute "grievous loss," and the Department does not argue the contrary.
[42] *fn3 Avant noted that in addition to minimal constitutional protections, the New Jersey Supreme Court also has broad supervisory review authority over administrative agencies such as the Department and has extended protections beyond "naked constitutional right" in order to "insure procedural fairness in the administrative process." Id. at 520.
Williams v. New Jersey Department of Corrections
| Year | 2000 |
|---|---|
| Cite | 749 A.2d 375 (NJ Super AD 2000) |
| Level | State Court of Appeals |
Williams v. Department of Corrections, 330 N.J.Super. 197, 330 N.J.Super. 197, 749 A.2d 375, 749 A.2d 375 (N.J.Super.App.Div. 04/18/2000)
[1] New Jersey Superior Court, Appellate Division
[2] No. A-1269-98T2
[3] 330 N.J.Super. 197, 330 N.J.Super. 197, 749 A.2d 375, 749 A.2d 375, 2000.NJ
[4] April 18, 2000
[5] EDWARD WILLIAMS,
PLAINTIFF-APPELLANT,
V.
DEPARTMENT OF CORRECTIONS,
DEFENDANT-RESPONDENT.
[6] Edward Williams, appellant pro se. John J. Farmer, Jr., Attorney General, attorney for respondent (Mary C. Jacobson, Assistant Attorney General, of counsel; Adriana M. Calderon, Deputy Attorney General, on the brief).
[7] Before Judges Stern, Kestin and Steinberg.
[8] The opinion of the court was delivered by: Steinberg, J.A.D.
[9] NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
[10] Submitted: February 24, 2000
[11] On appeal from the Department of Corrections.
[12] Edward Williams, an inmate at Bayside State Prison, appeals from three separate final decisions issued by the Department of Corrections (the Department) upholding the imposition of prison discipline. We affirm in part, and reverse in part.
[13] On April 10, 1998, at approximately 8:15 p.m., while patrolling the minimum complex grounds of Southern State Correctional Facility (SSCF), Corrections Officer Erricson smelled what he perceived to be a strong cannabis odor coming from the laundry area. He proceeded to investigate. He looked behind the laundry area and found Williams and two other inmates, David Hurst and Stephen Jones, sitting behind a fuel tank. The area in which the inmates were found is an unauthorized area after dark.
[14] According to Ericcson, as he approached the inmates, they attempted to leave. He observed Jones drop what he suspected to be a partially smoked marijuana cigarette. As a result, Ericcson charged Williams and Hurst with being in an unauthorized area, a violation of N.J.A.C. 10A:4- 4.1(a)*.402. *fn1 All three inmates were also ordered to provide urine samples.
[15] At his disciplinary hearing regarding the charge of being in an unauthorized area, Williams admitted being in the area but denied being aware that it was off limits after dark. The hearing officer found that since Williams had been in minimum custody status for six months, he should have known about the area restriction. Moreover, he concluded that the area is clearly marked out of bounds, and inmates are notified of this during their orientation. The hearing officer sanctioned Williams to five days detention, and referred him to the Institutional Classification Committee for its review of Williams's custody status. Williams appealed that determination to the Superintendent of SSCF, resulting in a minor modification of the sanctions imposed. Williams appeals that determination to this court.
[16] The laboratory test of Williams' urine sample concluded that he tested positive for cannabinoids. Accordingly, Williams was also charged with violating N.J.A.C. 10A:4-4.1(a)*.204, use of any narcotic paraphernalia, drugs or intoxicants not prescribed for the individual by the medical or dental staff. SSCF's records indicate Williams entered a plea of guilty to the charge and asked for leniency regarding his sanctions. The hearing officer found defendant guilty, and sanctioned him with 10 days detention, 180 days administrative segregation, and 270 days loss of commutation time. Again, Williams unsuccessfully appealed that determination to the Superintendent of SSCF who found that the hearing officer's decision was based upon substantial evidence. He upheld the sanctions imposed. Williams also appeals that determination to this court.
[17] Finally, based upon an internal affairs investigation at SSCF, Williams was charged with attempting to possess or introduce narcotic paraphernalia, drugs or intoxicants not prescribed for the inmate by the medical or dental staff, in violation of N.J.A.C. 10A:4- 4.1(a)*.803/*.203. The evidence presented to the hearing officer consisted of the findings of the internal affairs investigation. According to the Department, these documents were classified as confidential and could not be provided to Williams because they involved a continuing confidential investigation. Consequently, although the documents have been submitted to us on a confidential basis, neither Williams nor anyone on his behalf has had the opportunity to see them. The hearing officer reviewed the documents, found the evidence credible, and therefore, found Williams guilty. The hearing officer sanctioned Williams to 365 days loss of commutation time, 270 days administrative segregation, and 90 days of urine monitoring. Moreover, the sentences imposed for the violation of *803/*203 and *204 were deemed to run consecutively with one another. Williams appealed the hearing officer's disciplinary decision to the Superintendent of SSCF who found the decision was based upon substantial evidence, and upheld the sanctions imposed. Williams appeals that decision to this court, as well.
