ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This
matter is before the Administrative Law Court (“ALC” or “Court”) pursuant to
the appeal of Bennie Wicker (“Inmate” or “Appellant”), an inmate incarcerated
with the South Carolina Department of Corrections (“SCDC” or “Department”)
since January 15, 1984 after being convicted of murder and other offenses. In
his appeal, Wicker challenges the imposition of a mandatory $250.00 fee for
mandatory DNA processing.
ISSUES
This
is an appeal of a final decision by SCDC in an inmate grievance proceeding on
the grounds that:
(a)
SCDC erred in finding that Appellant had no property interest in non-wage funds
deposited into his prison trust account (such as gifts from friends and family);
(b)
SCDC denied Appellant Due Process when it made a withdrawal from non-wage
related funds in the inmate’s account to be applied to the cost of his DNA
testing; and
(c)
Inmate has been made the subject of ex post facto legislation in
violation of the state and federal Constitutions because Inmate was convicted
and sentenced before the passage of the act authorizing the DNA testing and
requiring payment by him.
STANDARD OF REVIEW
The
Court's jurisdiction to hear this matter is derived entirely from the decision
of the South Carolina Supreme Court in Al-Shabazz v. State, 338 S.C.
354, 527 S.E.2d 742 (2000). The Court's appellate jurisdiction in inmate
appeals is limited to state created liberty interests typically involving: (1)
cases in which an inmate contends that prison officials have erroneously
calculated his sentence, sentence-related credits, or custody status; and (2)
cases in which an inmate has received punishment in a major disciplinary
hearing as a result of a serious rule violation. Id. However, the South
Carolina Supreme Court recognizes a limited Administrative Law Court
jurisdictional exception “where inmate claims deprivation of property
interest.” Slezak v. SC Dep’t of Corr., 361 S.C. 327, 330, 605 S.E.2d
506, 507 (2004), citing Wicker v. SC Dep’t of Corr., 360 S.C. 421, 602
S.E.2d 56 (2004). This case involves an inmate claiming deprivation of a
property interest. Therefore, this Court has jurisdiction over this appeal.
When
reviewing the Department's decisions in inmate grievance matters, the Court
sits in an appellate capacity. Id. at 756. Consequently, the review in
these inmate grievance cases is limited to the Record presented.
An
Administrative Law Judge may not substitute his judgment for that of an agency
"as to the weight of the evidence on questions of fact." S.C. Code
Ann. § 1- 23-380(A)(6) (Supp. 2003). Furthermore, an Administrative Law Judge
may not reverse or modify an agency's decision unless substantial rights of the
Appellant have been prejudiced because the decision is clearly erroneous in
view of the substantial evidence on the whole Record, arbitrary or affected by
an error of law. See Section 1-23-380(A)(6); See also Marietta Garage,
Inc. v. South Carolina Dep’t of Public Safety, 337 S.C. 133, 522 S.E.2d 605
(Ct. App. 1999); South Carolina Dep’t of Labor, Licensing and Regulation v.
Girgis, 332 S.C. 162, 503 S.E.2d 490 (Ct. App. 1998). "'Substantial
evidence' is not a mere scintilla of evidence nor the evidence viewed blindly
from one side of the case, but is evidence which, considering the Record as a
whole, would allow reasonable minds to reach the conclusion that the
administrative agency reached or must have reached in order to justify its
action." Lark v. Bi-Lo, 276 S.C. 130, 135, 276 S.E.2d 304, 306
(1981). Accordingly, the possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative agency's finding from
being supported by substantial evidence. Grant v. South Carolina Coastal
Council, 319 S.C. 348, 461 S.E.2d 388 (1995).
DISCUSSION
Property Interest
Respondent
cites Washlefski v. Winston, 234 F3d 179 (2000) and Givens v. Alabama,
381 F.3d 1064 (2004) in support of the right of SCDC to use inmate funds other
than wages to the inmate’s DNA fee.
In Washlefski, a Virginia inmate contested the right of prison officials to
expend the interest on wages he earned while a prisoner which had been
deposited in his prison accounts, asserting he had a property interest therein.
His claim was denied upon the ground that as a prisoner, his only right in the
funds was a limited right created by statute, and so long as prison officials
followed the statute, there was no deprivation. Under Virginia law, which
adopted the common law, prisoners did not have property rights.
In Givens, the ground for appeal was similar to Washlefski, in that
it involved an inmate’s claim to a property interest in interest earned on
inmate wages deposited in inmate accounts. The Court concluded that inmates had
no common law property rights under Alabama law nor had any property rights
been created by statute, regulation or policy and thus the inmate had no
property right which could give rise to a “taking” or protected interest. See Givens, 381 F.3d 1064 (2004).
The
basis for the lack of a common law right lay in the common law principle that “Although
non-inmates enjoyed an assortment of property rights at common law, inmates did
not.” Givens at 381 F.3d 1068.
