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Shawn Hersey v. New Jersey Department of Corrections


January 9, 2013


On appeal from the New Jersey Department of Corrections.

Per curiam.


Submitted October 17, 2012

Before Judges Ashrafi and Hayden.

Inmate Shawn Hersey appeals from a final decision of the New Jersey Department of Corrections (NJDOC) rejecting his challenge to a ten percent surcharge added to the costs of personal items he purchases from the prison commissary. Hersey contends the surcharge violates his rights under the constitution and laws of New Hampshire, the state in which he was convicted and sentenced to prison. We affirm.

The ten percent surcharge is required by N.J.S.A. 30:4-15.1. The revenue it generates is slated for the Victims of Crime Compensation Board (VCCB), N.J.S.A. 2C:43-3.1, 52:4B-1 to -25.1. Under the same statute, prison commissary sales are exempt from New Jersey sales tax. N.J.S.A. 30:4-15.1.

Hersey argues that the statute cannot apply to him because he was not convicted of a crime in New Jersey. In 2003, Hersey pleaded guilty in New Hampshire to four charges of aggravated sexual assault. He was sentenced in that state to a minimum of twelve and a maximum of twenty-seven years in prison.*fn1 In December 2005, Hersey was transferred from a New Hampshire prison to serve his sentence under the supervision of NJDOC at the Adult Diagnostic and Treatment Center in Avenel, New Jersey. The transfer was authorized by the Interstate Corrections Compact, N.J.S.A. 30:7C-1 to -12; N.H. Rev. Stat. Ann. § 622-B, and it was subject to a contract between the prison systems of the two states executed in 2002.

In July 2011, still in custody in New Jersey, Hersey filed a formal administrative request with prison officials challenging the deduction of commissary surcharges from his inmate account. He claimed that the surcharge as applied to him is unconstitutional under New Hampshire law, which must be applied to the service of his prison sentence. His formal request to exempt his prison account from the surcharge was denied by a written decision of NJDOC administration on August 20, 2011. His further administrative appeal was denied by NJDOC on August 24, 2011.

Hersey then filed this appeal before us, arguing:







Hersey cites Starr v. Governor, 802 A.2d 1227 (N.H. 2002), as the controlling constitutional decision prohibiting collection of a commissary surcharge from him. In Starr, the New Hampshire Supreme Court held that a similar New Hampshire statute that imposed a commissary surcharge upon New Hampshire prison inmates violated the New Hampshire constitution. Id. at 1229-30. The Court held that the surcharge was a tax that was disproportionately applied to inmates in violation of the state constitution because no other citizens were subject to a similar surcharge or tax. Ibid.

We reject Hersey's argument that Starr is binding on the courts of this State and controls imposition of the surcharge required by the New Jersey statute. Unlike New Hampshire, New Jersey imposes a state sales tax on all purchasers of designated merchandise and services in this state, N.J.S.A. 54:32B-1 to -55, and the prison commissary surcharge operates similarly to and in place of the state sales tax. The proportionality reasoning of the New Hampshire Supreme Court does not apply to the New Jersey statute.

In addition, the surcharge is a civil assessment applicable to Hersey's purchase of merchandise rather than additional monetary punishment imposed upon him by the laws of New Jersey because he committed crimes. Auge v. N.J. Dep't of Corr., 327 N.J. Super. 256, 262-66 (App. Div.), certif. denied, 164 N.J. 559 (2000). We have previously held that the surcharge does not violate the United States or New Jersey constitutional rights of inmates. Id. at 268. Likewise, the United States Court of Appeals has rejected a federal constitutional challenge to the New Jersey surcharge. Myrie v. Comm'r, N.J. Dep't of Corr., 267 F.3d 251 (3d Cir. 2001).

