CORRECTION OFFICIALS SING:
WHO'S AFRAID OF BIG BAD WOLFF
M I C H A E L P, DAVIS
CORRECTION OFFICIALS SING: WHO'S AFRAID OF BIG BAD WOLFF
I. Introduction
In an era of increased liberalization of prisoner rights, the United States
Supreme Court is traveling to the beat of a different drummer. The current Court,
in keeping with it's policy of limiting the liberal trends of late in the area of
criminal justice, has limited the process due persons incarcerated under legal
authority. In two c a s e s handed down by the Court on June 25, 1976, the Court
effectively put an end to the expansion of due process signaled in Wolff v.
McDonnell, 418 U.S. 539,94 S . C t . 2963, 41L Ed 2d 935 (1974). This paper is
an analysis of Montanye v. Haymes, 44 U . S . L . W . 5 05 1,
49 L.Ed. 466 (1976); and Meachum v. Fano, 44 U . S . L . W . 5053
, 49 L.Ed. 2d 451 (1976).
_U. S.
,
U.S.
After analyzing these c a s e s this paper will
attempt to compare them to recent prior Supreme Court d e c i s i o n s , and will attempt
to predict future trends in the area.
II. Montanye
In Montanye , the respondent Rodney R. Haymes was removed from his
assignment as the inmate law library clerk, at the Attica Correctional Facility in
New York. He was removed during the morning of June 7, 1972. That afternoon,
prison officials confiscated a document prepared by him which he was circulating
among other inmates. The document was a letter written to federal judge John T.
Curtin. In effect, each of the 82 signatories to the letter were claiming deprivation
of legal a s s i s t a n c e because of the removal of Haymes and John Washington,
another inmate clerk, from the law library. The following day, June 8,
authorities informed Haymes that he was to be transferred to Clinton Correctional
Facility. Both institutions are maximum security units. Haymes was transferred
June 9 , 1976 to Clinton. Haymes lost no good time, was not segregated from
other inmates, lost no other privileges, and suffered no other disciplinary
measures as a result of this transfer.
Respondent Haymes filed a petition in the U.S. District Court under
42 U . S . C . § 1983 and 28 U . S . C . § 1343. Haymes complained that the seizure
of the document violated a prison Administrative Bulletin., and his federal
constitutional right to petition the court for redress of grievances. Haymes also
claimed his removal to Clinton was to prevent his pursuing his rights in Court.
In response, correctional officials contended that Haymes' removal was for his
constant disregard of law library rules, that only one of the 82 inmates who
signed the document had ever made official request for legal a s s i s t a n c e , and that
the document taken from Haymes was circulated in disregard of the prison rule
forbidding legal a s s i s t a n c e without approval of the Superintendent. Montanye,
Supra at 5051, 5052 .
This District Court dismissed the action. The court found the rule against
providing legal a s s i s t a n c e without consent was reasonable, and that Haymes'
transfer did not violate his rights. Montanye, Supra at 5 052.
The Court of Appeals for the Second Circuit reversed the district Court.
United States v. Montanye, 505 F. 2d 977 (2nd Cir. 1974). Chief Judge Kaufman
based the reversal on a procedural error but also examined the American penal
system. The Court found that the District Court should not have entered a summary
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judgment because there were genuine i s s u e s a s to material facts: whether the
transfer was for punishment and whether the effects of the transfer were sufficientlyharsh to make denial of a hearing a violation of due p r o c e s s . Montanye, Supra
at 979.
The Court made a distinction between administrative transfers and
"disciplinary" transfers. Recognizing the need for administrative discretion and
not wishing to "straight-jacket" prison officials, the Court left open the area of
"administrative" transfers. The Court found administrative transfers are the type
that generally are based on reasons "extrinsic to the inmate's behavior, and the
decision whether to transfer may not be advanced in any way by providing notice and
a hearing to the transferee. Moreover, although the dislocation may be burdensome, the need to avoid more general harm may outweigh his individual claim"
Id. at 9 80.
"Disciplinary" transfers, however, fall under different rules, ( I . e . rules
of fair play and justice), according to the Court. When the transfer is a form
of punishment, fairness demands that the transferee be given an "opportunity to
establish that he is not deserving of such handling. This opportunity should be
represented by an impartial hearing". _Id. at 980. The Court at this point, relied
on Wolff.