[18] On this appeal, Williams raises the following arguments: (1) regarding the charge of being in an unauthorized area, the hearing officer committed plain error by relying on non-factual information in determining his guilt and "supplying false information into the records"; (2) regarding the charge of use of non-prescribed drugs, "new evidence with respect to the urine results of co-defendants further conclude that the ordering of said defendant to void urinalysis was without sufficient probable cause"; and (3) regarding the charge of attempting to possess or introduce non-prescribed narcotic drugs, the hearing officer violated Williams's rights to due process by failing to comply with "N.J.A.C. pertaining to confidential information".
[19] We have carefully considered the record, the briefs filed, and the applicable law and conclude that Williams' first and second contentions are clearly without merit. The Department's decisions regarding those contentions are supported by sufficient credible evidence on the record as a whole. See R. 2:11-3(e)(1)(D); Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). We therefore affirm the findings on those charges, as well as the sanctions imposed.
[20] We consider defendant's third contention to be a challenge to the right of the Department to impose administrative sanctions upon him based upon the contents of a confidential report which has not been supplied to him. The challenge is directed to the charge regarding "the attempt to possess or introduce contraband" following the internal investigation. We recognize that prison disciplinary hearings are not criminal prosecutions and, accordingly, the full panoply of constitutional rights due a defendant in such proceedings does not apply. Avant v. Clifford, 67 N.J. 496, 522 (1975). Although prisoners are not entitled to the same level of due process rights as free persons, they are not entirely stripped of constitutional protections once they enter the prison. McDonald v. Pinchak, 139 N.J. 188, 194 (1995). However, prisoners are not entitled to the same due process rights as those guaranteed persons charged with the commission of a crime. Ibid. Accordingly, constitutional rights may be abridged to the extent necessary to accommodate the institutional needs and objectives of prisons. Ibid. Nevertheless, prisoners are entitled to procedural fairness, however informal, in the imposition of prison discipline. Ibid. Among these rights is a limited right to confront and cross- examine adverse witnesses. Id. at 529-30; N.J.A.C. 10A:4-9.14. Moreover, the inmate is entitled to a written statement of the evidence relied upon and the reasons for the sanctions imposed. Avant, supra, 67 N.J. at 533; N.J.A.C. 10A:4-9.15.
[21] The special procedural due process requirements articulated in Avant, have been recognized by the Department in the promulgation of a comprehensive set of regulations dealing with inmate discipline, N.J.A.C. 10A:4-1.1 to -11.9. Our Supreme Court has held that the current regulations strike the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due-process rights of the inmates. McDonald v. Pinchak, supra, 139 N.J. at 202.
[22] The Department has supplied us with an eleven-page "confidential appendix" which constitutes its investigation that led to the charge of attempting to import a controlled dangerous substance into the institution. We think it appropriate (and not a breach of confidence) to note that the report includes an opinion of a senior investigator, which, in our view, constitutes a bare net opinion concluding that Williams was attempting to introduce controlled dangerous substances to SSCF. Significantly, the report is silent as to how the senior investigator reached that conclusion.
[23] We recognize that our scope of review of an administrative determination is limited. We must determine "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record', considering 'the proofs as a whole', with due regard to the opportunity of the one who heard the witnesses to judge of their credibility *** and *** with due regard to the agency's expertise where such expertise is a pertinent factor". Mayflower Securities v. Bureau of Securities, 64 N.J. 85, 92-93 (1973) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). However, our application of that standard "requires far more than a perfunctory review". Mayflower Securities, supra, 64 N.J. at 93. We are constrained to engage in a "careful and principled consideration of the agency record and findings". Ibid. While our scope of review is limited, we cannot be relegated to a mere rubber-stamp of agency action. State - Operated School District of the City of Newark v. Gaines, 309 N.J. Super. 327, 332 (App. Div.), certif. denied, 156 N.J. 381 (1998); Chou v. Rutgers, 283 N.J. Super. 524, 539 (App. Div. 1995), certif. denied, 145 N.J. 374 (1996). Here, were we to accept the naked conclusion of the senior investigator, we would merely be rubber-stamping the Department's opinion, for it provides no real guidance to the conclusion it reached. That we cannot, and will not, do. Accordingly, we reverse the finding of guilt for attempting to import a controlled dangerous substance into SSCF.
