SER Sams, et al. v. Commissioner, WV Div. of Corrections, No. 26647

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2005 Term

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No. 26647

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STATE OF WEST VIRGINIA EX REL.

DANIEL L. SAMS, ET AL.,

Petitioners

COMMISSIONER, WEST VIRGINIA DIVISION OF CORRECTIONS;

EXECUTIVE DIRECTOR OF THE REGIONAL JAIL AND

CORRECTIONAL FACILITY AUTHORITY; AND

THE WEST VIRGINIA BOARD OF PROBATION AND PAROLE,

Respondents

__________________________________________________

Petition for a Writ of Mandamus

WRIT DENIED

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Submitted: October 11, 2005

Filed: November 30, 2005

George Castelle, Esq.
Wendy Campbell
Kanawha County Public Defender Office
Charleston, West Virginia
Attorneys for the Petitioners

Darrell V. McGraw, Jr.
Attorney General
John H. Boothroyd
Assistant Attorney General
Charleston, West VirginiaAttorneys for the Respondents,
West Virginia Division of Corrections and
West Virginia Board of Probation and Parole

Chad M. Cardinal
Charleston, West Virginia
Attorney for the Respondent,
West Virginia Regional Jail
and Correctional Facility Authority

David Skundor
Mt. Olive, West Virginia
Pro Se
Amicus Curiae

The Opinion of the Court was delivered PER CURIAM.

JUSTICES STARCHER concurs and reserves the right to file a concurring opinion.

SYLLABUS BY THE COURT

      1. “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).

      2. “The statutory scheme of this state places a nondiscretionary duty upon the Division of Corrections to incarcerate those inmates who are sentenced to the penitentiary in a state penal facility operated by the Division of Corrections. Hence, the Division of Corrections is prohibited from lodging inmates in a county or regional jail facility absent the availability of space in these facilities once the inmates have been sentenced to a Division of Corrections facility.” Syl. Pt. 1, State ex rel. Smith v. Skaff, 187 W.Va. 651, 420 S.E.2d 922 (1992).


Per Curiam:

      This Court sua sponte (See footnote 1) issued an order on July 11, 2005, directing that the Respondents file a statement (See footnote 2) regarding the extent to which each component of the September 20, 2002, Long-Term Plan for Reducing the Number of State Prisoners Held in County and Regional Jails (See footnote 3) (hereinafter referred to as “Long Term Plan”) has been implemented. Following oral argument on this critical issue of overcrowding combined with review of the relevant reports and case history of this protracted matter, we reach the decision that it is the combined responsibility of the Executive and Legislative branches to fulfill the terms of the Long Term Plan. Finding no immediate evidence of conditions that are currently resulting in unconstitutional deprivations (See footnote 4) to the Petitioner inmates, we can only urge the other two departments of government to promptly act to address the ongoing issues presented by an ever-burgeoning prison population and to recognize that a failure to act with sufficient alacrity may result in either this Court, or a federal court, being required to intervene in the future.

I. Factual and Procedural Background

      This case had its genesis when six prisoners sought a writ of mandamus to compel their transfer from a regional jail to facilities operated by the West Virginia Division of Corrections (“DOC”). In response to that petition, this Court granted a moulded writ through which we appointed a new special master (See footnote 5) to oversee the preparation of a long-range plan for the transfer of inmates lodged in regional and county jails awaiting transfer to DOC facilities. (See footnote 6) See State ex rel. Sams v. Kirby, 208 W.Va. 726, 542 S.E.2d 889 (2000). The much-awaited Long Term Plan was finally submitted to this Court on September 20, 2002.

      In his final report attached to the Long Term Plan, the Special Master opined that “the Plan involves some critical steps which the Parties cannot take except in response to necessary legislat[ive] and executive action which is beyond their control” and notes further that “the question of whether to adopt many of the recommendations is a political one and outside the authority of the Parties to resolve.” Notwithstanding these observations on the part of the Special Master, the Long Term Plan does contain specific recommendations for improving the serious bed shortages within the DOC. Among such suggestions were detailed plans for completing or expanding various facilities for the purpose of adding more beds to the state's penal system. (See footnote 7) Besides the construction of additional beds, the Long Term Plan set forth various options for addressing the bed space issue presented by an expanding prison population. Those various options included three general approaches to the problem. The first suggestion requires the adoption of specific changes to sentencing policies and practices. (See footnote 8) The second option involves the transfer of inmates from this state to neighboring states on a contractual basis. As a final option, the Long Term Plan considered the need to build additional prison beds (See footnote 9) in fiscal year 2007 if the first two options do not produce the desired result of substantially reducing the number of prisoners currently housed outside the DOC.

      After this Court received the Long Term Plan, we issued an order on January 2, 2003, through which we directed that the matter should be revisited by this body after one year. We further ordered at that time the transmittal of that Long Term Plan to both the Legislative and Executive branches of government for their consideration of the various options identified within the plan for addressing the issue of providing bed space to the state's prison population.