South Carolina no longer follows the common law in this respect. “No bill of attainder, ex
post facto law, law impairing the obligation of contracts, nor law granting any
title of nobility or hereditary emolument shall be passed, and no conviction
shall work corruption of blood or forfeiture of estate.” (Emphasis
supplied.) S.C. Constitution, Article 1, § 4.
A
further distinction is that both of the cases mentioned above dealt with wages
earned by the inmate as authorized by statute, regulation or policy. In the
case at hand, the funds in contest are derived from sources other than the
wages described in S.C. Code Ann. § 23-3-670 (Supp. 2004).
I
conclude that Appellant does have a property interest in non-wage funds deposited
in his prison account such as gifts from family and friends as well as property
acquired by inheritance or devise.
Due Process
In
1994 the S. C. Legislature created the State Deoxyribonucleic Acid
Identification Record Database Act, §23-3-600 through §23-3-700 of the South
Carolina Code of Laws, requiring certain inmates to provide DNA samples, which
includes the following:
S.C. Code Ann. §
23-3-670 (Supp. 2004), Processing fee; payment by person providing sample.
(A) A person who is
required to provide a sample pursuant to this article must pay a two hundred
and fifty dollar processing fee which may not be waived by the court. If the
person is incarcerated, the fee must be paid before the person is released from
confinement and may be garnished from wages the person earns while
incarcerated. …
Appellant
asserts that the statute limits the reach of the prison officials to those
funds earned as wages by the inmate. That is not the case. The statute does
not limit the source of repayment wages.
In Matthews v. Eldridge, the United States Supreme Court explained that
“due process is flexible and calls for such procedural protections as the
particular situation demands.” Matthews v. Eldridge, 424 U.S. 319, 334 (1976). The Court further explained that,
[I]dentification of
the specific dictates of due process generally requires consideration of three
distinct factors: First, the private interest that will be affected by the
official action; second, the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government’s interest,
including the function involved and the fiscal and administrative burdens that
the additional or substitute procedural requirement would entail.
Id. at 335. The application of these three factors demonstrates that no further due
process is warranted or needed to protect Appellant’s property rights in the
non-wage funds voluntarily deposited into his Cooper Trust Fund account.
1. Private
Interest Affected
Although
an inmate’s private interest in his personal funds is apparent, an inmate is
not entitled to complete control over his money while in prison. Mahers v.
Halford, 76 F 3d 951, 954 (1996). While incarceration does not deprive
prisoners of the protection of the United States Constitution, an inmate’s
constitutional rights are subject to certain restrictions and limitations. Id. Many privileges and rights are withdrawn or limited during incarceration because
of the underlying purposes of our penal system. Id. An inmate is not
absolutely deprived of the benefit of their money when part of it is applied
toward their restitution debts. Id. at 954-955. The general principle is
that an inmate whose money is taken and applied toward his court-ordered
restitution debt does not suffer a total deprivation of that money. Id. at 955.
This
general principle is applicable to Inmate Wicker’s case, the only difference
being that Wicker’s debt was established by act of the Legislature and not the
Courts. Inmate Wicker is receiving the benefit of the deduction because it is
used on his behalf in the payment of a debt that must be paid.
2. Risk of
Erroneous Depravation
Once
the DNA debt of $250.00 was established by Act of the S.C. Legislature, SCDC
followed through by issuing a memo to its wardens dated August 17, 2004,
outlining the procedure for repayment which included withdrawals from non-wage
funds in inmate “E.H. Cooper Trust Fund” accounts and requiring that inmate
populations be notified immediately that the new procedure would go into effect
on September 13, 2004. Appellant Wicker clearly had notice thereof, at the latest by October 20, 2004 because that is the date on his Step 1 Inmate Grievance
Form grieving the deduction under the policy complained of and which ultimately
led to this appeal.
The
“procedures used”, then, are notice to the inmate, after which he may avoid the
deduction by preventing any future deposit of non-wage funds into his account
(SCDC makes no deductions from non-wage funds which were in the account prior
to September 13, 2004). If Inmate fails to prevent further deposits, these
deposits are considered a voluntary submission to SCDC policy and cannot be
deemed a “taking”.
The
matters that mitigate against any erroneous deprivation are:
(a)
The debt is exact in amount, having been set by statute.
(b)
The amount cannot be changed or waived, even by a Court.
(c)
The identity of those liable for the debt is also set by statute.
(d)
Those who do not want to have the deduction made from their account
may “opt out” by preventing further non-wage
deposits into the account. If they fail to do so, their payments are voluntary.
Appellant’s
Brief argues ardently that inmates, for various reasons, cannot control the
deposit of non-wage funds into their accounts. I do not find his arguments
persuasive.
