by Harold Hempstead

On July 17, 2021, the Supreme Court of Connecticut held that when the state Department of Corrections (DOC) classified him as a sex offender despite not having a conviction on a sex offense, a state prisoner was denied his rights to procedural and substantive due process under both the state and federal constitutions.

In July 2011, the petitioner, Anthony A., and his former wife, M., were drinking and smoking crack cocaine, when he became paranoid and delusional, accusing her of having sex with other men and searching her home for evidence. He allegedly fingered her vagina and anus to look for condoms.

M. called police, who found the house in “shambles” and M.’s arms and face with bruises. She told them A. had physically and sexually assaulted her, which he also generally admitted. He was charged with sexual assault in a spousal relationship.

When M. later recanted, the state entered a nolle prosequi on the charge, and A. “thereafter pleaded guilty to unlawful restraint in the first degree, failure to appear and violation of probation,” the Court later recalled. He was sentenced to three years and six months in DOC.

During the DOC classification process, he was assigned a sex treatment need (STN) score of 3, which the agency’s Objective Classification Manual (OCM) says is assigned to prisoners who “have a current conviction, pending charge or known history of sexual offenses involving physical contact with the victim(s)” § III (D)(6), p.36.

To make this determination, OCM allows “information from charges which were nolled, acquitted, dismissed, withdrawn or dropped” Id. § III (A), p.5. However, “a hearing is required before an STN score can be assigned based on ‘non-conviction information.’ Id., § III (D)(6), p.36.”

With his high score, A. was given an Offender Accountability Plan (OAP) that recommended participation in “sex treatment” and warned that failure to do so would “negatively impact” his ability to earn good-time credit and get parole. The high score also meant he was assigned to a prison where he was unable to participate in programming for veterans for which he was otherwise qualified.

After several unsuccessful appeals of his STN 3 score, he filed for a writ of habeas corpus in Superior Court for the Tolland Judicial District, contending that he was incorrectly classified as a sex offender without due process of law. That court disagreed, but the state Appellate Court reversed the lower court’s decision, concluding A. had a protected liberty interest in not being wrongly classified as a sex offender, a decision the state Supreme Court affirmed. See: Anthony A. v. Comm’r of Corr., 326 Conn. 668 (2017).

While his petition was in Appellate Court, though, A. was released from prison and arrested on new charges. Returning to DOC, he was scheduled for another hearing to determine his STN score based on his original nolled arrest for sexually assaulting M.

A hearing officer, Elizabeth Tugie, granted his requests “to argue on his own behalf and to present documentary evidence” but declined to allow any “live witness testimony,” citing “institutional safety concerns.” His request to be represented by counsel was also denied because the classification proceeding was “not intended to be adversarial.”

After the hearing, Tugie notified A. that she had reviewed his July 2011 arrest record and his complete Connecticut criminal record and decided to assign an STN score of 3. Tugie also said her supervisor, David Maiga, reviewed and approved the score. A. appealed, but Tugie and Maiga “denied the appeal after discussing it for approximately ‘thirty seconds,’” the Court later recounted from his complaint.

Aided this time by attorney Vishal K. Garg of West Hartford, Connecticut, A. again filed for habeas relief from the superior court. Again he was denied, bringing the case on appeal to the state Supreme Court.

Taking it up then, the Court conceded that A.’s classification hearing “afforded some of the procedural protections required by Wolff v. McDonnell,” 418 U.S. 539 (1974). But not all.

First, he was not provided “an opportunity to call witnesses in his defense,” and DOC denied the request “without knowing who the witnesses were or what they would say, or considering whether their presence would be ‘unduly hazardous to institutional safety or correctional goals…’” in violation of Wolff.

Second, he was not given “adequate notice of the information to be relied on in determining his classification.” Tugie testified at the habeas court “that, after the classification hearing had concluded, she conducted additional research into the petitioner’s criminal record” and “that she never notified the petitioner that the facts of his past arrests would be used against him.” This was wrong, the Court explained, because Wolff entitled A. to this information “so as to allow him ‘a chance to marshal the facts in his defense.’”

Third, the Court said, A. was entitled to “an impartial decision maker to rule on his appeal.” But “Tugie and Maiga were not impartial decision makers when they ruled on the petitioner’s appeal from their own initial classification decision.” Rather, “the due process principle of fairness required that a different decision maker decide the merits of that appeal,” as provided in Withrow v. Larkin, 421 U.S. 35 (1975).

Finally, though allowing that DOC’s procedures “do not come close to shocking the conscience” as in Waldman v. Conway, 871 F.3d. 1283 (11^th Cir. 2017), the Court concluded that A.’s sex offender classification violated article first, § 9 of the Connecticut Constitution because he was not afforded the process due under Wolff prior to receiving that classification.

Thus the lower court’s decision was vacated and the case remanded with instruction to issue a writ of habeas corpus and to direct DOC to expunge A.’s STN 3 score. See: Anthony A. v. Comm’r of Corr., 339 Conn. 290 (2021). 

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