January 2003 Term
STATE OF WEST VIRGINIA EX REL. RANDY BAILEY,
STATE OF WEST VIRGINIA, DIVISION OF CORRECTIONS;
JAMES RUBENSTEIN, COMMISSIONER; MARK A. WILLIAMSON,
WARDEN; DENMAR CORRECTIONAL CENTER; AND WILLIAM S.
HAINES, WARDEN, HUTTONSVILLE CORRECTIONAL CENTER,
WRIT OF MANDAMUS
Submitted: April 9, 2003
Filed: June 19, 2003
Jason E. Huber, Esq.|
Forman & Huber
Charleston, West Virginia
Christopher W. Cooper, Esq.
Parsons, West Virginia
Attorneys for Petitioner
Darrell V. McGraw, Jr.|
Charles P. Houdyschell, Jr.
Assistant Attorney General
Charleston, West Virginia
Attorneys for Respondents
this Court may properly issue a writ of mandamus three elements must coexist:
(1) the existence of a clear right in the petitioner to the relief sought;
(2) the existence of a legal duty on the part of the respondent to do the thing
the petitioner seeks to compel; and (3) the absence of another adequate remedy
at law. Syl. pt. 3, Cooper
v. Gwinn, 171 W. Va. 245, 298 S.E.2d 781 (1981).
2. Good time credit is a valuable liberty interest protected by the due process clause, W. Va. Const. art. III § 10. Syl. pt. 2, State ex rel. Gillespie v. Kendrick, 164 W. Va. 599, 265 S.E.2d 537 (1980).
3. The provisions of West Virginia Code § 28-5-27 (1992) solely govern the accumulation of 'good time' for inmates sentenced to the West Virginia State Penitentiary. Syl. pt. 3, State v. Jarvis, 199 W. Va. 635, 487 S.E.2d 293 (1997).
4. Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation. Syl. pt. 2, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968).
Pursuant to West Virginia Code § 28-5-27(g) (1984), prison authorities calculated Mr. Bailey's minimum discharge date to be May 13, 2003. That is, provided that Mr. Bailey did not have any discipline problems, he could earn one day good time for each day served and be released in eighteen months, rather than thirty-six months. After initial processing at the Mount Olive Correctional Complex in Fayette County, Mr. Bailey arrived on March 7, 2002 at the Denmar Correctional Center near Hillsboro in Pocahontas County.
Apparently Mr. Bailey did not adjust well to prison life, and he soon ran afoul of several prison rules. In his first three weeks at Denmar, Mr. Bailey allegedly created a disturbance and refused an order, both of which are violations of prison rules. Prison officials neither segregated Mr. Bailey nor did they deduct any good time for these two offenses, although they did revoke certain other privileges. Within one week of these initial troubles, Mr. Bailey allegedly committed four additional rule violations, including allegedly threatening to knock someone's head off, being disruptive and raising his voice in a loud and threatening manner, refusing an order to use a sign in/out log, and refusing an assigned work detail.
Prison authorities memorialized each of these last four offenses by preparing a document called a Violation Report, specifying the wrongful conduct and noting the particular rule allegedly violated by Mr. Bailey. On April 11, 2001, a magistrate (See footnote 1) held a series of hearings on these offenses, and in each case the magistrate found Mr. Bailey guilty.
The magistrate entered three separate orders, each of which reduced Mr. Bailey's good time by six months. By notice dated April 18, 2002, prison authorities informed Mr. Bailey that he had lost a total of 18 months of good time and that his new minimum discharge date would be November 13, 2004.
As of the date of the notice, April 18, 2002, Mr. Bailey had only served 156
days of his sentence, thus, pursuant to W. Va. Code § 28-5-27(c) (1984), Mr. Bailey had only
earned, in his view, 156 days of good time. The magistrate's orders took away not only these
156 days, but also took away every possible day of good time that Mr. Bailey could ever earn
under his original sentence. Thus the decision of the magistrate, if left standing, would
require Mr. Bailey to serve the entirety of his 1 to 3 year sentence.
(See footnote 2)
Mr. Bailey subsequently
attempted to appeal the magistrate's decision to the Commissioner of West Virginia Division
of Corrections, Jim Rubenstein, to no avail. Mr. Bailey now petitions this Court for a writ
of mandamus, ordering the respondents to return any good time days beyond the 156 days
he had served as of the date of the notice. For the reasons set forth below, we grant the writ.