It also pointed out that where other punitive sanctions are involved,
the hearing is provided. The Court details the New York procedure "to emphasize
the disparity in treatment accorded inmates punished thereunder, and those
summarily transfered for rule infractions." Id_. at 981.
Finally, the Court examined the adverse consequences to determine if they
were indeed sufficiently adverse to merit relief. The mere fact of dislocation is
sufficient to render the transfer violative of due process in the opinion of the Court.
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The b a s i s of this conclusion was illustrated by the facts of this c a s e . Haymes
was removed several hundred miles from .his family and his inmate friends;
he was forced to adjust to a new environment under the cloud of being labeled a
trouble maker; his contactswith his counsel were made more difficult; administrative segregation was imposed on him; he lost personal belongings, and
he was deprived of rehabilitative programs in which he had been involved.
Finally, the Court noted the possible effect this action might have on chances
for parole . Id_at 98 1- 82 .
The United States Supreme Court reversed the Second Circuit relying
upon their decision in Meachum . Montanye, Supra, at 5 052.
The holding,
which will be analyzed at a later point, was that there must be a justifiable
expectation rooted in state law that the inmate will not be transferred except
in certain i n s t a n c e s . Further, that as long as the conditions of confinement are
within the sentence imposed upon the inmate and are not otherwise violative of
the consitution, there is no requirement of a due process hearing whether or
not the transfer may be labled disciplinary or punative. Id, at 5052 . There
was no such expectation created under New York law, and under New York law
the transfer of inmates is not conditional upon or limited to the occurrence of
misconduct._Id at 5053.
In his d i s s e n t , Mr. Justice Stevens agrees with the Court that there has
been no allegation that the transfer has caused Haymes a grievious loss entitling
him to a hearing, but he contends that the motivation for the transfer, because
of its impact on the inmates residium of protected liberty, should determine whether
a deprivation has occurred. He also finds an inconsistency in the procedure used
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by the majority in reversing the Second Circuit.
III. Meachum
Meachum was originally brought under 42 U . S . C . 1983, seeking declaratory,
injunctive, and compensatory relief, by seventeen inmates of Massachusetts
Correctional Institution, Norfolk. Norfolk was a medium security state prison.
The b a s i s of the inmates' petition was that they had been reclassified into
substantially more adverse conditions of confinement because of specific conduct,
without due process of law. Because the implications of this decision are far
reaching, this writer sets out the full findings of fact a s stated by the trial court.
Findings of Fact
In the fall of 1974, there was a period of unrest amont the
inmates of M . C . I . , Norfolk. From August 13, 1974, through
October 23, 19 74, there were nine fires in the institution, thought
to have been set which were serious enought to require the presence
of outside fire departments. In addition, there were three less
serious f i r e s , one on October 25, 1974, one on October 31, 1974,
and one on November 26, 1974.
Plaintiff McPherson was taken from the general population at
M . C . I . , Norfolk, on or about October 16, 1974, and placed in a
cell in,the Receiving Building at the institution (hereinafter referred
to a s the RB). On October 24, 1974, the plaintiffs, Fano, De Brosky,
Dussault, Hathaway, and Royce, were taken from the general
population and placed in cells in the RB.
The RB at M . C . I . , Norfolk, is apparently principally used
for the processing of new inmates. In effect, it also serves a s an
informal Departmental Segregation Unit, though it apparently has
not been officially designated as such. The conditions of confinement
in the RB are roughly comparable to those in the Departmental
Segregation Unit, Cell Block 10, at M . C . I . , Walpole, described in
the Revised Opinion and Order in Daigle et al. v. Hall et a l . , OA
74-4783-S, filed January 7, 1975. No notice or hearing was afforded
the plaintiffs before their transfer to the RB.
On October 25, 19 74, the defendant Meachum filed and presented
each plaintiff with a copy of a disciplinary report. The offenses
charted against each plaintiff were described in substantially the
same terms as appears in the notices of reclassification hearings
hereinafter quoted. In each case the offense charged was referred to
the local District Attorney for investigation and outside prosecution.
Consequently, in accordance with paragraph VII D of Commissioner's
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Bulletin 72-1, no disciplinary hearing was held.
On November 4, 19 74, each of the six plaintiffs received a
Notice of Classification Hearing. With reference to the plaintiffs
Fano, DeBrosky, and Dussault, the reason for review of the
classification status was set forth as follows:
"The department has received information through a reliable
source that you were in p o s s e s s i o n of instruments, or materials, that might
be used as weapons and/or ammunition and that you had joined in
plans to use these contraband items.
