JOHN C. GARDINER vs. COMMISSIONER OF CORRECTION & another. [Note 1]

ARMSTRONG, J. On July 9, 1965, while serving a sentence for armed robbery, the plaintiff escaped from the State prison camp at Warwick. On May 8, 1973, he was apprehended and was subsequently tried and convicted for the crime of escape from a prison camp. G. L. c. 127, Section 83C. Pursuant to Section 83B [Note 2] of that chapter, the plaintiff forfeited 213 days of good conduct deductions which he had accumulated prior to the escape. On September 18, 1974, the plaintiff requested that the defendant Commissioner denied the request on the ground that under Section 83B he had no power "to consider restoration of the 213 days good conduct deductions that you forfeited by escaping . . .."

The plaintiff then commenced this action for a judicial determination that the Commissioner was authorized to restore the good conduct deductions. The judge who heard the action in the Superior Court on an agreed statement of facts ruled that the Commissioner lacked that authority, and the plaintiff appealed.

Section 83B explicitly required the forfeiture of the plaintiff's accumulated good time deductions. It makes no provision for restoration thereof. But the plaintiff argues that such a provision is seen to be implicit in Section 83B when it is compared with Section 129 of the same chapter.

Unlike Section 83B, which applies only to prison camps, Section 129 deals with correctional institutions generally, including prison camps. Section 129 [Note 3] authorizes good conduct deductions from sentences, but contains two provisions by which such deductions may be lost. The first relates to infractions of prison rules: "If a prisoner violates any rule of his place

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of confinement, the commissioner . . . , upon the recommendation and evidence submitted [by the officer in charge of the institution where the prisoner is confined] . . . shall decide what part, if any, of such good conduct deduction . . . shall be forfeited by such violation, and may likewise determine, in the event of the prisoner's subsequent good conduct, whether any or all of such deduction shall be restored." The second relates to convictions for criminal offenses: "If, during the term of imprisonment of a prisoner confined in a correctional institution of the commonwealth, such prisoner shall commit any offense of which he shall be convicted and sentenced, he shall not be entitled to any deductions hereunder from the new sentence or sentences of imprisonment." [Note 4]

The plaintiff first argues that the word "forfeit," used both in Section 83B and in the rules infractions portion of Section 129, is capable of being understood either in the sense of a permanent loss or in the sense of loss with a possibility of restoration; and that, since it has been held that the two sections are to be treated as using identical language in a uniform sense (Wood v. Commissioner of Correction, 363 Mass. 79 , 82, fn.5 [1973]), and since Section 129 uses the word "forfeit" in the sense of loss with a possibility of restoration, the same meaning must be given to the word "forfeit" in Section 83B. The argument is patently unsound, because the possibility of restoration is not derived from the word "forfeit," but from Section 129's explicit provision to that effect; and

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the absence of similar language in Section 83B makes it clear that the Legislature's intention was precisely contrary to the plaintiff's first argument.

The plaintiff next argues that, although his escape was a crime, it was also a breach of prison rules, [Note 5] thus bringing the offense within the rules infraction portion of Section 129, which permits restoration of forfeited good conduct deductions. This reasoning would effect the anomaly that one whose conduct violates both statute and rule would be accorded greater leniency than one who violates only a statute. It would also attribute to the Commissioner of Correction a power to modify statutes by administrative regulation. The argument is without merit.

The plaintiff's final argument is that the description in Section 83B of the offense of escape differs from the description in Section 83C [Note 6] of the crime of escape, and from this he concludes that Section 83B must be referring to the "institutional infraction of escape" rather than the crime of escape. But we think that the correct interpretation of the pertinent words in Section 83B ("a prisoner [who] escapes or attempts to escape from a prison camp") is that they refer to one who commits either of the two crimes (escape and attempt to escape) which are described in Section 83C. [Note 7] The operation of Section 83B does not depend on the existence of an administrative regulation prohibiting escape. None has been mentioned in the cases

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which have arisen under Section 83B. [Note 8] Moreover, a contrary conclusion would avail the plaintiff naught, because the more particular provision made for an institutional infraction of escape from a prison camp in Section 83B would clearly prevail over the general provisions of Section 129 relative to rules infractions of any type in any prison. There is nothing inconsistent or unharmonious about a statute which provides a severe penalty for particular conduct which would warrant only a lesser penalty under a general statute in its absence. Nor do we perceive any ambiguity in Section 83B which would justify invoking the principle that penal statutes are to be strictly construed.