Petitioner Bailey seeks a writ of mandamus. As this Court has noted on many
Before this Court may properly issue a writ of mandamus three elements must coexist: (1) the existence of a clear right in the petitioner to the relief sought; (2) the existence of a legal duty on the part of the respondent to do the thing the petitioner seeks to compel; and (3) the absence of another adequate remedy at law.
Syl. pt. 3, Cooper v. Gwinn, 171 W. Va. 245, 298 S.E.2d 781 (1981); accord, Parks v. Board of Review, 188 W. Va. 447, 425 S.E.2d 123 (1992). We bear this standard in mind as we review the arguments of the parties.
First we note that good time is designed to advance the goal of improved prison discipline. Woods v. Whyte, 162 W. Va. 157, 160, 247 S.E.2d 830, 832 (1978) (citation and footnote omitted); accord, State ex rel. Valentine v. Watkins, 208 W. Va. 26, 32, 537 S.E.2d 647, 653 (2000). Perhaps no place else are fairness and predictability more valued than within the walls of a prison. Those incarcerated have little to look forward to, and little to motivate them, beyond a return to their normal, free lives on the outside. It is vitally important to the orderly operation of our prisons that inmates believe they will be rewarded for good behavior.
As this Court has stated: [t]he purpose of awarding good time credit is to encourage not only rehabilitative efforts on the part of the inmate by encouraging the industrious and orderly, but also to aid prison discipline by rewarding the obedient. Woodring v. Whyte, 161 W. Va. 262, 275, 242 S.E.2d 238, 246 (1978); accord, State ex rel. Valentine v. Watkins, 208 W. Va. 26, 32, 537 S.E.2d 647, 653 (2000).
This Court has described good time as a purely statutory creation Woods v. Whyte, 162 W. Va. 157, 160, 247 S.E.2d 830, 832 (1978), and the Court has often explained that it is the legislative, and not judicial branch that gave life to this practice: 'We repeatedly have held that '[c]ommutation of time for good conduct is a right created by the Legislature.' Syl. pt. 8, in part, Woodring v. Whyte, 161 W. Va. 262, 242 S.E.2d 238 (1978); accord, State ex rel. Valentine v. Watkins, 208 W. Va. 26, 32, 537 S.E.2d 647, 653 (2000). State ex rel. Williams v. Dept. of Military Affairs, 212 W. Va. 407, 414, 573 S.E.2d 1, 8 (2002).
However, once created by the state and granted to inmates, good time may not be taken away arbitrarily. As this Court has long held: Good time credit is a valuable liberty interest protected by the due process clause, W. Va. Const. art. III § 10. Syl. pt. 2, State ex rel. Gillespie v. Kendrick, 164 W. Va. 599, 265 S.E.2d 537 (1980). Accord, syl. pt. 3, State ex rel. Goff v. Merrifield, 191 W. Va. 473, 446 S.E.2d 695 (1994); syl. pt. 2, State ex rel. Coombs v. Barnette, 179 W. Va. 347, 368 S.E.2d 717 (1988); syl. pt. 6, State ex rel. Williams v. Dept. of Military Affairs, 212 W. Va. 407, 573 S.E.2d 1 (2002).
As this Court explained in Gillespie, we have looked to the United States
Supreme Court for guidance on this issue, and that Court has explained that the mere fact that
good time is a legislatively created right does not permit the state to take it from a prisoner
But the State having created the right to good time . . . the prisoner's interest has real substance and is sufficiently embraced within Fourteenth Amendment liberty to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated . . . .
We think a person's liberty is equally protected, even when the liberty itself is a statutory creation of the State. The touchstone of due process is protection of the individual against arbitrary action of government, Dent v. West Virginia, 129 U.S. 114, 123, 9 S.Ct. 231, 233, 32 L.Ed. 623 (1889).
