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McDonald v. Pinchak

Decided: January 25, 1995; September Term 1994.


On certification to the Superior Court, Appellate Division.

Chief Justice Wilentz and Justices Handler and Pollock join in Justice GARIBALDI's opinion. Justice Stein has filed a separate Concurring and Dissenting opinion. Justices O'hern and Coleman did not participate.


The opinion of the court was delivered by GARIBALDI, J.

In this appeal, as in Jacobs v. Stephens, N.J. (1994), also decided today, Gallimore McDonald, an inmate in a New Jersey State prison, contends that state action taken at his disciplinary hearing violated procedural due process and the "fairness and rightness" standard of New Jersey. Specifically, McDonald asserts that the investigating officer and the hearing officer failed to adhere to the Department of Corrections' own regulations by refusing his request both to call witnesses and to present evidence, and to confront and to cross-examine witnesses. The hearing officer, however, asserts that McDonald never asserted the right to call witnesses or to confront and to cross-examine witnesses. McDonald also alleges that the record contains insufficient evidence for the hearing officer's finding of guilt.

In our decision today, we reaffirm the standards set forth in Avant v. Clifford, 67 N.J. 496, 341 A.2d 629 (1975), and in the Department of Correction (DOC) regulations promulgated in response thereto. However, we clarify and modify some of DOC'S disciplinary-hearing practices to ensure further that DOC properly implements both the standards that we announced in Avant and the DOC's own regulations, and also conduct disciplinary hearings fairly. We do not require that disciplinary hearings be tape-recorded.


Inmate McDonald was charged with assaulting a person with a weapon, in violation of N.J.A.C. 10A-4-4.1(a)*003.

At 6:00 p.m. on September 4, 1992, during family day at the East Jersey State Prison visit hall, Corrections Lt. Robert Connell reported seeing McDonald twice lift a chair over his head and then swing it in a downward motion. Although the visitors' hall was crowded and Lt. Connell could not identify whom McDonald struck, Lt. Connell reported that he heard the chair striking flesh. Lt. Connell then yelled "fight" and moved toward the area with other officers. Lt. Connell took the chair out of McDonald's hands, escorted him out of the crowd, handcuffed him, and charged him with assault with a weapon. Corrections Officer Wadley also filed charges against McDonald, identifying inmate Smith as McDonald's victim. The hearing officer dismissed Officer Wadley's charges as "repetitive" of Lt. Connell's charges.

At the hearing, McDonald, assisted by a counsel substitute, denied that he had committed the assault. Instead, he claimed that inmate Spivey had struck him with a chair in the back of the head and that he had taken the chair from Spivey to defend himself. The record includes a hospital report indicating that McDonald was treated for a three-quarter inch superficial laceration on his head, but does not include any medical report for inmate Smith, McDonald's alleged victim. In support of the hearing officer's determination and the institutional denial of McDonald's appeal, however, Superintendent Pinchak claims that the nurse's report supports the Conclusion that McDonald had been involved in a fight.

The only record of the disciplinary hearing is a one-page report. In the space for inmate or counsel substitute's statement, the following summary of McDonald's defense appears: "I was assaulted first. I grabbed the chair. I didn't have a chance to use it. Smith was not involved. C/S [counsel substitute] states McDonald was the only victim." The report indicates that inmate-witness Lamb stated, "I ain't got nothing to say." The form had boxes for whether confrontation and cross-examination were requested and granted or denied, and lines for the testimony or reason for denial. No boxes were checked and "Not requested" was written on the lines.

McDonald, however, alleges that he did request the investigating officer to interview inmate witnesses Smith, Spivey, Lamb, Miller, and Williams. According to McDonald, the hearing officer informed McDonald that the witnesses had refused to comment. Superintendent Pinchak denies any knowledge of witnesses other than Lamb, noting that McDonald did not identify other witnesses.