Judgment affirmed.

This case was argued before a panel comprised of Justices Keville, Goodman and Armstrong. The other Justices took part in the decision pursuant to Mass.R.A.P. 24(a), 365 Mass. 872 (1974).

GOODMAN, J. (dissenting, with whom Brown, J., joins). The substance of the plaintiff's contention is that G. L. c. 127, Section 83B, [Note Dissent-1] must be read together with the fourth sentence of the first paragraph of G. L. c. 127, Section 129, which authorizes the Commissioner to restore forfeited good conduct deductions "in the event of the prisoner's subsequent good conduct." [Note Dissent-2] From our examination of these provisions, and

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the legislative course of each of the statutes in which they are respectively contained, we conclude that the plaintiff is correct and that the judgment should be reversed. [Note Dissent-3]

The prison camp escape provision, as it now reads (note 1, supra), was enacted in 1951 as part of a comprehensive program for the establishment of prison camps in State forests. St. 1951, c. 755, inserting Sections 83A-83D, inclusive, in chapter 127 of the General Laws. [Note Dissent-4] At that time Section 129 (as rewritten by St. 1948, c. 450 -- "An Act relative to deductions from maximum sentences of prisoners") contained substantially the same provision for the administrative forfeiture of good conduct allowances as is presently in effect in that section, except that it made no provision for their restoration for subsequent good conduct (see note 2, supra). Section 129 also then provided that: "If during the term of

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imprisonment . . . such prisoner shall commit any offense of which he shall be convicted and sentenced, all deductions hereunder from the former sentence of imprisonment . . . shall be thereby forfeited" (herein referred to as the 1948 conviction forfeiture provision).

In 1955 the Legislature enacted a thoroughgoing reorganization of the penal system by St. 1955, c. 770, entitled "An Act relative to the penal and reformatory institutions of the commonwealth." See 1955 Ann. Surv. of Mass. Law, Sections 12.1-12.13. It was based on a study of the entire correction system by a commission of penologists, headed by President Wessell of Tufts College. 1955 Sen. Doc. No. 750, "Report and Recommendations of the Governor's Committee to Study the Massachusetts Correctional System." The Wessell committee had been appointed soon after a four-day rebellion in Charlestown prison and was concerned with the problems of prison discipline. The study points out that good conduct allowances "are useful for institutional discipline, using the term discipline in the proper sense, that is, as an incentive to good morale, rather than in a negative sense, discipline maintained by punishment" (at 71), and further that "[t]he granting or denial of good-time allowances is a matter of institutional management and discipline. It should be controlled within the Department of Correction . . ." (at 73). In accordance with this principle the Wessell committee recommended that the provision for automatic loss of good time upon conviction for an offense while in prison (the 1948 conviction forfeiture provision) be eliminated entirely; and this recommendation was embodied in the revised draft of Section 129 of c. 127 submitted by the Wessell committee (see 1955 Sen. Doc. No. 750, at 142-143), in the draft of the Special Committee on the Reorganization of the Correctional System of the House of Representatives to which the Wessell report was referred (see 1955 House Doc. No. 3098, at 40-41), and in the ultimate legislation (St. 1955, c. 770, Section 66), which rewrote Section 129. The draft of the House committee bill and the ultimate legislation (though not the original draft of the Wessell committee bill) also added, to the provision in Section 129 for the administrative

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forfeiture of good conduct deductions, a further provision for their restoration for "subsequent good conduct" (see note 2, supra). 1955 House Doc. No. 3098, at 41.

However, in spite of the elimination of the 1948 conviction forfeiture provision, both drafts and the ultimate legislation let stand the prison camp escape provision in Section 83B (see note 1, supra). We do not view this as an inadvertance, [Note Dissent-5] and it need not be regarded as an inconsistency. The prison camp escape provision -- unlike the 1948 conviction forfeiture provision for ministerial forfeiture because of prison offenses -- did not require a conviction and sentence. (Contrast G. L. c. 127, Section 83C, note 4, supra.) We note the characterization of the Section 83B prison camp escape provision in the Attorney General's brief (at 2) in Gregoire, petitioner, 355 Mass. 399 (1969), which dealt with the relationship between the prison camp escape provision and a 1963 provision (St. 1963, c. 535) with reference to convictions for offenses while in prison: -- "Section 83B punishes escapes or attempted escapes as an infraction of rules whether or not a conviction is obtained, while section 129 punishes any act for which a conviction is secured . . ." (emphasis in original). See Commonwealth v. Sneed, 3 Mass. App. Ct. 33 , 34 (1975), which deals with the situation in which "conviction of escape . . . follow[s] the imposition of a forfeiture of good time arising from the same occurrence," which forfeiture is administrative in nature. See cases cited. Compare Munkley v. Hoyt, 179 Mass. 108 , 111 (1901).

