On certification to the Superior Court, Appellate Division.
The opinion of the Court was delivered by Garibaldi, J. Chief Justice Wilentz and Justices Handler And Pollock join in the Justice GARIBALDI's opinion. Justice Stein has filed a separate Dissenting opinion. Justices O'hern and Coleman did not participate. Stein, J. Dissenting.
The opinion of the court was delivered by GARIBALDI, J.
In this appeal, as in McDonald v. Pinchak, N.J. (1994), also decided today, Al-Tariq Jacobs, 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, Jacobs asserts that the hearing officer failed to adhere to the Department of Corrections' own regulations that the inmate shall have twenty-four hours to prepare a defense. He also asserts that the hearing officer violated N.J.A.C. 10A:4-9.13(a), which provides that inmates shall be allowed to call witnesses and present documentary evidence, and N.J.A.C. 10A:4-9.14a which provides that inmates shall, if they request, have the opportunity to confront and cross-examine witnesses. As in McDonald, supra, the hearing officer asserts that Jacobs never asserted the right to call witnesses or to confront and cross-examine adverse witnesses. Jacobs also alleges that the evidence was insufficient to support the hearing officer's finding of guilt.
As in McDonald, we reaffirm the standards set forth in Avant v. Clifford, 67 N.J. 496, 341 A.2d 629 (1975), and in the Department of Corrections (DOC) regulations, but we modify some of DOC's disciplinary hearing practices to ensure further that DOC properly implements the standards announced in Avant and its own regulations, and fairly conducts disciplinary hearings.
Inmate Jacobs was charged with "threatening another with bodily harm" in an argument with a prison guard, in violation of N.J.A.C. 10A:4-4.1(a)*005.
At about 2:00 p.m. on September 14, 1992, Jacobs asked to leave his cell block to attend a meeting of the Prison Representative Committee (PRC). A few minutes later, Corrections Officer Hawkins announced an inmate count and refused to permit Jacobs to go to the PRC meeting, instead ordering him to return to his cell. Jacobs yelled profanities at Hawkins. Hawkins asked Jacobs for his identification card, and Jacobs responded, "Fuck you, I ain't giving you shit. If you want my I.D., step in the back room." Hawkins immediately notified his superiors, charged Jacobs with "threatening another with bodily harm," and placed Jacobs in pre-hearing detention. Corrections Officer Wallace described the incident a bit differently in a special report. According to Wallace, Jacobs said that his I.D. was "in the back room" and as Officer Hawkins turned to walk away, Jacobs stated, "come on, come on I'll fuck you up."
Sgt. Idlett delivered a copy of the disciplinary report regarding the charge to Jacobs at 10:30 a.m. on September 15, 1992. An investigation of the charge conducted the same day revealed two inmate witnesses who provided evidence that supported the charge against Jacobs. The hearing then occurred twenty-two-and-one-half hours later, at 8:55 a.m. on September 16, 1992. Hearing Officer Arthur Saltzman conducted the proceeding. The hearing officer claims he did not realize that the hearing should have been held one-and-one-half hours later. He observed, however, that he had asked whether Jacobs was ready to proceed, and neither Jacobs nor his counsel substitute had requested more time.
The one-page hearing report indicates Jacobs's defense was that "I may have used abusive language but I didn't threaten him." The hearing officer found Jacobs guilty and sanctioned Jacobs to fifteen days detention, 180 days loss of commutation time, and 180 days administrative segregation. The hearing report states that the reason for the sanction was that "the officer who wrote charge perceived the situation as a threat. In mitigation, there is [sic] some inconsistencies in what actually was said . . . ."
An Assistant Superintendent of Corrections upheld the hearing officer's decision, stating "the charge and special report related a definite threat." The Administrator of Northern State Prison upheld the assistant superintendent's decision. Jacobs appealed and the Appellate Division summarily affirmed, stating that "as the decision of the Prison Administrator was based upon substantial credible evidence in the record, the decision is within his jurisdiction and is not arbitrary, capricious or unreasonable, [and] it is entitled to affirmance by this court." We granted Jacobs's petition for certification, N.J. (1993).