The complaining officers did not testify. The hearing officer found McDonald guilty and imposed sanctions "to maintain order in visit area and deter injuries between inmates." The hearing officer based his determination of guilt on Lt. Connell's report. McDonald received fifteen days detention, 180 days loss of commutation credits, 180 days administrative segregation from inmates Spivey and Smith, and 365 days loss of visitation privileges. Both the assistant superintendent of the prison and the Appellate Division denied McDonald's appeals. We granted McDonald's petition for certification, N.J. (1994)


In 1974, the United States Supreme Court established minimum federal procedural due-process requirements for prison disciplinary proceedings in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). It stated "There is no iron curtain drawn between the Constitution and the prisons of this country." Id. at 555-56, 94 S. Ct. at 2974, 41 L. Ed. 2d at 950. Although prisoners are not entitled to the same level of due-process rights as free persons, they are not "wholly stripped of constitutional protections." Id. at 555, 94 S. Ct. at 2974, 41 L. Ed. 2d at 950. However, the due-process rights of convicted persons serving time behind bars are not the same as those for persons merely charged with a crime. Id. at 556, 94 S. Ct. at , 41 L. Ed. 2d at 951. Under the Fourteenth Amendment, constitutional rights are abridged to the extent necessary to accommodate the institutional needs and objectives of prisons. Ibid.

In New Jersey, the administrative rules and regulations that govern the fulfillment of due-process rights for prisoners are balanced against the needs and objectives of the prison. In Avant, we stated:

It must be remembered that prisons and correctional institutions are not quiet monasteries. Their security and order are peculiarly dependent upon a system of swift, stern, unmistakable and yet fair disciplinary Justice. That measure of control is as important to protecting the right to safety of the peaceful inmate population as to that of the correctional staff inside and the public outside.

[67 N.J. at 561 (footnote omitted).]

Indeed, the daily interaction between inmates and prison officials can create a tense environment that requires special measures to ensure safety. Swift and certain punishment is one tool prison officials use to maintain order and discourage future misconduct by a perpetrator. Thus, a court must weigh any expansion or refinement of long-established due-process rights of prisoners against the safety of all the prisoners and of the corrections staff.

Despite the need to avoid aggravation of the already high level of confrontation inherent in a prison setting and to maintain personal security within the system, the United States Supreme Court in Wolff held that inmates are entitled to certain protections. 418 U.S. at 556, 94 S. Ct. at , 41 L. Ed. 2d at 951. At a minimum, the United States Constitution requires that an inmate facing disciplinary charges receive: (1) a written notice of the alleged violation; (2) a written statement of the evidence relied on and the reasons for the disciplinary action taken; (3) a right to call witnesses and a right to present documentary evidence, when doing so would not be unduly hazardous to institutional safety or correctional goals; and (4) a right to assistance from a counsel substitute where the inmate is illiterate or the issues too complex for the inmate to marshal an adequate defense. Id. at 563-70, 94 S. Ct. at , 41 L. Ed. 2d at 955-59.

One year after Wolff, this Court decided Avant and extended State due-process guarantees beyond the federal constitutional minimum. See 67 N.J. at 520. To protect an inmate's interest, we held that DOC must structure an informal hearing to "'assure that the [disciplinary] finding * * * will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the * * * [inmate's] behavior.'" Id. at 523 (quoting Morrissey v. Brewer, 408 U.S. 471, 485, 92 S. Ct. 2593, 2601-02, 33 L. Ed. 2d 484, 496 (1972) (omissions in original)). The hearing may be informal, but the procedures must determine the factual accuracy of the charges.

Although McDonald alleges that inmates are routinely found guilty of disciplinary infractions, the facts reveal the contrary. For example, the Chief Hearing Officer of DOC submitted an affidavit showing that of the 33,914 major violations presented to the hearing officers for adjudication in 1993, 23,770 (70%) had been adjudicated guilty; 4,057 (12%) had been adjudicated not guilty; 5,659 (16%) had been downgraded by the hearing officer to an on-the-spot correction (minor disciplinary infraction); and 428 had been dismissed on due-process grounds. 2,216 disciplinary charges were referred by hearing officers back to the prison staff for further information. Moreover, a hearing officer is only one of several people involved in the pre-hearing process; an investigating officer who was not involved in the incident is appointed by the Superintendent to interview the inmate, his witnesses, and reporting staff members and to report directly to the hearing officer in charge of each case. N.J.A.C. 10A:4-9.5. Thus, some charges never reach the hearing stage because an investigating officer who thinks a charge is frivolous may halt the disciplinary process. Hearing officers therefore do not merely "rubber stamp" officers' charges, but make a good-faith effort to adjudicate charges fairly and impose appropriate sanctions.

In addition, hearing officers are employed by DOC, not by the individual prison. They are rotated among the prisons. They report directly to the Commissioner's office and not to any ...

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