Nor are administrative proceedings to determine whether an escape has occurred necessarily perfunctory; they may

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require factual determinations of some complexity. See Commonwealth v. Gosselin, 1 Mass. App. Ct. 849 (1973), S.C. 365 Mass. 116 (1974). And at least since Wolff v. McDonnell, 418 U.S. 539, 557 (1974), such proceedings may also require the application of procedural safeguards comparable to those applicable to the administrative forfeiture provisions of Section 129. See Commonwealth v. Druken, 356 Mass. 503 , 506-509 (1969).

The application of the provision for administrative restoration of good time in Section 129 to the good time administratively forfeited upon proceedings under Section 83B seems to us to place the prison camp escape provision in the context of the Wessell committee's recommendation for greater administrative flexibility in the administration of good time; and thus the failure by the Wessell committee to make any change in the Section 83B provision becomes understandable. Indeed, when the 1948 conviction forfeiture provision was reinstated by St. 1959, c. 445 (see 1963 Ann. Surv. Mass. Law Section 11.3), no change was made in the prison camp escape provision (note 1, supra). Nor was any change made in that provision in 1963 when St. 1963, c. 535, eliminated the conviction forfeiture provision and substituted for it a provision that the only entitlement lost would be from the new sentence -- though the 1963 statute was based on the recommendations of the Department of Correction (1963 House Doc. Nos. 20, 21), made together with recommendations for changes in good time allowances for inmates of prison camps. See 1963 House Doc. No. 22, which became G. L. c. 127, Section 129C, by St. 1963, c. 164 ("An Act providing a further deduction of sentence for good conduct while confined at a prison camp").

That the forfeited deductions which are subject to restoration are directed by Section 83B, rather than by Section 129, is not particularly significant. Indeed, additional good time allowances for prison camp inmates are provided in the separate provision of G. L. c. 127, Section 129C; and it would surely be anomalous to hold that, because that provision was separate from the provisions of Section 129, the administrative forfeiture and restoration provisions of Section 129 have no application

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to these additional good time allowances. See Commonwealth v. Hayes, 372 Mass. 505 , 508-512 (1977).

Accordingly, we view the "such deductions" which may be restored in Section 129 as referring not only to those administratively forfeited in Section 129, but also to those administratively forfeited in Section 83B.

This comports with the teaching of Gregoire, petitioner, 355 Mass. at 400, that the statutes be read together as a harmonious system. See Lembersky v. Parole Bd. of the Dept. of Correction, 332 Mass. 290 , 292-293 (1955); Wood v. Commissioner of Correction, 363 Mass. 79 , 82, fn.5 (1973). It also comports with the more general rule that penal statutes be strictly construed in favor of a defendant. Wood v. Commissioner of Correction, 363 Mass. at 81, and cases cited.

BROWN, J. (dissenting, with whom Goodman, J., joins). I concur in my brother's dissent for the reasons given therein. The 1955 amendment to G. L. c. 127, Section 129, St. 1955, c. 770, Section 66, was intended by the Legislature to give prison officials more flexibility in disciplining prisoners. Construing G. L. c. 127, Section 83B, in harmony with G. L. c. 127, Section 129 (Gregoire, petitioner, 355 Mass. 399 , 400 [1969]), it is our view that whether the prisoner had his good time taken away under either Section 83B or Section 129, the Commissioner must have the same discretion to partially or fully restore the good time. This more humane approach (see Brown v. Commissioner of Correction, 336 Mass. 718 , 721 [1958]) would have the salubrious effect of providing greater incentive for good behavior on the prisoner's part while still providing a sufficient deterrent for escape. See Wood v. Commissioner of Correction, 363 Mass. 79 , 83 (1973).