Part II
Constitutional Law of Corrections
Chapter 11 – Fifth and Fourteenth
Amendments – Due Process –
Inmate Discipline

Introduction: Chapter looks at how due
process provisions of the Constitution
protect inmates against unfair actions
by the government
Chapter Outline



The Fifth and Fourteenth Amendments
The Importance of Inmate Discipline
How Prison Discipline Works

Wolff v. McDonnell
Sandin v. Conner
Baxter v. Palmigiano
Superintendent v. Hill
Hewitt v. Helms

Confidential Informants




The Fifth and Fourteenth
Amendments

Fourteenth Amendment – “nor shall any
State deprive any person of life, liberty,
or property, without due process of law;
nor deny to any person within its
jurisdiction the equal protection of the
laws”

Protects against state actions that would
take away the life, liberty, or property of
its citizens
The Fifth and Fourteenth
Amendments: cont’d

Fifth Amendment – “No person shall be
. . . deprived of life, liberty, or property,
without due process of law”

Protects citizens against federal
government actions that would take away
life, liberty, or property
The Fifth and Fourteenth
Amendments: cont’d

Two inquiries in due process cases

Whether a person has been deprived of
life, liberty, or property

Person claiming violation of due process
clause must be able to show that life, liberty,
or property has been taken or is adversely
affected
The Fifth and Fourteenth
Amendments: cont’d

If there was such deprivation, whether
procedural protections (due process) were
provided – was there “fundamental
fairness”
The Fifth and Fourteenth
Amendments: cont’d


Generally speaking, fairness refers to
providing steps to ensure the facts are as
claimed by the government, and that the
action taken is authorized by law
The more serious the loss to the person, the
more due process that must be provided by
the government
The Importance of Inmate
Discipline

Inmate discipline: most frequently
contested and litigated type of action
involving inmates

Often, inmate discipline is also the most
common subject of inmate grievances
The Importance of Inmate
Discipline: cont’d

Disciplinary action may result in




An inmate’s release being delayed
An inmate losing his property, or property
in his cell, or being ordered to pay for
damage he did to the property of another
A change in the inmate’s housing status
A loss of such privileges as recreation or
visiting
The Importance of Inmate
Discipline: cont’d


The disciplining of inmates is essential
for the safety and orderly running of
the prison, to provide a safe and secure
environment for the inmates
To be most effective, discipline must be
done fairly and evenhandedly, and in
accordance with written rules
How Prison Discipline Works


Important aspect of discipline system –
firm but fair
Inmate should receive information on
the disciplinary system during
orientation
How Prison Discipline Works:
cont’d

Central to the orientation procedure,
and underlying inmate discipline, is a
goal of instilling in inmates a sense of
responsibilities

This goes with the freedoms and liberties
that the inmate may receive while in prison
How Prison Discipline Works:
cont’d

Rights and responsibilities – examples:


You have the right to expect that as a
human being you will be treated
respectfully, impartially, and fairly by all
personnel
You have the responsibility to treat others,
both employees and inmates, in the same
manner
How Prison Discipline Works:
cont’d


You have the right to be informed of the
rules, procedures, and schedules
concerning the operation of the institution
You have the responsibility to know and
abide by them
How Prison Discipline Works:
cont’d


You have the right to freedom of religious
affiliation, and voluntary religious worship
You have the responsibility to recognize
and respect the rights of others in this
regard
How Prison Discipline Works:
cont’d

You have the right to health care, which
includes nutritious meals, proper bedding
and clothing, and a laundry schedule for
cleanliness of the same, an opportunity to
shower regularly, proper ventilation for
warmth and fresh air, a regular exercise
period, toilet articles and medical and
dental treatment
How Prison Discipline Works:
cont’d

It is your responsibility not to waste food,
to follow the laundry and shower schedule,
to maintain neat and clean living quarters,
to keep your area free of contraband, and
to seek medical and dental care as you
may need it
How Prison Discipline Works:
cont’d


You have the right to visit and correspond
with family members, and friends, and to
correspond with members of the news
media in keeping with Bureau rules and
institution guidelines
It is your responsibility to conduct yourself
properly during visits, not to accept or pass
contraband, and not to violate the law or
Bureau rules or institution guidelines
through your correspondence
How Prison Discipline Works:
cont’d


You have the right to unrestricted and
confidential access to the courts by
correspondence (on matters such as the
legality of your conviction, civil matters,
pending criminal cases, and conditions of
your imprisonment)
You have the responsibility to present
honestly and fairly your petitions,
questions, and problems to the court
How Prison Discipline Works:
cont’d


You have the right to legal counsel from an
attorney of your choice by interviews and
correspondence
It is your responsibility to use the services
of an attorney honestly and fairly
How Prison Discipline Works:
cont’d

You have the right to participate in the use
of law library reference materials to assist
you in resolving legal problems. You also
have the right to receive help when it is
available through a legal assistance
program
How Prison Discipline Works:
cont’d

