PLN rarely reports unpublished court rulings but we do so occasionally when such rulings have a news value to readers or state a novel legal theory. This is such a case. A superior court in Norfolk County Massachusetts has held that filing criminal charges against a prisoner confined to disciplinary segregation for the same offenses violates the state and federal constitutions' ban on double jeopardy. Recently the federal courts have been enlarging the scope of the double jeopardy clause. This has been most notable in the area of forfeitures where courts have held that criminal conviction and civil forfeiture of property constitute double jeopardy. See: PLN, Vol. 6, No. 4.

Caspar Forte was infracted by the Massachusetts DOC and accused of blocking a guard from exiting a unit and assaulting two other guards who were attempting to restrain another prisoner. Forte was found guilty at a prison disciplinary hearing and sentenced to 28 months in the Department Disciplinary Unit (DDU) and 30 days of isolation. Forte was later indicted by the state on two counts of assault and battery on a prison guard. The indictment was based on the same incident as the disciplinary hearing. Forte filed a motion to dismiss the indictment contending that his sentence to the DDU was punishment for the purposes of double jeopardy. The court agreed and dismissed the indictment.

In his eight page ruling Judge Harold Flannery cited the Massachusetts statutes which hold that the purpose of the DDU is to punish and deter prisoners for misconduct. "The double jeopardy clause of the United States Constitution protects against three distinct abuses: a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. United States v. Halper, 109 S.Ct. 1892, 1897 (1989). It is the third of these protections at issue in this case."

In Halper the supreme court held that civil as well as criminal sanctions constitute punishment when the sanction as applied in the individual case serves the goal of punishment. "Punishment serves the twin aims of retribution and deterrence. .. which are not legitimate nonpunitive governmental objectives."

The court noted that a long line of state and federal cases across the nation have held that administrative discipline in prisons combined with criminal prosecution for the same offense does not constitute double jeopardy. See: United States v. Rising, 867 F.2d 1255 (10th Cir. 1989). While Massachusetts common law principles of double jeopardy may provide greater protection than required under the state or federal constitutions, in the past Massachusetts's state courts have followed other jurisdictions in holding that prisoners may be administratively sanctioned and criminally punished for the same offense.

The court held that the supreme court's ruling in Halper and the creation of the DDU to punish prisoners required it to dismiss the indictments in this case. "On the basis of these developments I find that an administrative sentence to the DDU plus a criminal prosecution for the same offense violates the prohibition against double jeopardy. While neither unmindful nor unsympathetic to the need for prison administrators to maintain order and discipline, which may include swift and sure punishment for major infractions of the rules, this need must be balanced against and is ultimately outweighed by constitutional and common-law protections against being punished more than once by the same sovereign for the same offense. The prison administration is not without recourse; but it must choose between administrative and judicial punishment."

Since Forte has already been sentenced to the DDU through the prison administrative process, a criminal prosecution violates his rights against double jeopardy. Therefore the motion to dismiss will be allowed." See: Commonwealth v. Forte, Norfolk Superior Court Criminal Action No. 97584. Dated March 8, 1995.

Readers should remember that this is an unpublished state court ruling that cannot be cited for purposes of precedent. Its main usefulness at this point will be to Massachusetts prisoners. Prisoners in other jurisdictions litigating this issue may want to try arguing this issue based on Halper knowing that at least one court has accepted this argument. Our thanks to Brendan McGuinness for sending us the ruling so we could inform our readers.

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