      On October 10, 2003, the West Virginia Board of Probation and Parole was made a party to this matter. This Court further ordered both the Regional Jail and Correctional Facility Authority and the DOC to supply us with reports (See footnote 10) setting forth updated statistical information pertaining to the backlog of prisoners housed in various regional jail facilities awaiting transfer to DOC facilities. Pursuant to this Court's order of July 11, 2005, (See footnote 11) the matter was scheduled for oral argument on October 11, 2005, for the purpose of addressing the extent to which the various components of the Long Term Plan had been implemented.

II. Standard of Review

Because this matter was initially presented to the Court by prisoners seeking extraordinary relief in the form of a writ of mandamus for the purpose of securing their transfer to DOC facilities, we continue to review this matter pursuant to the standard applicable for such procedural matters. As we held in syllabus point three of Cooper v. Gwinn, 171 W.Va. 245, 298 S.E.2d 781 (1981):

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.

Accordingly, the issues presented by this case will be examined pursuant to this well- ensconced standard of review.

III. Discussion

      In the eyes of the prisoners who initiated this petition and their counsel, the implementation of the various options identified within the Long Term Plan for reducing the severe bed shortage situation has been a dismal failure. Statistically, as of August 2005 the backlog of prisoners being housed in regional jails awaiting transfer to DOC facilities is 1511, (See footnote 12) a number which is significantly higher than the figure of 745 that existed when this litigation commenced. Based on the current backlog, the prisoners report that the regional jails are currently exceeding their capacity by 1181 prisoners. The result of this overcrowding at the regional level is to force inmates to sleep on the floor on mats.

      The prisoners maintain that despite the clear solutions identified in the Long Range Plan for reducing the backlog of prisoners improperly housed in regional jail facilities (See footnote 13) the Respondent DOC and Board of Parole “have adopted practices that are among the primary causes for the skyrocketing backlog of prisoners . . .: unreasonably low rates of granting parole, unreasonably high rates of revocation of good time credits and parole, a refusal to award good time, a refusal to identify appropriate candidates for commutation or early release, and a refusal to take almost any significant steps to reduce the number of prisoners in DOC custody.” As evidence of a backwards slide in addressing the problem, the prisoners note that the current rate of granting parole is lower than in 2000 when this petition was filed.

      In response to the prisoners' claims, the DOC acknowledges the unfavorable increase of prisoners lodged in regional jail facilities but states that “the vast majority of this increase is attributable to delays in construction (See footnote 14) and a higher number of inmate commitments than was anticipated in the plan.” After noting that its admission rate has grown by 33%, (See footnote 15) the DOC asserts that it is without sufficient resources to resolve the problem on its own. Correctly identifying the problem as one which requires both legislative involvement in terms of obtaining the necessary resources to fund construction and renovation projects and the involvement of the executive branch as far as policy decisions regarding parole and sentencing issues, the DOC observes that “unless West Virginia decides to radically alter the consequences for criminal activity, . . . additional prison beds are going to have to be made available.”

      On the issue of parole, the Parole Board indicates that its current grant rate is 37%. (See footnote 16) Because the Long Term Plan used a rate of 41.5% in calculating future prison populations, this resulted in an additional 240 inmates remaining outside the DOC system based on the plan's projected prison population. (See footnote 17) The Parole Board explains further that the objective of reducing technical parole violations did not result in creating additional bed space because the projections relied upon did not take into consideration the fact that parole officers were already giving parolees multiple opportunities to comply with the terms of their respective parole agreements, rather than immediately placing them back into the prison system for technical violations. (See footnote 18)

      Once again this Court finds itself in the unenviable position of “continu[ing] to be the forum for the settlement of the rights of prisoners when it is the duty of the executive and legislative branches of government” to address these issues. State ex rel. Dodrill v. Scott, 177 W.Va. 452, 458, 352 S.E.2d 741, 746 (1986) (emphasis supplied). Over fifteen years ago in Scott we addressed the options available to address the overcrowding issues presented at that time:

Our statutory scheme thus not only contemplates, but mandates, a system in which convicts sentenced to the penitentiary are received by the Department of Corrections and incarcerated in a State penal facility. As a result of the current condition of our state prisons, obedience to this statutory scheme leads inexorably to unconstitutional overcrowding. The safety valve on the system, however, is the Governor's power of reprieve, pardon and parole set forth in W.Va. Const. art. 7, § 11 and W.Va. Code 5-1-16 [1923]. Convicts must be accepted by the State for incarceration; but to bring our overcrowded prisons into constitutional compliance, the Governor may pardon, parole, transfer, or otherwise make constitutional accommodations for those convicts already incarcerated. This leads to socially undesirable consequences. Nevertheless, until the legislature either amends the statutory scheme of sentencing and commitment or appropriates the funds necessary to provide constitutional accommodations for all incarcerated convicts, it is the only permissible course of action open to the Governor.

177 W.Va. at 457, 352 S.E.2d at 745 (emphasis supplied).

Years later in State ex rel. Smith v. Skaff, 187 W.Va. 651, 420 S.E.2d 922 (1992), when addressing the non-appearance of a new prison whose construction had been mandated by this Court, (See footnote 19) we acknowledged both the unfairness and the illegality of housing inmates outside of the DOC. As we stated,

it is extremely unfair for the Division of Corrections to shuffle this problem onto the county and regional jails. Not only are these facilities in no better position to cope with this problem in view of their own fiscal limitations with all the overcrowding and understaffing problems attendant thereto, but it simply is not their responsibility under the law.