Jacobs correctly asserts that his hearing, held only twenty-two-and-one-half hours after receipt of written notice, was in violation of the regulation that inmates shall have twenty-four hours between receipt of written notice and hearing to prepare a defense. He further asserts that that infraction violated both his constitutional due-process rights and administrative fairness.
Federal and state laws governing the due-process claims of prisoners have evolved considerably over the last twenty years. See McDonald, supra, N.J. at - (slip op. at 4 to 11). In 1974, the United States Supreme Court set forth the minimal federal due-process requirements for prison disciplinary hearings. In Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), the Court held that Nebraska's provision permitting prison officials to give inmates oral notice of charges only at the time of a disciplinary hearing violated the Fourteenth Amendment. Id. at 565, 94 S. Ct. at 2, , 41 L. Ed. 2d at 955-56. The Court ruled that written notice must be given to an inmate charged with a violation "to inform him of the charges and to enable him to marshall the facts and prepare a defense." Id. at 956. The Court stated, "At least a brief period of time after the notice, no less than twenty-four hours, should be allowed to the inmate to prepare for the appearance before the Adjustment Committee." Ibid.
After Wolff, New Jersey adopted the twenty-four-hour standard in nearly verbatim form: "no less than twenty-four hours should be allowed to the inmate to prepare for the appearance before the Adjustment Committee." Avant, supra, 67 N.J. at 525. We upheld the standard as satisfying both federal and state constitutional mandates even though it was quasi-mandatory ("no less than") and quasi-discretionary ("should"). See ibid. Subsequent to Avant, the twenty-four-hour rule was amended. N.J.A.C. 10A:4-9.2 now provides that "the disciplinary report shall be served upon the inmate within 48 hours after the violation . . . [and the] inmate shall have 24 hours to prepare his/her defense."
No one disputes that the disciplinary hearing on Jacobs's charge commenced at 8:55 a.m. on September 16, 1992, approximately one-and-one-half hours prior to the expiration of the required twenty-four hour period. In his affidavit, the hearing officer stated he did not realize that the hearing should have commenced at 10:30 a.m. He also claimed that neither Jacobs nor the counsel substitute appointed at Jacobs's request told him that slightly less than twenty-four hours had passed since Jacobs had received notice of the charge. The hearing officer also stated that he routinely asks inmates and their counsel substitutes whether they are ready to proceed with a disciplinary hearing. On the occasions when inmates or counsel substitutes indicate that they are not prepared to go forward with the proceeding, the hearing officer postpones the hearing and makes a notation of his decision on the adjudication form. He asserted that neither Jacobs nor counsel substitute had asked for more time for preparation. He claimed that if such a request had been made, he would have granted it.
Deviation from the twenty-four-hour rule, a short period of time to begin with, should be permitted only in extreme circumstances. Such deviation may prejudice a defendant-inmate and is not acceptable under the governing law. Simple neglect by the hearing officer to ensure compliance with that regulation usually will not constitute such an extreme circumstance. Nor will the fact that neither the inmate nor his counsel substitute made a request to postpone the hearing, or asked for any additional time to prepare for the disciplinary proceeding, constitute such a circumstance. Nevertheless, overwhelming evidence supports the hearing officer's determination that Jacobs threatened Officer Hawkins, infra at - (slip op. at 10-12). Under those circumstances, we find that DOC's error in commencing Jacobs' disciplinary hearing one-and-one-half hours before the required twenty-four hours was harmless and did not prejudice him.
A harmless-error analysis is applied typically to a "denial of rights accorded to defendants to facilitate their defense." Johnstone v. Kelly, 808 F.2d 214, 218 (2d Cir. 1986); Chapman v. United States, 553 F.2d 886, 891 (5th Cir. 1977); United States v. Dougherty 154 U.S. App. D.C. 76, 473 F.2d 1113, 1127 (D.C. Cir. 1972). Harmless error may not be applied to rights that are essential to the fundamental fairness of a trial, like self-representation. Ibid.; e.g. Gideon v. Wainwright 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); accord Giano v. Sullivan, 709 F. Supp. 1209, 1217 (S.D.N.Y. 1989)(finding that harmless error could not be applied to inmate's disciplinary hearing, which resulted in a special, five-year ...