"These items and plans occurred during a period of serious unrest
at M . C . I . , Norfolk, which included many fires that posed a significant
threat to the lives of persons at M . C . I . , Norfolk as well a s serious
property damage. "
With respect to the plaintiffs Hathaway and McPherson, the
reason for review of the classification status was stated a s follows:
"The Department has received information through a reliable
source that you were significantly involved in the planning and execution
of one or more of the serious fires occuring with M . C . I. , Norfolk in the
past few w e e k s . These fires caused considerable property damage and
posed a very real threat to personal s a f e t y . "
With respect to plaintiff Royce, the reason for review of the
classification status was a s follows:
"The department has received information through a reliable
source that you were involved in the trafficking of contraband in
M . C . I . , Norfolk, (narcotics, barbituates, and/or amphetamines.)
This occurred during a period of serious unrest at M . C . I . , Norfolk
which included many fires, that posed a significant threat to the
lives of persons at M . C . I . , Norfolk, as well as serious property
damage."
On November 6 , 8 , 11, and 13, classification hearings were
held with respect to each of the six plaintiffs. Each plaintiff was
represented by counsel. The evidence with respect t o t h e alleged
offenses committed by the plaintiffs, however, was given in closed
s e s s i o n outside of the presence of the plaintiffs and their counsel
and was apparently, in each c a s e , in the form of recitation by the
defendant Meachum of information purportedly furnished to him by
a confidential informant. The nature of this information was never
made known to the plaintiffs or to their counsel even in summary form.
They have not been informed of even so much as the dates and places of
the alleged o f f e n s e s .
The classification board made a recommendation for a transfer
to either Walpole or Bridgewater in the case of each plaintiff except
Royce, who was to be held in administrative segregation for thirty
d a y s . Each plaintiff appealed this classification recommendation to
the defendant Hall. The defendant Hall denied the a p p e a l s , but modified
the recommendations of the classification committee and entered orders
transferring all of the plaintiffs, including Royce, to M . C . I . , Walpole,
except Hathaway, who was ordered transferred to M . C . I , Bridgewater.
At the time of the hearings all of these transfers had been accomplished
except that of the plaintiff Le Q^cg^y, who was in the hospital at M . C . I . ,
Norfolk, and Hathaway, who was retained in the RB at MCI. , Norfolk.
I find that the conditions of confinement at M . C . I . , Walpole and
M . C . I . , Bridgewater, are substantially more adverse than they are
at M . C . I . , Norfolk. I further take judicial notice that these institutions
have been deliberately differentiated to provide graduated conditions
of confinement within the Department of Correction.
Fano v. Meachum, 387 F.Supp. 664, 666.
The District Court applied Wolff to this situation, and ruled that the
inmates were entitled to notice /w hearing which it found were wanting in this
c a s e . Further, it ordered the establishment of procedures governing transfers
resulting from informant testimony. Id, at 669.
The United States Court of Appeals affirmed in Fano v. Meachum, 520
F . 2 d . 374. The first circuit used a balancing test^having decided Wolff
required due process guarantees to be applicable, to determine the process due.
The balancing was done by comparing the substantiality of the loss an inmate
would suTtier because of the transfer against the burden the process would place
upon prison officials. Id_at 379.
The Court found that there was a sufficient
overall modification of the inmate's condition to trigger the application of Due
Process. Id_, at 377,378.
The United States Supreme Court, per Mr. Justice White, set forth the issue
in the first paragraph:
The question here is whether the Due Process Clause
of the fourteenth Amendment entitles a state prisoner to a
hearing when he is transferred to a prison, the conditions of
which are substantially less favorable to the prisoner, absent
a state law or practice conditioning such transfers on proof of
serious misconduct or the occurrence of other e v e n t s .
Meachum , supra at 5 o 5 3
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The reasons for the Court's holding are listed below.
IV. Analysis of Meachum
The first question the Court focused on was whether the transfer of the
inmates infringed or implicated a "liberty" interest that they had within the
meaning of the Due Process C l a u s e . Immediately the Court rejected the notion
that any grievious loss vested upon a person by the state invokes the procedural
protections of the Due Process C l a u s e . The Court says it will look to the nature
of t h e imfs'ihun , the Court cited Board of Regents v. Roth, 408 U.S. 5 64
(1972).
