ORDERS:
ORDER
GRIEVANCE NO. BRCI 0016-01
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division (ALJD or Division) pursuant to the decision of the South
Carolina Supreme Court in Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000). Appellant Abdula Washington
appeals the decision of the South Carolina Department of Corrections (DOC or Department) to revoke 120 days of his
"good-time" credit as punishment for sexual misconduct in violation of DOC Disciplinary Code § 2.09. Having reviewed
the record, applicable law, and the briefs filed by the parties in this matter, I conclude that the decision of the Department
must be reversed.
BACKGROUND
On January 8, 2001, Captain J. Michael Ginn received an Investigative Memorandum from Debra G. Barnwell, an assistant
division director in the DOC Office of Internal Affairs. This memorandum stated that an allegation had been received that
Appellant had engaged in sexual intercourse with inmate Michelle Mathias at the Caldwell-Boylston House on the
Governor's Mansion grounds. The memorandum went on to state that, while Appellant had denied the accusation, he had
shown inconclusive responses on a polygraph examination and that inmate Mathias had admitted to having sexual
intercourse with Appellant at the Caldwell-Boylston House. As a result of this Investigative Memorandum, Appellant was
charged with violating DOC Disciplinary Code § 2.09, Sexual Misconduct.
A hearing of this charge was held before a DOC Disciplinary Hearing Officer (DHO) on January 11, 2001. Captain Ginn
testified at the hearing as the accusing officer; however, he conceded that his only knowledge of the incident came from the
information delivered to him from Internal Affairs. (Hr'g Tr. at 3.) The Investigative Memorandum was also introduced
into evidence at the hearing. Other than Captain Ginn's testimony and the Investigative Memorandum, no other evidence
of Appellant's misconduct was produced at the hearing. At the close of the hearing, the DHO found Appellant guilty of
sexual misconduct and revoked 120 days of Appellant's good-time credit as punishment for the offense.
Appellant appealed his conviction to the Department and then to this tribunal. On appeal, Appellant raises several due
process arguments in opposition to his conviction; most notably, he argues that there is insufficient evidence in the record
to support his conviction.
ANALYSIS
In Al-Shabazz, the South Carolina Supreme Court held that inmates may seek review of final decisions of the Department
in certain "non-collateral" or administrative matters (i.e., those matters in which an inmate does not challenge the validity
of a conviction or sentence) by appealing those decisions to the ALJD pursuant to the South Carolina Administrative
Procedures Act (APA). Al-Shabazz, 338 S.C. at 376, 527 S.E.2d at 754. In McNeil v. South Carolina Department of
Corrections, a majority of the judges of the ALJD, sitting en banc, held that this tribunal's jurisdiction to hear inmate
appeals under Al-Shabazz is limited to: (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 the Department has taken an
inmate's created liberty interest as punishment in a major disciplinary hearing. McNeil v. S.C. Dep't of Corrections, No.
00-ALJ-04-00336-AP, slip op. at 4-5 (S.C. Admin. Law Judge. Div. Sept. 5, 2001) (en banc). In the case at hand,
Appellant contends that the Department improperly revoked 120 days of his good-time credit as punishment in a major
disciplinary hearing; accordingly, this tribunal has jurisdiction over this matter.
When reviewing the Department's decisions in inmate grievance matters, the ALJD sits in an appellate capacity. Al-Shabazz, 338 S.C. at 377, 527 S.E.2d at 754. Consequently, this tribunal's review of inmate appeals is confined to the
record presented, id., and its inquiry into these matters is primarily concerned with ensuring that the Department has
granted aggrieved inmates the process they are due when their constitutional rights are implicated. Id. at 369, 527 S.E.2d at
750; McNeil, No. 00-ALJ-04-00336-AP, at 5 ("[O]ur review is limited solely to the determination of whether the
Department granted 'minimal due process' in reaching [its] decisions . . . ."). Further, recognizing that prison officials are
in the best position to decide inmate disciplinary matters, this tribunal will adhere to the traditional "hands off" approach to
internal prison disciplinary policies and procedures when reviewing inmate appeals under the APA. Al-Shabazz, 338 S.C.
at 382, 527 S.E.2d at 757; see also Pruitt v. State, 274 S.C. 565, 266 S.E.2d 779 (1980) (stating the traditional "hands off"
approach of South Carolina courts regarding internal prison discipline and policy). However, notwithstanding this
deferential standard of review, this tribunal must conduct meaningful review of the Department's actions to ensure that
inmate grievances are addressed in a fair, reasonable, and efficient manner. Al-Shabazz, 338 S.C. at 383, 527 S.E.2d at
757.
In the present case, Appellant contends that the Department's decision to revoke his good-time credit was made in violation
of his due process rights. Because inmates have a protected liberty interest in their earned statutory good-time credits under
the Fourteenth Amendment, they are entitled to "minimum procedures appropriate under the circumstances and required by
the Due Process clause to insure that the state-created right is not arbitrarily abrogated." Wolff v. McDonnell, 418 U.S.