It is your responsibility to use these
resources in keeping with the procedures
and schedule prescribed and to respect the
rights of other inmates to the use of the
materials and assistance
How Prison Discipline Works:
cont’d

You have the right to a wide range of
reading materials for educational purposes
and for your own enjoyment. These
materials may include magazines and
newspapers sent from the community, with
certain restrictions
How Prison Discipline Works:
cont’d

It is your responsibility to seek and utilize
such materials for your personal benefit,
without depriving others of their equal
rights to the use of this material
How Prison Discipline Works:
cont’d

You have the right to participate in
education, vocational training and
employment, as far as resources are
available, and in keeping with your
interests, needs, and abilities
How Prison Discipline Works:
cont’d

You have the responsibility to take
advantage of activities which may help you
live a successful and law-abiding life within
the institution and in the community. You
will be expected to abide by the
regulations governing the use of such
activities
How Prison Discipline Works:
cont’d

You have the right to use your funds for
commissary and other purchases,
consistent with institution security and
good order, for opening bank and/or
savings accounts, and for assisting your
family
How Prison Discipline Works:
cont’d

You have the responsibility to meet your
financial and legal obligations, including,
but not limited to, court-imposed
assessments, fines, and restitution. You
also have the responsibility to make use of
your funds in a manner consistent with
your release plans, your family needs, and
for other obligations that you may have
How Prison Discipline Works:
cont’d

All staff must be trained in disciplinary
procedures


Offense may be committed in the presence
of any staff member
Training on inmate discipline starts with
the prison’s “criminal code”

List of offenses inside the prison and the
list of sanctions that may be imposed
How Prison Discipline Works:
cont’d

Prison disciplinary offenses are of different
categories of severity



Offenses can range from the most serious –
such as murder and assault – to the less serious
– such as malingering
Can also include offenses – such as escape and
possession of contraband – that are peculiar to
prisons
Sanctions are based on the severity of the
offense committed
How Prison Discipline Works:
cont’d


Most serious misconduct is usually reported
to parole authorities (in those jurisdictions
with parole)
Examples of other sanctions





Loss of “good time”
Placement in disciplinary confinement status
Loss of property, or privileges revoked
Loss of preferred housing or job
Transfer to a higher security prison
How Prison Discipline Works:
cont’d

There are specific procedures for
determining whether the inmate
committed the offense, or not, and, if
yes, which sanctions to impose


Inmate receives a written copy of the
charges prior to the hearing
Inmate is brought before a disciplinary
authority, which may be a single person or
a committee
How Prison Discipline Works:
cont’d



Inmate may have a person assist him at
the hearing (ordinarily not an attorney or
person from outside the prison) or may
appear without assistance
Inmate may present his version of what
occurred
Hearing officer or committee examines the
evidence and decides whether the inmate
did the act charged, or not
How Prison Discipline Works:
cont’d




If it is decided that the inmate did the act, the
disciplinary authority decides what sanction(s)
to impose
Often the disciplinary authority decision may be
reviewed by a reviewing authority at the prison
or at a higher level of the agency
Some jurisdictions allow an inmate to appeal an
adverse decision through the grievance
procedure
Some jurisdictions provide for automatic review
of all disciplinary actions, at least at the higher
degree of severity
Wolff v. McDonnell (1974)

Leading case on inmate discipline


Prior to decision, lower courts had diverged
widely on whether inmates were entitled to
due process protections, and, if so, what
those requirements were
Wolff provided the constitutional standards
Wolff v. McDonnell : cont’d

In Wolff, Nebraska inmate filed a
Section 1983 action claiming that
disciplinary procedures did not comply
with the due process requirements

The inmate was found guilty of serious
misconduct – such conduct could result in
loss of “good time” and placement in a
disciplinary cell
Wolff v. McDonnell : cont’d



A loss of good time had to be reported to,
and considered by parole authorities
State argued discipline procedure was a
matter of internal policy, and raised no
constitutional issues
Inmate argued loss of his good time credits
seriously affected his liberty, and required
due process protections
Wolff v. McDonnell : cont’d

Court rejected claim inmate had no due
process rights but recognized that there are
special problems in prison administration that
must be balanced with rights claimed by the
inmate

Due to the nature of prisons, the Court said
there would be “great unwisdom” in placing the
disciplinary procedures in an “inflexible
constitutional straitjacket that would necessarily
call for adversary procedures typical of the
criminal trial”
Wolff v. McDonnell : cont’d

Court then set forth the minimal due
process standards - which were far less
than those for criminal trials – that an
inmate must receive in cases where the
inmate faces serious sanctions
Wolff v. McDonnell : cont’d



Advance written notice of the charges
Some time, no less than 24 hours, to prepare
for the appearance before the disciplinary
authority
The right to call witnesses and to present
documentary evidence (unless to do so would
be hazardous to institutional safety or
correctional goals)
 Confrontation and cross-examination seen as
presenting special hazards in a prison setting
and were not required
Wolff v. McDonnell : cont’d