The Court found that a valid conviction sufficiently extinguished the
defendant's liberty interest to empower the state to confine him in any of its
prisons. "That life in one prison is much more disagreeable than in another
does not in itself signify that a Fourteenth Amendment liberty interest is
implicated when a prisoner is transfered to the institution with the more severe
rules", Id_. at 5056.
The second issue is the recognition "that the convicted felon does not
forfeit all constitutional protections by reason of his conviction and confinement
in prison. " _Id_ at 5056.
Here the Court attempted to distinguish Wolff.
The Court warns that invocation of Due Process Procedures whenever any substantial deprivation is imposed would subject to judicial review a wide spectrum
of discretionary actions normally performed by prison officials. It cited this
situation, inter-prison transfers, as an example. The Court pointed out that
transfers are routinely made on informed opinions as to what is best for institu183
tional security, or the inmate, and were due process requirements imposed on
these transfers, it would be an unnecessary burden on prison administrators.
The Court found that Wolff held "The Due Process Clause entitles a
state prisoner to certain procedural protections when he is deprived of good time
credits because of serious misconduct. " Id_at 5057.
The reason for this
protection is not because of a Constitutionally created interest but rather because
the State itself has provided a statutory right to good time. In other words, the
liberty interest protected by Wolff was based solely upon state law and
Due Process clause protections were necessary to ensure that interest is not
arbitrarily abrogated. Jd_. at 5057.
In this case the state had not created a liberty interest. The inmate had
no right "to remain in the prison to which he was initially a s s i g n e d , defeasible
only upon proof of specific acts of misconduct. " J d . at 5057.
Further,
whatever expectation the prisoner might have in remaining at any prison is "too
ephemeral and insubstantial to trigger procedural due process protections as long
as prison officials have discretion to transfer him for whatever reason or for no
reason at all. " Id_. at 5057.
Finally, the Court expressed its desire to refrain from sitting astride the
d a y - t o - d a y functions of state prisons a s a supervisor. However, if states wish
to impose pretransfer hearings on their prisoners, they may do so. The Court
holds only that the Due Process Clause does not impose a nationwide rule mandating
transfer hearings. Id_at 5058.
However, to this holding the Courts add the follow-
ing footnote:
1.84
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Nor do we think the situation is substantially different
because a record will be made of the transfer and the reasons
which underlay it, thus perhaps effecting the future conditions
of confinement, including the possibilities of parole. The granting
of parole has itself not yet been deemed a function to which due
process requirements are applicable. See Scott v. Kentucky Parole
Board, cert, granted December 15 , 19 75. If such holding eventuates,
it will be time enough'to consider respondent's contentions that
there is unfounded information contained in his file. Id_at 5 058.
V. Wolff
The Court dealt with prisoner rights in Wolff v. McDonnell, 418 U. S.
539, 41 L.Ed. 2d 935 , 94 S. Ct. 2963. This was a 42 USC § 1983 action
filed by an inmate at the Nebraska Penal and Correctional Complex. He alleged
that the Complex's disciplinary hearings did not comply with the Fourteenth
Amendment's Due Process C l a u s e , that inmate legal a s s i s t a n c e programs did
not comply with constitutional standards, and that regulations govening inspection
of inmate mail were too restrictive. This paper will deal only with the first of
these allegations and the Supreme Court's holdings relating to it.
The Court looked at Nebraska's Statutes on treatment and correction
which provides that "except in flagrant or serious c a s e s , punishment for
misconduct shall consist of deprivation of privileges. In c a s e s of flagrant misconduct, the Chief executive officer may order that a person's 'tjood time" credits
be forfeited or withheld, and that the person be confined in a disciplinary cell. "
Therefore, the Court noted there are distinct types or c l a s s e s of punishment.
Id.at 546,547.
The Court then reviewed the Complex's administrative procedure
for determining what type of misconduct is involved.
The State contended that the procedures it employed in disciplining inmates
for serious misconduct were a matter of policy and not a constitutional i s s u e . The
Court found this position wholly unteHga^ep because although an inmate's rights
_i n_
may be diminished by the needs of the institutional environment, a prisoner is
not wholly stripped of constitutional protection when he is imprisoned for crime."
Id_. at 555.
The Court listed the rights that inmates had secured through
litigation: religious freedom, a c c e s s to the Courts, equal protection clause
against invidious discrimination based on race, and that they "may also claim
the protection of the Due Process C l a u s e . They may not be deprived of life,
liberty, or property without due process of the law. " I d . at 556.