With reference to New Hampshire inmates housed in a New Jersey prison, the Interstate Corrections Compact and the contract between New Hampshire and New Jersey establish a framework for the application of laws and rules from both states to a transferred inmate. Paragraph 2 of the contract, which is entitled "Governing Law," provides that the law of the sending state shall apply "[e]xcept where otherwise provided in, or required by the Interstate Corrections Compact." The Interstate Corrections Compact requires that:

All inmates who may be confined in an institution pursuant to the provisions of this compact shall be treated in a reasonable and humane manner and shall be treated equally with such similar inmates of the receiving state as may be confined in the same institution. The fact of confinement in a receiving state shall not deprive any inmate so confined of any legal rights which said inmate would have had if confined in an appropriate institution of the sending state. [N.J.S.A. 30:7C-5e.]

In compliance with this statutory mandate, paragraph 12 of the contract requires that the institution in the receiving state provide "reasonable and humane care and treatment" to inmates from the sending state, "to provide for their physical needs," and to assure "that the sentences and orders of the committing court in the sending state are faithfully executed." At the same time, paragraph 12 of the contract also requires that the receiving state "make certain that they receive no special privileges" and "maintain proper discipline and control" in the prison. Furthermore, it states:

Nothing herein contained shall be construed to require the receiving state or any of its institutions to provide treatment, facilities, or programs for any inmate confined pursuant to the Interstate Corrections Compact which it does not provide for similar inmates of the receiving state.

Finally, paragraph 16 of the contract provides that:

While in the custody of the receiving state, inmates shall be subject to the internal regulations and procedures applicable to persons committed for violations of law of the receiving state which are not inconsistent with any constitutional provisions or with the original sentence imposed.

Read together, these provisions require that the substantive laws of the sending state shall apply to the sentence of a transferred inmate so that his sentence is not increased in length or otherwise made more severe because of the interstate transfer. But the internal regulations and rules of the receiving state shall apply to the transferred inmate "equally," N.J.S.A. 30:7C-5e, as they apply to all other inmates in the prison. Consequently, the state where the crimes were committed is irrelevant to the application of disciplinary and operational rules of the receiving state's prison as long as they do not enhance the inmate's sentence.

As we have stated, an inmate transferred from another state is not entitled to any "special privileges" by virtue of his status as an interstate transferee. NJDOC argues persuasively that, if the commissary surcharge did not apply to some inmates, those inmates might take advantage of the "special privilege" of purchasing items at lower prices, which they might then sell or trade with other inmates at a profit. Or, inmates that do not enjoy the privilege of the lower prices might try to force inmates from other states to purchase items for them, thus causing disciplinary problems in the prison.

We conclude, as we did previously in Auge, supra, 327 N.J. Super. at 263-64, that the commissary surcharge is not a substantive law that changes the terms of an inmate's sentence. It applies to Hersey "equally" as to all inmates serving their sentence in New Jersey prisons. As NJDOC stated in its final decision, we also note that Hersey is not required to purchase items from the commissary.

Hersey argues that he has no recourse but to purchase some personal items from the commissary, such as shampoo. He states the prison does not otherwise provide these necessities. Assuming Hersey has no alternative access to necessary personal items, the alleged detriment to him is ultimately that he must pay more for these items than he believes he would pay if he were still imprisoned in New Hampshire. If we were to accept Hersey's argument based on higher cost, then perhaps he could also argue that he is entitled to the same lower price for an item, irrespective of an added surcharge, that he would pay in a New Hampshire prison commissary. Or, hypothetically, he could complain about the quality of the merchandise he must purchase in New Jersey. The Interstate Corrections Compact would be impossible to implement if prison officials in each state were required to impose precisely the same conditions of confinement on out-of-state inmates as the inmate might have experienced in the sending state's prisons, including, for example, the type and price of the shampoo made available at the prison commissary.

As an alternative constitutional argument, Hersey contends the surcharge is improperly applied to him because the victim of his crimes in New Hampshire cannot benefit from the VCCB compensation the surcharge funds. VCCB funds, however, are not designated for any particular victims. New Jersey inmates whose crimes did not have identifiable victims or whose victims are not available to apply to the VCCB for reimbursement are nevertheless required to pay into the same fund. See Auge, supra, 327 N.J. Super. at 266-67.

We find no constitutional or other prohibition on imposing the statutory surcharge required by N.J.S.A. 30:4-15.1 on Hersey's purchase of merchandise from his New Jersey prison commissary.


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