Wolff v. McDonnell, 418 U.S. 539, 557-58, 94 S.Ct. 2963, 2975-76, 41 L.Ed.2d 935, 951-52 (1974). However, c.f. Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L.Ed. 2d 418 (1995), which held, with respect to segregating prisoners from the general prison population, that prisoners may not have a liberty interest in being free from punitive segregation. (See footnote 3)
Or, as this Court stated in a more encompassing fashion, incarceration does not
strip an inmate of all rights, or deprive him or her the expectation that the state will act in a
reasonable and logical manner:
Our federal and state constitutions do not give liberty to people: they protect a free people from deprivation of their God-given freedom by governments. The entitlement to liberty and freedom must follow every citizen from birth to death, however mean or degenerate he may be viewed by his government or his peers at any given time along the way.
And so, the physical deprivation of his liberty must at every stage carry the burden upon the state to overcome the great presumption that he is a free man. His constitutional rights follow him into prison, or mental hospital, or military servitude, or wherever he is forced by the government to be.
Watson v. Whyte, 162 W. Va. 26, 29, 245 S.E.2d 916, 918 (1978).
Turning to the statute at issue, this Court has explained that, [t]he provisions
of West Virginia Code § 28-5-27 (1992) solely govern the accumulation of 'good time' for
inmates sentenced to the West Virginia State Penitentiary. Syl. pt. 3, State v. Jarvis, 199
W. Va. 635, 487 S.E.2d 293 (1997); accord, syl. pt. 3, State ex rel. Williams v. Dept. of
Military Affairs, 212 W. Va. 407, 573 S.E.2d 1 (2002). This statute first defines good time
and explains for whom it is available and how it is calculated:
(a) All adult inmates now in the custody of the commissioner of corrections, or hereafter committed to the custody of the commissioner of corrections, except those committed pursuant to article four, chapter twenty-five of this code, shall be granted commutation from their sentences for good conduct in accordance with this section.
(b) Such commutation of sentence, hereinafter called good time, shall be deducted from the maximum term of indeterminate sentences or from the fixed term of determinate sentences.
(c) Each inmate committed to the custody of the commissioner of corrections and incarcerated in a penal facility pursuant to such commitment shall be granted one day good time for each day he or she is incarcerated, including any and all days in jail awaiting sentence and which is credited by the sentencing court to his or her sentence pursuant to section twenty-four, article eleven, chapter sixty-one of this code or for any other reason relating to such commitment. No inmate may be granted any good time for time served either on parole or bond or in any other status whereby he or she is not physically incarcerated.
W. Va. Code § 28-5-27 (1984). (See footnote 4)
Of course, once granted, good time may also be taken away from an inmate who has disobeyed the rules of the prison. The section of this statute that is the cynosure of this case states:
(f) The commissioner of corrections shall promulgate separate
disciplinary rules for each institution under his control in which
adult felons are incarcerated, which rules shall describe acts
which inmates are prohibited from committing, procedures for
charging individual inmates for violation of such rules and for
determining the guilt or innocence of inmates charged with such
violations and the sanctions which may be imposed for such
violations. A copy of such rules shall be given to each inmate.
For each such violation, by an inmate so sanctioned, any part or
all of the good time which has been granted to such inmate
pursuant to this section may be forfeited and revoked by the
warden or superintendent of the institution in which the
violation occurred. The warden or superintendent, when
appropriate and with approval of the commissioner, may restore
any good time so forfeited.
W. Va. Code § 28-5-27 (1984) (emphasis added). Mr. Bailey argues that good time days are only granted to him for each day he has actually been incarcerated and been on good behavior. Thus, he claims, a maximum of 156 days of good time could have been granted to him as of April 18, 2002, so it was impossible for the respondents to have taken away more than 156 days.
The respondents argue that other requirements of the statute have the effect of
forcing the state to grant good time days all at once at the commencement of an inmate's
sentence. Respondents point us to the following:
(g) Each inmate, upon his or her commitment to and being received into the custody of the commissioner of the department of corrections, or upon his return to custody as the result of violation of parole pursuant to section nineteen, article twelve, chapter sixty-two of this code, shall be given a statement setting forth the term or length of his or her sentence or sentences and the time of his minimum discharge computed according to this section.