The State contended that although they may have those rights, the interest
of prisoners in disciplinary procedures is not included in that "liberty" guaranteed
by the Fourteenth Amendment. The Court rejected this and went into what the
Court in Meachum said was the limited holding of Wolff.
It is true that the Constitution itself does not guarantee
good time credit for satisfactory behavior while in prison. But
here the State itself has not only provided a statutory right to
good-time but also specified that it is to be forfeited only for
serious misbehavior. Nebraska may have the authority to create,
or not, a right to a shortened prison sentence through that
accumulation of credits for good behavior, and it is true that Due
Process Clause does not require a hearing "in every conceivable
case of government impairment of private interest." Cafeteria
Workers v. McElroy, 367 US 886, 894, 6 L Ed 2d 1230, 81 S. Ct.
1743 (1961). But the State having created the right to good time
and itself recognizing that its deprivation is a sanction authorized
for major misconduct, the prisoner's interest has real substance and is
sufficiently embraced within the Fourteenth Amendment "liberty" to
entitle him to those minimum procedures appropriate under the
circumstances and required by the Due Process Clause to insure that
the state-created right is not arbitrarily abrogated. Id.at 55 7.
The Court next drew a parallel between liberty interests and due process
interests, and found the deprivation of a liberty interest deserved an equal
amount of protection a s is provided for deprivation of property. The Court noted
"the touchstone of due process is protection of the individual against arbitrary
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action of the government." Id_. at 558.
Therefore, since the inmates in
Nebraska could be deprived of good-time only if guilty of serious misconduct, there
must be a determination of whether such misconduct has occurred and a determination is critical to the inmate's liberty interest, therefore minimum requirements
of due process apply.
In determining what procedures are due, the Court said no universal rule
of due process is possible and the process due depends upon the given
circumstances. "Viewed in this light, it is immediately apparent that one
cannot automatically apply procedural rules designed for free citizens in an open
society or for parolees or probationers under only limited restraints, to the very
different situation presented by a disciplinary proceeding in a state prison." Id.
at 560.
The Court found that parole revocation "inflicts grievious loss" on
the parolee, while in the prison disciplinary proceeding, there may be a loss
but not of the same "immediate d i s a s t e r . " Id. at 560
The Court then used the old balancing trick: The Due Process Clause demands
versus the prisoner and the prison environment. The Court wanted to avoid putting
prison authorities in straight-jackets and in the end left them a good deal of
their discretion. The Court found the following minimum procedures were required:
1.
Prison officials must provide the disciplinary action defendant
with written notice of the charges against him 24 hours in
advance of a hearing.
2.
A written statement by the fact finders a s to the evidence relied
on and the reasons for the action taken should be provided.
3.
The inmate should be allowed to call w i t n e s s e s and present
documentary evidence in his defense when permitting him to
do so will not be unduly hazardous to institutional safety or goods.
4.
The Court specifically declined to require the State to allow c r o s s examination or confrontation, and rejected the contention that counsel
should be brought into the hearing.
In discussing the reasons for requiring a written statement by the fact
finders, theCourt felt that such records "might furnish the basis of a decision
by the Director of Corrections to transfer an inmate to another institution
because he is considered to be incorrigible by reason of frequent intentional
breaches of discipline. . . and are certainly likely to be considered by the State
parole authorities in making parole d e c i s i o n s . " Id_. at 5 65 .
Having concluded these were the appropriate procedures required by the
Due Process Clause in depriving an inmate of good time, the Court in a
footnote pointed out:
Although the complaint put at issue the procedures employed
with respect to the deprivation of good time, under the Nebraska
system, the same procedures are employed where disciplinary
confinement is imposed. The deprivation of good time and "solitary"
confinement are reserved for instances where serious misbehavior
has occurred. This appears a realistic approach, for it would be
difficult for the purposes of procedural due process to distinguish
between the procedures that are required where good time is forfeited
and those that must be extended when solitary confinement is at
i s s u e . The latter represents a major change in the conditions of
confinement and is normally imposed only when it is claimed and
proved that there was a major act of misconduct. Here, as in the
c a s e of good time, there should be minimum procedural s a f e guards a s a hedge against arbitrary determination of the factual
predicate for imposition of the sanction. We do not suggest, however,
that the procedures required by today's decision for the deprivation
of good time would a l s o be required for the imposition of lesser
penalties such a s the loss of privileges. Id_. at 571 n. 119.
