On appeal from the Department of Corrections.
Before Judges King, Lisa and Fuentes.
The opinion of the court was delivered by: King, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Appellant George Bender is currently incarcerated at the Adult Diagnostic and Treatment Center (ADTC) in Avenel, Middlesex County. He appeals from a final agency decision of the Department of Corrections (DOC) which deprived him of commutation ("good time") and work credits for his failure to participate in or fully cooperate with the sex offenders' treatment program (SOTP) as required by N.J.S.A. 2C:47-4.1 and 2C:47-8. Among other contentions, he claims that the treatment program compels his self-incrimination in violation of the Fifth Amendment of the Federal Constitution. Because the treatment program may require an inmate to disclose information about crimes for which he may be prosecuted, upon penalty of loss of institutional credits for good time and work, we find that the statutory scheme invades a "liberty interest" protected by the Federal Constitution. This loss of otherwise available credits against his sentence, leading to a longer prison term, is a form of compulsory self-incrimination which does not survive federal constitutional scrutiny. Without providing some type of use immunity, the State cannot compel incriminating disclosures at the expense of loss of freedom through a longer prison term. See McKune v. Lile, 536 U.S. __, 153 L.Ed.2d 47 (2002).
On May 10, 1996 appellant was convicted of two counts of first-degree aggravated sexual assault and two counts of sexual assault for engaging in sexual acts with juveniles, age twelve to sixteen, see N.J.S.A. 2C:14-2. He was declared eligible for the specialized treatment program at the ADTC. N.J.S.A. 2C:47- 1. His sentence imposed on May 10, 1996 was a thirty-year base term with a fifteen-year mandatory minimum. Thereafter, he allegedly failed to cooperate with the treatment program, which he is claimed to have attended irregularly. As a result, the Institutional Classification Committee (ICC) imposed a "loss of appropriate commutation time and work credits against the time of his prison term," per N.J.S.A. 2C:47-8. Bender then appealed the loss of these credits to William F. Plantier, the ADTC Administrator. On December 1, 1998 Plantier rejected his appeal, stating: "Your November 21, 1998 request for return of all credits lost by your failure to fully participate in the therapy program is denied."
Bender then filed an appeal with this court and a motion to proceed as an indigent. He claimed that Plantier's decision denying him his commutation and work credits was contrary to his "procedural due process right [resulting] in loss of [a] liberty interest." On March 2, 2000 the DOC filed a motion for a remand to provide further administrative review of the due process claims. We granted this remand motion on March 28, 2000.
The DOC then established a uniform procedure at the ADTC for the loss of commutation and work credits for inmates who fail to fully cooperate with treatment, effective April 1, 2000. The policy provided for notice and a hearing before the ICC. The inmate would have the opportunity to appear at the hearing with counsel-substitute, if requested. The policy also provided that the inmate could appeal the decision of the ICC in writing to the Administrator of the ADTC.
On April 28, 2000 the ADTC administration advised Classification Officer Ferro that Bender was scheduled for the next ICC meeting to address the remand. Bender was provided with notice the ICC would consider his loss of good time credits at a hearing on May 3, 2000. He was informed he could be present and heard with counsel-substitute. Bender asked for assistance by counsel-substitute, Edward Walker.
At the hearing, the ICC reviewed with Bender and Walker the reason for the hearing, the nature of the proceeding, and Bender's failure to participate in treatment. The ICC reviewed Bender's treatment record which revealed he attended one group therapy session in his first six months at ADTC and less than 50% of his therapy sessions during his second six months.
At the hearing Bender did not present evidence to refute his poor attendance record. Walker admitted Bender was not fully participating in the treatment. Walker stated that Bender believed "he should not have been discredited for not participating in therapy because the treatment service staff was not licensed." On May 4, 2000 Bender was given a notice approving the loss of commutation and work credits because he failed to sufficiently participate in treatment with less than 100% attendance. He was told he could appeal the decision of the ICC to the Administrator. On May 5, 2000 Bender appealed the decision to Acting Administrator Rogers who upheld the decision, stating that Bender provided her with no basis for reversal of the ICC's decision.
Bender filed a motion to return the proceedings to this court on May 30, 2000. The DOC did not oppose Bender's motion.
We had initially considered the matter in the Fall of 2001 but decided to invite the Office of the Public Defender to appear for the pro se appellant on the Fifth Amendment self- incrimination claim. The Public Defender now has briefed and argued that issue. We reconsidered the matter in October 2002.
Bender raises several issues on this appeal in addition to his Fifth Amendment and Due Process claims. They are:
1. His therapists have engaged in malpractice by virtue of their lack of professional qualifications in violation of the State Constitution.
2. The ADTC treatment program violated his Fourth and Eighth Amendment rights.
3. The use by the DOC of a "phase" system at the ADTC exceeded administrative ...