In Mackey
v. Montrym, the United States Supreme Court stated that “… the Due Process
Clause has never been construed to require that the procedures used to guard
against an erroneous deprivation of a protectible ‘property’ or ‘liberty’
interest be so comprehensive as to preclude any possibility of error.” Mackey
v. Montrym, 443 U.S. 1, 13, 99 S.Ct. 2612, 2618 (1979). All governmental
decision making does not have to comply with standards that assure perfect,
error free determinations. Id. “Thus, even though our legal tradition
regards the adversary process as the best means of ascertaining truth and
minimizing risk of error, the ‘ordinary principle’ established by our prior
decisions is that something less than an evidentiary hearing is sufficient
prior to adverse administrative action.” Id. Therefore, when prompt
post-deprivation review is available for correction of administrative error, all
that is required is that the pre-deprivation procedures used be designed to
provide a reasonably reliable basis for concluding that the facts justifying
the official action are as a responsible government official warrants them to
be. Id.
The
only evident material errors that might occur in a case such as this one would
be a result of a mistaken identity or a mathematical error in computing the
deduction. Both possibilities can be handled through the inmate grievance
procedure, or through the civil courts.
3. Probable
Value of Additional or Substitute Safeguards
Clearly,
no additional safeguards are necessary here. The amount of the debt has been
set by statute. The Appellant had notice of the new procedure. The Appellant
can avoid the deduction for the DNA debt by preventing the deposit of non-wage
funds into his account, effectively “opting out” of the procedure. Also, any
errors including, but not limited to, those involving mistaken identity and
mathematical errors can be addressed through the inmate grievance procedure
and/or a civil remedy such as one of the counts of assumpsit in the Court of
Magistrate.
Government’s Interest
In
this case, the collection of the debt due the state of South Carolina for DNA
testing serves important state interests of imposing payment on the one whose
conduct created the debt and teaching inmates responsibility. Mahers at
76 F.3d 956. In addition, there are the purposes of the act set forth in §23-3-610
to “develop DNA profiles on samples for law enforcement purposes and for
humanitarian and non-law enforcement purposes as provided for in Section
23-3-640(B).” See Cannon v. S.C. Dep’t of Probation and Parole,
361 S.C. 425, 432, 604 S.E.2d 709, 713 (Ct. App. 2004); S.C. Code Ann. §
23-3-610 (Supp. 2004) and § 23-3-640(B) (Supp. 2004).
Furthermore,
the state’s interest in maintaining administrative control over prisons is
significant, and Courts are not ideally situated to oversee the minute details
of prison administration. Mahers at 76 F.3d 956.
Ex Post Facto
The
South Carolina Court of Appeals in Cannon ruled that in order for the ex
post facto clause to be applicable, the statute or the provision in question
must be criminal or penal in purpose or nature, and that the intent of the
Legislature in enacting the State Deoxyribonucleic Acid Identification Act
found in §23-3-600 through §23-3-700 of the South Carolina Code of Laws was
civil, not criminal or punitive in nature. See Cannon at 361
S.C. 432, 604 S.E.2d 713. In such cases, the party asserting the protection of
the ex post facto clause must “… provide the clearest proof that the
statutory scheme is so punitive either in purpose or effect as to negate the
[legislature’s] intention.” Id. at 361 S.C. 432, 604 S.E.2d 713.
The
Appellant here has offered no such proof. I thus conclude that the ex post
facto portion of the appeal should be dismissed and the decision appealed from
affirmed on that issue.
CONCLUSION
I
find that a balancing of the factors set forth in Matthews compels a
holding that the South Carolina Department of Corrections’ deductions of
non-wage funds received into an inmate’s account, which are applied to reduce
his DNA debt created by S.C. Code Ann. § 23-3-670 (Supp. 2005) after notice
has been provided, did not violate the Due Process Clause. Given the limited
nature of the deductions, the more limited due process protections applicable
to prisoners, and the deference to be paid to the decisions of state administrative
agencies, I conclude that the notice procedure provided satisfied the flexible
demands of the Due Process Clause.
There
is one missing element of proof that requires a qualification. There is nothing
in the record that indicates that Appellant received notice of the new policy
prior to the date of his Step 1 Inmate Grievance Form on October 20, 2004. Thus
any non-wage funds deducted from his account for payment of his DNA debt
between September 13, 2004, and October 20, 2004, should be refunded to him.
ORDER
For
the reasons stated above,
IT
IS THEREFORE ORDERED:
(1) That
SCDC’s denial of relief on the ex post facto contention is AFFIRMED;
(2) That
SCDC’s decision is REVERSED to the extent that it holds that inmates
have no property interest in funds deposited into inmate accounts which were
acquired by gift, devise or inheritance;
(3) That
SCDC’s decision that Appellant had sufficient notice of non-wage deductions
from his account to satisfy the requirements of Due Process is AFFIRMED,
but only as of October 20, 2004.
(4) That
SCDC is REVERSED as to any funds deducted from Appellant’s inmate
account between September 13, 2004 and October 20, 2004 in which Appellant had
a property interest as defined in this Order.
(5) That
SCDC shall refund to Inmate Wicker, within sixty (60) days of the date of
service of this Order, any funds deducted from Appellant’s inmate account
between September 13, 2004 and October 20, 2004.
AND IT IS SO
ORDERED.
______________________________
John D. McLeod
Administrative
Law Judge
February 3, 2006
Columbia, South Carolina
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