VI. C a s e s Citing Wolff
Before beginning the actual analysis of Meachum and the comparison
with Wolff it is interesting to note that the Court referred to Wolff in two other
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c a s e s and did not mention its purported limited scope. Baxter v. Palmigiano,
U.S.
, 47 L. Ed 2d 810 (1976); and Cox v. Cook, 420
U . S . 7 34, 43 L.Ed. 2d 5 87, 95 S. Ct. 12 37. In Cox the Court found Wolff
"held that state prisoners were entitled under the Due Process Clause of the Fourteenth Amendment to notice and some kind of hearing in connection with
determinations involving serious misconduct." _Id_ at 736. In Baxter, the Court
dealt directly with its decision in Wolff and affirmed the Due Process requirements laid out for disciplinary hearings but refused to extend the right of
counsel, and upheld the right of prison authorities to draw an adverse inference
from an inmate's silence. Neither case talked of the holdings of Wolff in the
narrow terms that the Court in Meachum d o e s .
In the light of Wolff several c a s e s have been decided in the
area of prison transfers. Gomes v. Travisco, 510 F.2d, 537 (1st
Cir. 1974) was on appeal to the Supreme Court when Wolff was decided.
The Court vacated and remanded it in light of Wolff, whereupon, the
First Circuit modified its earlier opinion. The First Circuit found
there were specific deprivations imposed upon inmate's in these
interstate transfers ( i . e . administrative segregation, adverse effects
on parole, inconsistent work assisgnments, discontinuity of rehabilitation
programs, and the acquired label of troublemaker). The Court found
it anomalous that the State could accomplish by transfer a procedure free
punishment which it could not accomplish within the prison walls, and
that these deprivations were sufficient to trigger the due process
required by Wolff. Gomes, Supra at 539 .
A majority of the circuits have found sufficient deprivations to require at least
minimum procedures. Aikens v. Lash, 514 F.2d 55 (7th Cir. 1975); Gomes v.
Travisco, 510 F.2d 537 (1st Cir. 1974); Ault v. Holmes, 506 F.2d 288 (6th Cir.
1974); Bryant v. Hardy, 488 F.2d 72 (4th Cir. 1973); Fajeriak v. McGinnis,
493 F. 2d 468 (9th Cir. 1974); United States Ex Rel Schuster v. Herold, 410
F. 2d 1071 (2nd Cir. 1969).
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VII. The Principals
In analyzing the Meachum c a s e we must first start with the "liberty
interest" concept set forth by the Court. The Court at the outset rejected the
notion that any grievious loss invokes the procedural protection of the Due
Process Clause. The Court cited Roth, supra, for this proposition. However,
the Court failed to cite Goldberg v. Kelly, 397 U.S. 254, 25 L. Ed.2d 287,90
S. Ct. 1011, which is cited with approval in Roth, Supra at 578.
There the
Court found the privilege argument was not a proper defense to the constitutional
questions raised by denying welfare recipients benefits without a hearing.
The extent to which due process must be afforded depends upon the extent to
which a person may be condemned to suffer a grievious l o s s , and depends
upon whether his interest in avoiding that loss outweighs the government's
interest in summary ajudication. Goldberg, Supra at 262-263 .
Therefore, if the Court meant what it said in Meachum, it has discredited
Goldberg and substituted a new vague test: "the determining factor is the nature
of the interest involved rather than its weight." Meachum, supra , at 5056.
However, even under this test substantial arguments can be advanced in
support of minimum procedural requirements in a transfer action. The interest sought
to be protected need not be narrowly couched in the term "liberty interest."
There are other important protected interests which the Supreme Court and other
Courts have long recognized. The transfer may deprive the inmate of his interest
in a c c e s s to his family, thereby destroying his marriage, a fundamental right.
Griswold v. Connecticut^ 381 U.S. 479, 14 L.Ed 2d 510, 85 S. Ct. 1678 (1965).
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The transfer may deny the inmate a c c e s s to counsel and thereby deny him a c c e s s
to the Courts, a protected right set forth in Younger v. Gilmore, 404 U . S . 15,
30 L.Ed 2d 142, 92 S. Ct. 250 (1970). The transfer may be in effect a suppression
of the inmate's freedom of speech, a freedom of religion, both constitutionally
protected interest. Cruz v. Beta, 405, U.S. 319, 31 L. Ed. 2d 263, 92 S. Ct.