W. Va. Code § 28-5-27 (1984).
We note that: Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation. Syl. pt. 2, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968). Accord, syl. pt. 1, Peyton v. City Council of Lewisburg, 182 W. Va. 297, 387 S.E.2d 532 (1989); syl. pt. 3, Hose v. Berkeley County Planning Commission, 194 W. Va. 515, 460 S.E.2d 761 (1995); syl. pt. 2, Mallamo v. Town of Rivesville, 197 W. Va. 616, 477 S.E.2d 525 (1996). Or in other words, [i]n any search for the meaning or proper applications of a statute, we first resort to the language itself. Maikotter v. University of West Virginia Bd. of Trustees/West Virginia Univ., 206 W. Va. 691, 696, 527 S.E.2d 802, 807 (1999); accord, Affiliated Const. Trades Foundation v. University of West Virginia Bd. of Trustees, 210 W. Va. 456, 466, 557 S.E.2d 863, 873 (2001). (See footnote 5)
While we agree that sub-section (g) of the statute requires a computation of an
inmate's maximum potential good time, we are unpersuaded that this section demands a
grant of an inmate's good time at the outset of a sentence. Obviously there are two important
ingredients to each day of good time, first that the inmate serve one day in prison, and second
that the inmate be good on that day. While some might find interesting the
conceptualization of good time as a package of inchoate rights that, while granted up-front,
only spring to life, or ripen, on days the inmate behaves, we are unmoved by this argument.
Looking at the plain meaning of the words employed by the Legislature, we believe that
when the statute says good time which has been granted, it refers only to those days that
an inmate has actually earned by being incarcerated and behaving appropriately.
We note that respondents argue that ruling in favor of Mr. Bailey could encourage new inmates, who have served little time and thus have little good time to lose, to misbehave, and that not allowing the prospective revocation of all possible good time strips the respondents of a valuable tool to control the inmate population. However, the obvious corollary to respondents' argument is that, once all the good time has been taken away from inmates like Mr. Bailey, the respondents will have then lost this tool anyway. Respondents argue that, to encourage good behavior from inmates who have lost all potential good time, they still may use the revocation of other privileges, or segregation. However, an equally strong argument can be made that these other tools may be used just as effectively on new inmates, who have little good time to lose.
Either way, at some point the respondents will have inmates who either don't have much good time to lose, or have already had their good time taken away. In either case, the respondents must resort to other means to control unruly inmates. With these two positions so equally balanced, we believe the plain meaning of the statute tips the scales and carries the day.
In the instant case, Mr. Bailey, who had been incarcerated only 156 days as of
April 18, 2002, could have had a maximum of only 156 days of good time granted to him as
of that date. We believe it was within the power of the magistrate to take away all of those
days, but no more. Thus, we conclude that Mr. Bailey has a clear right to the relief he seeks,
and that the respondents, collectively, have a legal duty to do that which Mr. Bailey seeks to
compel, i.e., the return of his good time taken in excess of 156 days. Moreover, Mr. Bailey
has no other adequate remedy at law. In conclusion, we find it necessary to grant the
requested writ of mandamus.
For the reasons stated, we grant the requested writ of mandamus and order that
respondents restore to Mr. Bailey all days of good time taken in excess of the 156 days he
had actually earned as of the date of the magistrate's order.
The time has come to return
to the due process principles we believe were correctly established and applied
in Wolff and Meachum. Following Wolff, we recognize
that States may under certain circumstances create liberty interests which
are protected by the Due Process Clause. See also Board of Pardons v.
Allen, 482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987). But these
interests will be generally limited to freedom from restraint which, while
not exceeding the sentence in such an unexpected manner as to give rise to
protection by the Due Process Clause of its own force, see, e.g., Vitek,
445 U.S., at 493, 100 S.Ct., at 1263-1264 (transfer to mental hospital),
and Washington, 494 U.S., at 221-222, 110 S.Ct., at 1036-1037 (involuntary
administration of psychotropic drugs), nonetheless imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.
Sandin v. Conner, 515 U.S. 472, 483-484, 115 S. Ct. 2293, 2300, 132 L.Ed. 2d 418, 429-30 (1995) (footnote omitted).
(d) No inmate sentenced
to serve a life sentence shall be eligible to earn or receive any good
time pursuant to this section.
(e) An inmate under two or more consecutive sentences shall be allowed good time as if the several sentences, when the maximum terms thereof are added together, were all one sentence.
Syl. pt. 4, Maikotter v. University of West Virginia Bd. of Trustees/West Virginia Univ., 206 W. Va. 691, 527 S.E.2d 802 (1999).