539, 557 (1974). Thus, where, as here, an inmate faces the revocation of good-time credits as punishment in a disciplinary
hearing, prison officials must provide that inmate with certain procedural safeguards. Al-Shabazz, 338 S.C. at 370, 527
S.E.2d at 750. (1) These procedural safeguards include:
(1) that advance written notice of the charge be given to the inmate at least twenty-four hours before the hearing; (2) that
factfinders must prepare a written statement of the evidence relied on and reasons for the disciplinary action; (3) that the
inmate should be allowed to call witnesses and present documentary evidence, provided there is no undue hazard to
institutional safety or correctional goals; (4) that counsel substitute (a fellow inmate or a prison employee) should be
allowed to help illiterate inmates or in complex cases an inmate cannot handle alone; and (5) that the persons hearing the
matter, who may be prison officials or employees, must be impartial.
Id. at 371, 527 S.E.2d at 751 (paraphrasing Wolff). Beyond these procedural requirements, the United States Supreme
Court has held that the revocation of an inmate's good-time credits does not comport with Due Process unless "there [is]
some evidence from which the conclusion of the [prison official] could be deduced." Superintendent, Mass. Corr. Inst. v.
Hill, 472 U.S. 445, 455 (1985). (2) Thus, if the Department affords the inmate a Wolff-type hearing and has at least some
evidence in the record to support its decision, the Department's revocation of an inmate's good-time credits satisfies the
requirements of due process.
In the disciplinary proceedings underlying the instant appeal, Appellant was not afforded all the process due him pursuant
to Al-Shabazz. While the hearing conducted by the DHO did meet the basic procedural requirements of Wolff, the
conclusions reached by the DHO are not supported by the evidence in the record such that the "some evidence" standard of
Hill has not been met. The sole evidence relied upon by the DHO in finding Appellant guilty of the charge against him was
hearsay evidence of an inconclusive polygraph test taken by Appellant and hearsay evidence of a statement made by a
female inmate accusing Appellant of the offense. (Hr'g Tr. at 5.) While hearsay evidence is not necessarily inadmissable
in prison disciplinary proceedings, the hearsay and polygraph evidence produced in this case-and solely relied upon by the
DHO for Appellant's conviction-does not meet the "some evidence" standard required by due process. In Johnson v. State,
576 So. 2d 1289 (Ala. Crim. App. 1991), the Alabama Court of Criminal Appeals reached a similar conclusion when faced
with a similar situation. In that case, an inmate had been convicted in a prison disciplinary proceeding of sexually
assaulting another inmate based solely upon the hearsay testimony from the arresting officer regarding the accusations of
the alleged victim and the results of a polygraph test the inmate purportedly failed. The court found the hearsay evidence to
be insufficient to meet the "some evidence" standard and reversed the disciplinary conviction; it wrote:
"We have held that, while hearsay testimony may be admissible in prison disciplinary hearings, it may not be sufficient by
itself in all cases to support a finding of guilt." Taking into consideration all the instant circumstances, we find that the
hearsay testimony was not sufficient to meet the "some" evidence standard. The record offers nothing to indicate the
reliability of the accusation, and we find no worthwhile corroboration in the polygraph test. In fact, to condone the use of
the polygraph results, in this instance, would only compound the unfairness and unreliability of the officer's finding of
guilt. Neither the hearsay accusation nor the results of the polygraph test have any probative value-separately or together.
Johnson, 576 So. 2d at 1290 (citations omitted). Such is the case here. The meager hearsay evidence presented against
Appellant at the disciplinary hearing does not meet the "some evidence" standard set forth in Hill, and thus, the
proceedings leading to his conviction did not satisfy the basic requirements of due process. Accordingly, Appellant's
disciplinary conviction for sexual misconduct must be reversed.
IT IS THEREFORE ORDERED that Appellant's January 11, 2001 disciplinary conviction for violating DOC
Disciplinary Code § 2.09, Sexual Misconduct, is REVERSED.
IT IS FURTHER ORDERED that the Department shall restore to Appellant all good-time credit taken from or lost by
Appellant as a result of that conviction.
AND IT IS SO ORDERED.
JOHN D. GEATHERS
Administrative Law Judge
June 21, 2002
Columbia, South Carolina
1. However, this set of safeguards is necessarily a limited one. See Wolff, 418 U.S. at 560 ("[I]t is immediately apparent
that one cannot automatically apply procedural rules designed for free citizens in an open society . . . to the very different
situation presented by a disciplinary proceeding in a state prison.").
2. This review "does not require examination of the entire record, independent assessment of the credibility of witnesses, or
weighing of the evidence," Hill, 472 U.S. at 455; rather, this standard only requires this tribunal to determine whether
"there is any evidence in the record that could support the conclusion reached by the [prison official]." Id. at 455-56. |