A right to assistance, for illiterate inmates or in
complex cases
A written statement of the findings, with the
evidence relied on and the reasons for the
action taken
There is no requirement to provide an appeal
process, or to provide legal counsel
These procedural protections are not required
for lesser penalties such as “loss of privileges”
Sandin v. Conner (1995)


Revisits the issue of when state prison
regulations afford inmates a liberty interest
protected by the due process clause
Hawaii inmate was charged with serious
misconduct, found to have committed the
charge and was “sentenced” to 30 days
disciplinary segregation

Inmate was not allowed to call witnesses
Sandin v. Conner: cont’d

Court held the purpose of prison discipline is to
effectuate prison management and prisoner
rehabilitation goals
 That prison discipline ordinarily does not
impose any sanction or retribution beyond
that contained in the sentence being served,
and
 As long as it does not add on to that
sentence, or go beyond the conditions
contemplated in that sentence, the
disciplinary action does not create a liberty
interest
Sandin v. Conner: cont’d


Court held inmate’s placement in
disciplinary segregation (a common
sanction in prison cases) did not present
the type of “atypical, significant deprivation
in which a state might conceivably create a
liberty interest”
If punishment extends the duration of
sentence, some due process would be
required
Sandin v. Conner: cont’d

Not the case in Sandin – placement in
segregated confinement for prison
misconduct was within the range of
confinement to be “normally expected for
one serving an indeterminate sentence of
30 years to life”
Baxter v. Palmigiano (1976)



Court (disagreeing with two courts of appeals) held
that counsel did not have to be provided at prison
disciplinary hearings, even when the misconduct
amounted to criminal misconduct
In another issue, Ninth Circuit had required
reasons in writing to an inmate if inmate was
denied the right to cross examine or confront
witnesses against him
The Supreme Court reversed, affirming its holding
in Wolff - written reasons while recommended,
were not required, and it made no such
requirement for confrontation and crossexamination
Baxter v. Palmigiano (1976):
cont’d


On a new issue, the Court held that an
inmate in a disciplinary proceeding can be
advised that his silence can be used against
him, but that the silence is not enough by
itself to find he did the prohibited act, that
there must be other evidence
If the inmate is ordered to testify, he must be
given immunity from use of that testimony in
a later criminal proceeding
Superintendent v. Hill (1985)

Inmate was found to have committed
an assault based on testimony from a
prison officer


Officer said he heard noise, investigated,
and found an assaulted inmate
Officer saw Hill and two other inmates
running away, no one else in area
Superintendent v. Hill: cont’d



Officer charged the three inmates with
assault, and the disciplinary authority
found the inmates “guilty”
Inmate lost 100 days of good time and
received 15 days in isolation
Inmate filed suit – state court found
insufficient evidence to support finding;
state’s Supreme Judicial Court affirmed
Superintendent v. Hill: cont’d

Supreme Court reversed – holding the
amount of evidence required to support
a finding that an inmate committed
misconduct is “some evidence”
Hewitt v. Helms (1983)

Inmate was moved from his prison cell and
placed in restrictive confinement for
questioning following a major disruption at
the state prison


Received a minimal hearing some five days later
The question was whether inmate was
entitled to due process prior to this cell
movement, and if so, what process was due
Hewitt v. Helms: cont’d


Court held Constitution did not create any
liberty interest
But the state rules did, through their
explicit mandatory language for placement
in prison segregation

This analysis was overruled by the Court’s
decision in Sandin V. Conner (1995)
Hewitt v. Helms: cont’d

In Hewitt, the Court held the small amount
of procedural protection provided by state
rules was sufficient

All that was required: some notice of the
charges; an opportunity to present his views
to the person charged with deciding whether
to transfer the inmate; and the prison
decision-maker reviewing the charges and
evidence, including the inmate’s statement
Confidential Informants


Supreme Court has not addressed
The concern is to ensure the fairness of
the prison proceeding based on
informant evidence

Necessary to protect against an inmate
lying, or pointing a finger at another
person with whom he wants to get even
Confidential Informants:
cont’d


Lower courts have held that hearing officials,
at a minimum, must satisfy themselves of the
reliability of the information provided by any
inmate informants
Often, the discipline authority is required to
make a statement in the record that
informant information has been used as
evidence and that the authority is satisfied
that the information is reliable
Confidential Informants:
cont’d

The reliability assessment may be based on:



A review of the background and the
circumstances that support reliability by the
hearing officer himself
A report from an investigative officer who
presents his reasons for believing the inmate
The informant’s reliability may be shown by
reliability established in other situations: by
detailed accounts only known by someone who
was there, or by corroborative evidence
Confidential Informants:
cont’d

Assessment about the reliability of the
inmate informant is done out of the
presence of the charged inmate