1079 (19 72). Indeed, the threat of arbitrary transfer may have a chilling effect
on any or all of these protected rights. A 1974 Ninth Circuit c a s e amply demonstrated this chilling e f f e c t . Several inmates brought a § 1983 action challenging
their non-consentual transfers to prisons outside the state, and claiming a due
process violation. Two inmates alleged their transfer was because of their
religious activities: one was a Black Muslim and the other a Christian Scientist.
The Ninth Circuit found they had a valid claim, and the transfering of inmates
for the sole purpose of penalizing religious activities was unconstitutional.
Fajeriak v. McGinnis, 493 F.2d 468 (9th Cir. 1974). Clearly there are interests
beyond the abstract concept of "liberty interests" that must be protected by at
least minimum due p r o c e s s .
Here Meachum comes directly in conflict with Wolff. The Court recognized
that an inmate does not loose all of his rights, but said the right to due process
is lost here because the Court does not want to open to a broad spectrum of
judicial review discretionary actions that have traditionally been the business of
prison administrators, and further that Wolff did not require such review because
of its limited holding. The first part of this argument is a judicial cop-out that
needs not be explored in any depth. The fallacy of this argument is that the
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procedures set forth in Wolff would simplify any judicial review that might
become necessary. Were the procedures outlined in Wolff followed, the standard
could be abuse of discretion and review would be facilitated by the written
record required in disciplinary hearings. The flood of reviews, the Court feared,
is the mythical flood that has long ago been discredited a s a reason for not
extending constitutional protections.
This "hands-off" doctrine of judicial abstention in the area of correctional
administration has four basic rationale:
1.
2.
3.
4.
Separation of powers ,
The lack of judicial expertise in penology;
The fear that judicial intervention will subvent prison discipline;
Claims presented avoidance of federal-state conflict is advanced
as a b a s i s of denying relief.
The separation of powers doctrine has never been sufficient reason for
denying a person the protections of Due Process C l a u s e . The second and third
rationale basically combine to mean that routine correctional decisions should be
left to the professionals, however, a person who even feels that he is not being
treated fairly ( i . e . through arbitrary transfer decisions) will not be receptive to
reformative programs which are a goal of incarceration. Goldfarb, and Singer,
Redressing Prisoner's Grievances, 39 George Washington Law Review, 175, 298.
Finally, the avoidance of federal-state conflict is another judicial cop-out
advanced when the Court wants to avoid a decision.
None of these rationale are sufficient to prevent the United States Supreme
Court from acting to protect individual rights from arbitrary state action. In the
area of prisoners' rights the Courts have opened four categories to the wide
spectrum of judicial review:
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The first category, still insufficiently protected by the courts,
involves inmate's rights to physical security and the minimal
conditions necessary to sustain life. The second category, which has
received varying degrees of recognition, includes rights usually termed
"civil rights" when applied to persons who are not in prison: freedom
of religion, freedom of expression, freedom from racial discrimination,
the right of privacy, the right to vote, and the right to defend oneself
against criminal charges. The third category, long considered important
by the courts, protects prisoner's a c c e s s to court to challenge the
legality of their criminal convictions. Finally, just beginning to
be recognized, is a prisoner's right to demand that he be given the benefit
of reasonable standards and procedural protections when decisions are
made that have a significant effect on him. Goldfarb, Supra at 186.
The openings of these four areas to judicial review has not incapacitated
the prisoners in America.
The Court next limited the effect of Wolff by finding that it held that
the protections of the Due Process Clause applied only in the good time situation
at issue in the c a s e , because the state by statute created the right to good time
and not the constitution. This writer disagrees with this interpretation of
Wolff as did the lower courts in these c a s e s . Indeed, Marshall's dissent in
Wolff points out that the holding is not so narrow a s to apply to good time situations
only, but applies whenever a major change in the condition of confinement is
imposed as punishment. Wolff, Supra at 581.
While the cause of action in
Wolff centered around the deprivation of good time credits, the Court talked in
terms of disciplinary proceedings through the entire decision as pointed out in
footnote 19 cited above. The Court itself has noted the holding was not limited.
Cox, supra.
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In limiting Wolff to protection of a state created right, the Court avoids
the fact that the inmate has suffered a grievious l o s s . The Court seemed to
ignore a rather substantial change, in the conditions of confinement. The Court
found whatever interest=the prisoner had were too "ephemeral and unsubstantial"
to protect. However, the inmate did have substantial interest a s stated by the
appeals court which may be lost by arbitrary action. The nature of these
interests go to the very heart of one of the goals of our penal system: rehabilitation.