[24] Although not necessary for our opinion in light of our conclusion that the confidential report includes no supporting facts, we also comment briefly regarding the Department's contention that there is a need for confidentiality of its investigative methods or techniques which precludes divulging the contents of the confidential investigation to Williams. We emphasize that we are not dealing with a need for limitation upon the right of confrontation or cross-examination in order to protect the safety or well-being of a confidential informant. In such a situation, we have little doubt that the need to protect confidentiality, when properly invoked, trumps a prisoner's right of confrontation and cross-examination when those rights would be "unduly hazardous to correctional facility safety or goals". McDonald v. Pinchak, supra, 139 N.J. at 197; N.J.A.C. 10A:4-9.14(b). Here, there is not the slightest hint that anyone's safety would be jeopardized by disclosure of the internal affairs report. Rather, the Department asserts that its ability to detect attempts or conspiracies to import controlled dangerous substances into an institution may be jeopardized by disclosure.
[25] We recognize the Department's concern and its significant interest in eliminating the importation of controlled dangerous substances in its penal institutions. However, we also recognize that an inmate must be afforded a reasonable opportunity to defend a disciplinary charge. A reasonable accommodation must be made between the Department's significant interests and the inmate's basic rights. A summary should be made of the report in order to accommodate both the Department and the inmate, accompanied by a sealing of such material as genuinely requires confidentiality, for disclosure only on further administrative or judicial appellate review.
[26] In cases where the sanction contemplated or imposed is the forfeiture of commutation time, which lengthens the time the inmate serves on his or her sentence, it is difficult to envision any legitimate interest that, in the light of the need for due process, would ever justify a total non-disclosure. Wakefield v. Pinchak, 289 N.J. Super. 566, 571 (App. Div. 1996). We need not decide today whether, and under what circumstances, a need for protection of confidential methods of investigation would outweigh the right of an inmate to a specification of the charge against him so that he can adequately prepare a defense where loss of commutation credits is involved. If that situation is presented, the Department may have to choose between maintaining the confidentiality of its methods of investigation for preventative purposes and not prosecuting. On the other hand, if a sanction of lesser significance than loss of commutation time is contemplated or imposed, the Department's interest in maintaining the confidentiality of its investigative technique may outweigh, and trump, the inmate's right to disclosure.
[27] Affirmed in part, and reversed in part.
--------------------------------------------------------------------------------
Opinion Footnotes
--------------------------------------------------------------------------------
[28] *fn1 Jones was charged with possession of narcotic paraphernalia, a violation of N.J.A.C. 10A:4-4.1(a)*.203.
[1] New Jersey Superior Court, Appellate Division
[2] No. A-1269-98T2
[3] 330 N.J.Super. 197, 330 N.J.Super. 197, 749 A.2d 375, 749 A.2d 375, 2000.NJ
[4] April 18, 2000
[5] EDWARD WILLIAMS,
PLAINTIFF-APPELLANT,
V.
DEPARTMENT OF CORRECTIONS,
DEFENDANT-RESPONDENT.
[6] Edward Williams, appellant pro se. John J. Farmer, Jr., Attorney General, attorney for respondent (Mary C. Jacobson, Assistant Attorney General, of counsel; Adriana M. Calderon, Deputy Attorney General, on the brief).
[7] Before Judges Stern, Kestin and Steinberg.
[8] The opinion of the court was delivered by: Steinberg, J.A.D.
[9] NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
[10] Submitted: February 24, 2000
[11] On appeal from the Department of Corrections.
[12] Edward Williams, an inmate at Bayside State Prison, appeals from three separate final decisions issued by the Department of Corrections (the Department) upholding the imposition of prison discipline. We affirm in part, and reverse in part.
[13] On April 10, 1998, at approximately 8:15 p.m., while patrolling the minimum complex grounds of Southern State Correctional Facility (SSCF), Corrections Officer Erricson smelled what he perceived to be a strong cannabis odor coming from the laundry area. He proceeded to investigate. He looked behind the laundry area and found Williams and two other inmates, David Hurst and Stephen Jones, sitting behind a fuel tank. The area in which the inmates were found is an unauthorized area after dark.
[14] According to Ericcson, as he approached the inmates, they attempted to leave. He observed Jones drop what he suspected to be a partially smoked marijuana cigarette. As a result, Ericcson charged Williams and Hurst with being in an unauthorized area, a violation of N.J.A.C. 10A:4- 4.1(a)*.402. *fn1 All three inmates were also ordered to provide urine samples.
