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Fochion v. Intensive Supervised Parole

January 27, 2003

ROBERT EDWARD FORCHION, PLAINTIFF,
v.
INTENSIVE SUPERVISED PAROLE, ET AL., DEFENDANTS



The opinion of the court was delivered by: Honorable Joseph E. Irenas

OPINION

Presently before the Court is Plaintiff's request for a preliminary injunction reinstating him to the Intensive Supervision Program ("ISP") pending the outcome of this matter. The request for a preliminary injunction will be granted by the Court.

I.

Plaintiff Robert Edward Forchion is currently incarcerated at the Burlington County Jail after originally pleading guilty, on September 20, 2000, to conspiracy to possess with intent to distribute marijuana. Plaintiff was sentenced to a ten year flat sentence and was released into the ISP program on April 3, 2002.

ISP is a court administered program originally designed by the Administrative Office of the Courts ("AOC"). State v. Cannon, 608 A.2d 341, 344, 128 N.J. 546 (1992). It is funded by the Legislature and is administered by the AOC. Id. at 344. Participants in the program are former inmates who are released from prison before the end of their sentences and are placed under strict supervision. Id. at 344. In order to be accepted into the program an inmate must be approved by the ISP Resentencing Panel, a panel made up of three appointed judges. Id. at 344-45. Under the program there is "[n]o further appellate review of the panel's substantive decision." N.J. Rules of Court 3:21-10(e).

On either April 8 or 9, 2002, Plaintiff was given his first warning that he was violating the terms of his ISP release. The warning, by ISP officer Warren Campbell, related to an interview and article published in The Trentonian newspaper. According to the Plaintiff, he was told not to speak to the press. However, according to his ISP violation report he was only warned that speaking to the press might give the impression that he was promoting the use of marijuana, which under the terms of his release he was not permitted to do.

On May 20, 2002, Plaintiff was again told not to speak to the press after it came to the attention of an ISP officer that he had given interviews to various Philadelphia newspapers. Plaintiff was again warned about speaking to the press on May 23, 2002.

On May 28, 2002, Plaintiff was scheduled to begin work but was told upon showing up that he could not start until a later date. Plaintiff failed to notify his ISP officer that he did not work on that day and the officer did not become aware of the violation until it was reported in two newspapers that the Plaintiff had been protesting outside of the Burlington County Court House on that day. At this time the Plaintiff was placed under electronic surveillance and home confinement. While installing the electronic surveillance the ISP officers at Plaintiff's home demanded that he turn over to them what they claim resembled a cellular telephone but was instead a tape recorder. Plaintiff refused to turn over the tape recorder.

On June 2, 2002, Plaintiff left his home during hours in which he was restricted from doing so. When confronted on this, he claimed that he had attended an Alcoholics Anonymous meeting and had forgotten that he could not leave his home on that day. On June 5, 2002, ISP officer Thomas Bartlett was informed that Plaintiff had been handing out fliers and protesting in front of the Burlington County Courthouse regarding the legalization of marijuana and a child custody matter. On June 6, 2002, Plaintiff was arrested and incarcerated at the Burlington County Jail for violating the terms of his ISP release. In the ISP report following this arrest the officer stated that "Robert has thus far refused to comply with the panel's instructions that he not advocate the use of marijuana."

On June 10, 2002, Plaintiff was returned to the ISP program and, according to the ISP officers, proceeded to further violate the conditions of his release. Plaintiff produced, appeared in, and contracted with Comcast Communications Inc. to air a series of commercials advocating marijuana use, according to the ISP officers, or advocating the legalization of marijuana, according to the Plaintiff. The officers claim that the Plaintiff did not have permission to enter into such a contract.

The ISP officers also continued to note that the Plaintiff was talking to members of the press and either advocating marijuana use or the legalization of marijuana. In addition, the Plaintiff was directed to refrain from running and updating his website, "njweedman.com," and from soliciting funds for his political party, the Legalize Marijuana Party, through the website. Articles regarding the Plaintiff continued to appear in The Trentonian, this time regarding his television commercials.

On August 19, 2002 and on August 29, 2002, the Plaintiff refused to answer questions from ISP officers regarding the website and his commercials. Instead, Plaintiff invoked his Fifth Amendment right against self incrimination. Plaintiff also did not pay his court ordered fines. On August 19, 2002, Plaintiff was again taken into custody and removed from the ISP program.

Plaintiff's ISP violation hearing in front of the three judge panel, to determine whether he should be returned to ISP, did not commence until December 4, 2002. The hearing was not completed on that date and was continued until January 17, 2003. Again, the hearing was not completed and was continued, this time to January 29, 2003. Plaintiff originally filed two matters with this Court, one a habeas corpus petition, and the other an action under 42 U.S.C. § 1983 claiming retaliation for exercising his First Amendment rights. Following oral argument before the Court on December 31, 2002, the two actions were consolidated and the matter was transformed into a § 1983 action. The Court ...


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