Preliminary Objections; Demurrer; Inmate Account Deductions; Due Process; Ability to Pay Hearing

Washington v. Pa. Dep’t of Corrections, 2021 WL 6139806 (Pa. Cmwlth. 2021) (unreported), direct appeal, appeal docket 13 MAP 2022.

Thomas Washington (Washington) filed a petition for review in the Commonwealth Court’s original jurisdiction challenging the mandatory deductions of 25% from his inmate account under 42 Pa.C.S. § 9728(b)(5), known as Act 84. Washington argued that the increase to 25% violates his constitutional right to due process. The Department of Corrections (DOC) filed a preliminary objection to Washington’s petition.

The background as set forth by Commonwealth Court is as follows:

In August 2020, Washington filed his [p]etition seeking relief from the amendments to Act 84 that mandated a 25% deduction from his inmate account, which represents an increase from the 20% DOC imposed, without notice or process to challenge the increase. Specifically, he criticize[ed] the lack of any pre- or post-hearing process to show the financial burden imposed by the increase. Washington aver[red] that at the time of his sentencing hearing, “he understood and accepted the 20% deduction was something he could afford and still be able to afford extra food and toilet[ries], also any legal work that may need to be filed that required a filing fee.” He allege[ed] he did not argue mitigating factors or an inability to pay at the time of sentencing because he could afford 20% at that time, but he would have asserted mitigating factors had the amount been 25%.

Slip op. at 2.

Washington argued that the automatic deductions violate his constitutional right to due process. He further cited the Fair Debt Collection Practices Act, 15 U.S. C. §§ 1692-1692p, “and the opportunity that must be afforded before setting the fine amount which includes consideration of the ‘income, financial resources and earning capacity of the defendant upon whom the fines will be imposed.” Slip op. at 2. Washington also asserted that the automatic 25% deductions violated his First, Seventh, and Fourteenth Amendment rights in the United States Constitution and violated the ex post facto clause in the Pennsylvania Constitution.

DOC filed its preliminary objection in the nature of a demurrer arguing that the deductions were authorized by Act 84. DOC contended that “its authority to make deductions from inmate accounts in accordance with a court order is well established.” Slip op. at 3. DOC further maintained that the sentencing hearing “provides adequate pre-deprivation process regarding an inmates’ ability to pay.” Slip op. at 3. With respect to the increase to 25%, DOC argued that the current statute requires the deduction of at least 25%. In Bundy v. Wetzel, 184 A.3d 551 (Pa. 2019) (Bundy I), the Pennsylvania Supreme Court explained that to satisfy due process under Act 84 prior to the 2019 amendment:

[DOC] must, prior to the first deduction: (a) inform the inmate of the total amount of his financial liability as reflected in his sentencing order, as well as [DOC’s] policy concerning the rate at which funds will be deducted from his inmate account and which funds are subject to deduction; and (b) give the inmate a reasonable opportunity to object to the application of [DOC’s] policy to his account. These measures will help protect against errors in [DOC’s] application of its Act 84 deductions policy without significantly impeding its ability to carry out essential functions.

Slip op. at 5 (internal citations omitted). Commonwealth Court noted that the Supreme Court reinforced its holding that prisoners are entitled to notice of certain items and a reasonable opportunity to object before the first Act 84 deduction in Johnson v. Wetzel, 238 A.3d 1172 (Pa. 2020).

Turning to Washington’s due process claim, Commonwealth Court noted that he retains a property interest in the money in his inmate account and, therefore, “any disposition of that interest may only occur in conjunction with due process of law.” Slip op. at 6 (internal quotations omitted). Act 84, as amended, provides that “[DOC] shall make monetary deductions of at least 25% of deposits made to inmate wages and personal accounts for the purpose of collecting restitution . . . and any other court-ordered obligation.” Slip op. at 6 (internal quotations omitted). Commonwealth Court continued, explaining that prior to the amendment to Act 84:

Act 84 did not specify a percentage for deduction, authorizing DOC to make deductions and allowing DOC to establish the amount. DOC implemented a policy regarding such deductions, DC-ADM 005. The policy stated the maximum amount of such deductions shall be 20% of monthly income and inmate account balance for “restitution, reparation, fees, costs, fines, and/or penalties associated with the criminal proceeding . . . provided that the inmate has a balance that exceeds $10.00.” Rohland v. A. Wakefield, Bus. Off. Huntingdon PA, DOC PA Agents Principles, 226 A.3d 1224, 1228 (Pa. 2020) (quoting DOC Collection Policy, DC-ADM 005 at 3-1). There is no dispute that DOC did not provide notice of the increased deduction.

Slip op. at 7. Commonwealth Court noted that it and the Supreme Court have “consistently held that DOC has clear legal authorization under Act 84 to effectuate deductions.” Slip op. at 7. Additionally, in Beavers v. Pennsylvania Department of Corrections, 2021 WL 5832128 (Pa. Cmwlth. 2021) (unreported), the Commonwealth Court concluded that “the increased deduction set forth in [Act 84] did not warrant additional notice or an opportunity to object.” Slip op. at 7-8. Commonwealth Court, therefore, concluded that Act 84, as amended, “does not afford DOC discretion over setting the amount and effectuating the deduction. As a consequence, DOC does not have the authority to exercise its discretion reasonably to discern whether the amount it deducts requires additional due process through an administrative process.” Slip op. at 8. Accordingly, Commonwealth Court discerned no due process claim and sustained DOC’s demurrer.

Commonwealth Court next addresses whether an ability to pay hearing was required. Commonwealth Court noted that “where changed circumstances occur, the inmate is entitled to a hearing regarding his ability to pay the fines after sentencing but before the commencement of any Act 84 deductions.” Slip op. at 8-9. A material change in circumstances includes “a threat of additional confinement or increased conditions of supervision as a result of unpaid financial obligations.” Slip op. at 9 (internal quotations omitted).

Here, the court concluded that Washington did not aver a change in circumstances that warranted an ability to pay hearing, explaining that “Washington did not claim a change in circumstances since his sentencing, other than the fact of his incarceration and attendant reduced income. Specifically, the change in circumstances pled here are the limited income to which Washington has access as an inmate through his pay and from gifts of friends and family, and the increased costs of expenses, including commissary items and legal mail.” Slip op. at 9. Commonwealth Court further explained that Washington did not allege he was at risk of increased incarceration or a loss of legal rights as a result of the increase in the Act 84 deductions. Accordingly, Commonwealth Court sustained DOC’s preliminary objection to Washington’s alleged due process violation.

The Supreme Court granted oral argument on the following questions:

1. Whether the Commonwealth Court erred in holding that the Department of Corrections’ increase in the rate of deduction from inmate accounts to pay court-ordered costs and restitution pursuant to 42 Pa. C.S. § 9728(b)(5)(i) could be applied to Mr. Washington without notice or an opportunity to be heard?

2. Whether the Commonwealth Court erred in holding that the Department of Corrections lacks discretion to alter the amount of the deduction under 42 Pa. C.S. § 9728(b)(5), notwithstanding that the deprivation of property triggers principles of due process?


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