[15] At his disciplinary hearing regarding the charge of being in an unauthorized area, Williams admitted being in the area but denied being aware that it was off limits after dark. The hearing officer found that since Williams had been in minimum custody status for six months, he should have known about the area restriction. Moreover, he concluded that the area is clearly marked out of bounds, and inmates are notified of this during their orientation. The hearing officer sanctioned Williams to five days detention, and referred him to the Institutional Classification Committee for its review of Williams's custody status. Williams appealed that determination to the Superintendent of SSCF, resulting in a minor modification of the sanctions imposed. Williams appeals that determination to this court.
[16] The laboratory test of Williams' urine sample concluded that he tested positive for cannabinoids. Accordingly, Williams was also charged with violating N.J.A.C. 10A:4-4.1(a)*.204, use of any narcotic paraphernalia, drugs or intoxicants not prescribed for the individual by the medical or dental staff. SSCF's records indicate Williams entered a plea of guilty to the charge and asked for leniency regarding his sanctions. The hearing officer found defendant guilty, and sanctioned him with 10 days detention, 180 days administrative segregation, and 270 days loss of commutation time. Again, Williams unsuccessfully appealed that determination to the Superintendent of SSCF who found that the hearing officer's decision was based upon substantial evidence. He upheld the sanctions imposed. Williams also appeals that determination to this court.
[17] Finally, based upon an internal affairs investigation at SSCF, Williams was charged with attempting to possess or introduce narcotic paraphernalia, drugs or intoxicants not prescribed for the inmate by the medical or dental staff, in violation of N.J.A.C. 10A:4- 4.1(a)*.803/*.203. The evidence presented to the hearing officer consisted of the findings of the internal affairs investigation. According to the Department, these documents were classified as confidential and could not be provided to Williams because they involved a continuing confidential investigation. Consequently, although the documents have been submitted to us on a confidential basis, neither Williams nor anyone on his behalf has had the opportunity to see them. The hearing officer reviewed the documents, found the evidence credible, and therefore, found Williams guilty. The hearing officer sanctioned Williams to 365 days loss of commutation time, 270 days administrative segregation, and 90 days of urine monitoring. Moreover, the sentences imposed for the violation of *803/*203 and *204 were deemed to run consecutively with one another. Williams appealed the hearing officer's disciplinary decision to the Superintendent of SSCF who found the decision was based upon substantial evidence, and upheld the sanctions imposed. Williams appeals that decision to this court, as well.
[18] On this appeal, Williams raises the following arguments: (1) regarding the charge of being in an unauthorized area, the hearing officer committed plain error by relying on non-factual information in determining his guilt and "supplying false information into the records"; (2) regarding the charge of use of non-prescribed drugs, "new evidence with respect to the urine results of co-defendants further conclude that the ordering of said defendant to void urinalysis was without sufficient probable cause"; and (3) regarding the charge of attempting to possess or introduce non-prescribed narcotic drugs, the hearing officer violated Williams's rights to due process by failing to comply with "N.J.A.C. pertaining to confidential information".
[19] We have carefully considered the record, the briefs filed, and the applicable law and conclude that Williams' first and second contentions are clearly without merit. The Department's decisions regarding those contentions are supported by sufficient credible evidence on the record as a whole. See R. 2:11-3(e)(1)(D); Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). We therefore affirm the findings on those charges, as well as the sanctions imposed.
[20] We consider defendant's third contention to be a challenge to the right of the Department to impose administrative sanctions upon him based upon the contents of a confidential report which has not been supplied to him. The challenge is directed to the charge regarding "the attempt to possess or introduce contraband" following the internal investigation. We recognize that prison disciplinary hearings are not criminal prosecutions and, accordingly, the full panoply of constitutional rights due a defendant in such proceedings does not apply. Avant v. Clifford, 67 N.J. 496, 522 (1975). Although prisoners are not entitled to the same level of due process rights as free persons, they are not entirely stripped of constitutional protections once they enter the prison. McDonald v. Pinchak, 139 N.J. 188, 194 (1995). However, prisoners are not entitled to the same due process rights as those guaranteed persons charged with the commission of a crime. Ibid. Accordingly, constitutional rights may be abridged to the extent necessary to accommodate the institutional needs and objectives of prisons. Ibid. Nevertheless, prisoners are entitled to procedural fairness, however informal, in the imposition of prison discipline. Ibid. Among these rights is a limited right to confront and cross- examine adverse witnesses. Id. at 529-30; N.J.A.C. 10A:4-9.14. Moreover, the inmate is entitled to a written statement of the evidence relied upon and the reasons for the sanctions imposed. Avant, supra, 67 N.J. at 533; N.J.A.C. 10A:4-9.15.