Id. at 655, 420 S.E.2d at 926 (emphasis supplied). Accordingly, we held that:

              The statutory scheme of this state places a nondiscretionary duty upon the Division of Corrections to incarcerate those inmates who are sentenced to the penitentiary in a state penal facility operated by the Division of Corrections. Hence, the Division of Corrections is prohibited from lodging inmates in a county or regional jail facility absent the availability of space in these facilities once the inmates have been sentenced to a Division of Corrections facility.

Skaff, 187 W.Va. at 652, 420 S.E.2d at 923, syl. pt. 1.

      Despite this Court's continuing recognition of this pressing issue and multiple directives from this body to remedy the problem, the problem of housing inmates outside the DOC remains. See Sams, 208 W.Va. at 730, 542 S.E.2d at 893 (recognizing in 2000 that “we are still faced with DOC inmates confined to jails that were not designed for incarcerating a prisoner for an extended time”).

      The hard policy decisions demanded by the existence of penal institutions that are at capacity levels with a lengthy list of prisoners awaiting housing should, in the first instance, be made by the Executive and Legislative branches. (See footnote 20) The role of the judicial branch at this juncture remains largely hortatory until violations rise to the level of unconstitutionality. See Dodrill, 177 W.Va. at 461, 352 S.E.2d at 749 (Neely, J., dissenting) (observing that “[s]peech making and hortatory language do not build new prisons: money builds new prisons” and lamenting that the Supreme Court “remain[s] a disembodied voice crying in the wilderness” with regard to correctional reforms). Nonetheless, we are compelled to remind the Executive and Legislative branches of government that action is required to address this continuing and most serious problem of housing inmates outside the DOC system to which they have been committed. (See footnote 21) Our present inclination to defer to those two branches should not be read as limitless patience with continuing violation of the statutory law of the State requiring State prisoners to be housed in Department of Corrections facilities and proven violations of regulations establishing minimum bunking or space standards for prisoners. See Syl. Pt. 4, State ex rel. Berry v. McBride, ___ W.Va. ___, ___ S.E.2d ___, No. 30696 (filed November 30, 2005) (holding that “[t]he constitutional principles of equal protection and due process of law, W.Va. Const. art. 3, sec. 10, require that decision regarding whether an inmate in a State correctional facility should be housed in a single cell must be made pursuant to enforceable standards, policies, and procedures that are based on pertinent medical and other relevant criteria”).

      Because the long-term resolution of the prisoner population issues entails legislative and executive initiatives rather than judicial ones _ issues like defining appropriate sentences, providing alternatives to incarceration, “good time” reforms, parole
granting policies, (See footnote 22) and additional prison construction if appropriate _ it is far preferable for this Court to extend to the executive and legislative branches clear and definite opportunities to formulate these policies without premature judicial involvement. We commend to our sister branches the Long Term Plan developed by the executive offices having direct responsibility for these policies. We call upon the leadership of the executive and legislative branches not to allow these problems to go unaddressed and not to allow those directly responsible for the implementation of such policies to avoid the resolution of the problems identified herein solely by reason of inertia.

      Because we do not find evidence of current unconstitutional deprivations associated with the housing of inmates admitted to the DOC but housed outside the DOC, we cannot issue a writ of mandamus. See, Cooper, 171 W.Va. at 248, 298 S.E.2d at 784, syl. pt. 3. We do, however, urge the Executive and Legislative branches to undertake serious review of their respective roles and responsibilities for contributing to the current housing situation and to act with alacrity, to avoid the day when we or the federal courts are forced to intervene.

Writ denied.

Footnote: 1

See Syl. Pt. 2, Crain v. Bordenkircher, 180 W.Va. 246, 376 S.E.2d 140 (1988) (recognizing jurisdiction over constitutional matters and holding that “[t]his Court has a duty to take such actions as are necessary to protect and guard the Constitution of the United States and the Constitution of the State of West Virginia”).

Footnote: 2

Under the terms of the July 11, 2005, order, the statement was required to be filed by August 30, 2005.

Footnote: 3

The plan is the collective agreement and work of the West Virginia Division of Corrections, the Kanawha County Public Defender Office, and the West Virginia Regional Jail and Correctional Facility Authority.

Footnote: 4

As we first recognized in syllabus point two of Hickson v. Kellison, 170 W.Va. 732, 296 S.E.2d 855 (1982), “[c]ertain conditions of . . . confinement may be so lacking in the area of adequate food, clothing, shelter, sanitation, medical care and personal safety as to constitute cruel and unusual punishment under the Eighth Amendment to the United States Constitution [and Article III, Section 5 of the West Virginia Constitution].”

We do not address in this opinion any asserted failure of the respondents or other parties to properly house persons committed to the Division of Corrections deprives those persons of due process of law or results in unconstitutional deprivations other than cruel and unusual punishment.

Footnote: 5