[21] The special procedural due process requirements articulated in Avant, have been recognized by the Department in the promulgation of a comprehensive set of regulations dealing with inmate discipline, N.J.A.C. 10A:4-1.1 to -11.9. Our Supreme Court has held that the current regulations strike the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due-process rights of the inmates. McDonald v. Pinchak, supra, 139 N.J. at 202.
[22] The Department has supplied us with an eleven-page "confidential appendix" which constitutes its investigation that led to the charge of attempting to import a controlled dangerous substance into the institution. We think it appropriate (and not a breach of confidence) to note that the report includes an opinion of a senior investigator, which, in our view, constitutes a bare net opinion concluding that Williams was attempting to introduce controlled dangerous substances to SSCF. Significantly, the report is silent as to how the senior investigator reached that conclusion.
[23] We recognize that our scope of review of an administrative determination is limited. We must determine "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record', considering 'the proofs as a whole', with due regard to the opportunity of the one who heard the witnesses to judge of their credibility *** and *** with due regard to the agency's expertise where such expertise is a pertinent factor". Mayflower Securities v. Bureau of Securities, 64 N.J. 85, 92-93 (1973) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). However, our application of that standard "requires far more than a perfunctory review". Mayflower Securities, supra, 64 N.J. at 93. We are constrained to engage in a "careful and principled consideration of the agency record and findings". Ibid. While our scope of review is limited, we cannot be relegated to a mere rubber-stamp of agency action. State - Operated School District of the City of Newark v. Gaines, 309 N.J. Super. 327, 332 (App. Div.), certif. denied, 156 N.J. 381 (1998); Chou v. Rutgers, 283 N.J. Super. 524, 539 (App. Div. 1995), certif. denied, 145 N.J. 374 (1996). Here, were we to accept the naked conclusion of the senior investigator, we would merely be rubber-stamping the Department's opinion, for it provides no real guidance to the conclusion it reached. That we cannot, and will not, do. Accordingly, we reverse the finding of guilt for attempting to import a controlled dangerous substance into SSCF.
[24] Although not necessary for our opinion in light of our conclusion that the confidential report includes no supporting facts, we also comment briefly regarding the Department's contention that there is a need for confidentiality of its investigative methods or techniques which precludes divulging the contents of the confidential investigation to Williams. We emphasize that we are not dealing with a need for limitation upon the right of confrontation or cross-examination in order to protect the safety or well-being of a confidential informant. In such a situation, we have little doubt that the need to protect confidentiality, when properly invoked, trumps a prisoner's right of confrontation and cross-examination when those rights would be "unduly hazardous to correctional facility safety or goals". McDonald v. Pinchak, supra, 139 N.J. at 197; N.J.A.C. 10A:4-9.14(b). Here, there is not the slightest hint that anyone's safety would be jeopardized by disclosure of the internal affairs report. Rather, the Department asserts that its ability to detect attempts or conspiracies to import controlled dangerous substances into an institution may be jeopardized by disclosure.
[25] We recognize the Department's concern and its significant interest in eliminating the importation of controlled dangerous substances in its penal institutions. However, we also recognize that an inmate must be afforded a reasonable opportunity to defend a disciplinary charge. A reasonable accommodation must be made between the Department's significant interests and the inmate's basic rights. A summary should be made of the report in order to accommodate both the Department and the inmate, accompanied by a sealing of such material as genuinely requires confidentiality, for disclosure only on further administrative or judicial appellate review.
[26] In cases where the sanction contemplated or imposed is the forfeiture of commutation time, which lengthens the time the inmate serves on his or her sentence, it is difficult to envision any legitimate interest that, in the light of the need for due process, would ever justify a total non-disclosure. Wakefield v. Pinchak, 289 N.J. Super. 566, 571 (App. Div. 1996). We need not decide today whether, and under what circumstances, a need for protection of confidential methods of investigation would outweigh the right of an inmate to a specification of the charge against him so that he can adequately prepare a defense where loss of commutation credits is involved. If that situation is presented, the Department may have to choose between maintaining the confidentiality of its methods of investigation for preventative purposes and not prosecuting. On the other hand, if a sanction of lesser significance than loss of commutation time is contemplated or imposed, the Department's interest in maintaining the confidentiality of its investigative technique may outweigh, and trump, the inmate's right to disclosure.
[27] Affirmed in part, and reversed in part.
--------------------------------------------------------------------------------
Opinion Footnotes
--------------------------------------------------------------------------------
[28] *fn1 Jones was charged with possession of narcotic paraphernalia, a violation of N.J.A.C. 10A:4-4.1(a)*.203.