The inmate and the State have an interest in seeing that goal reached. However, if
the inmate feels he is not being treated fairly, he will not be receptive to
these programs. Therefore, there should be explicit standards and administrative
procedures to enable inmates to test the fairness of each decision effecting them.
The Challenge of Crime In A Free Society, A Report by the President's Commission
on Law Enforcement and Administration of Justice, (New York: E. P. Dutton and
Co, Inc. 1968) at 431.
The other interest set out above combined with the interest in rehabilitation
make the nature of the inmate's interest an important one. If statutory authority
is necessary to protect one's interests, perhaps the policy or purpose sections
of penal enabling a c t s , those which profess to seek rehabilitation, can be used
to justify an inmate's expectation in fair treatment. This would meet the
Court's requirement set forth in Meachum. If the test is the "grievious loss"
t e s t , surely that can be shown in the transfer of inmates from an institution of
better conditions to one of the older, harsher institutions. If the test is a balancing
t e s t a s set forth in Goldberg, then we must measure the inmate's interest in
avoiding this grievious loss against the burden placed upon the govenment.
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The inmate's interests are adequately set out above and need not be
repeated. The burden placed upon correctional officials is a minor one at most.
Virtually all institutions have some type of disciplinary board or review board
already established. These boards are required by Wolff for good time forfeiture so
that no additional burdens of hiring new employees or forming a new board are
placed upon the system. Except in emergencies routine administrative transfers
are announced sufficiently in advance to allow a hearing where the inmate can
present his side, and the prison authorities can give their reasons for or against
a transfer. This would place no additional burden on the authorities. Where
the transfer is for disciplinary reasons or to curb d i s t u r b a n c e s , there is a need
f or prompt removal, but the slight delay caused by minimum due process procedures
would not deny prison officials use of this method of prison control, nor would
it unduly burden them. Indeed, this writer agrees with correctional authorities
that transfers are "an effective means of blunting a demonstration" or controlling
prison disturbances. C a u s e s , Preventive Measures, and Methods of Controlling
Riots and Disturbances in Correctional Institutions, American Correctional Associations (1970) at 24. However, even when the inmate must be transferred, because
threat of danger or other legitimate r e a s o n s , without a hearing, a hearing could
be conducted at the new institution under proper procedural safeguards. Again,
without any unnecessary burden being placed on correctional authorities. Minimum
due process procedures in transfers would not place burden on prison authorities
which outweigh the inmate's interest in fair treatment, liberty, and rehabilitation.
Another area of possible conflict between Wolff and Meachum arises where
the transfer is to an institution where it is not possible to earn good time at the same
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rate as the original prison. Would the Court allow the state to deny good time
credits by transfer without due process? Carrying the expectation argument
advanced by the Court in Meachum to its logical conclusion, the State could
accomplish this. Further, it seems that it might be in the State's best interest
to repeal all of its rehabilitative legislation and work on a c a s e by case b a s i s .
This retrenchment would have serious consequences both in and out of prisons.
In summary, Wolff was not so narrow when it was decided, but the Court
in Meachum has narrowed it. There are substantial and grievious l o s s e s suffered
by inmates who are arbitrarily transferred. They are further alienated from the
system professing to correct them. Inmates do have a substantial interest
.
(HfHerin remaining at a particular correctional institution. As practical, ^applying
n
Wolff minimum procedural requirements to the transfer (administrative or
disciplinary ) would not place any undue burden on correctional authorities,
and would probably unburden them from much of the criticism they receive for
arbitrary actions (because most transfers would probably be justified).
This writer finds it particularly interesting that the Court chose Meachum
for its analytical decision rather than Montanye. Had the Court analyzed Montanye
they might have found that Haymes had a legitimate interest, a protected interest
at stake: a c c e s s to the Court. Instead, the Court undertook the analysis of
Meachum, where some procedures were set out and followed, and where the
inmates were involved in destructive tactics which would have justified the
action taken after proper procedures were followed. If anything, these c a s e s are
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completely distinguishable on the facts as well a s upon the theory of protected
interest. Haymes had a protected interest a s stated above and to apply the blanket
rule to this case only compounds the erroneous conclusion reached in Meachum.
VIII. The Effects
Having considered the doctrinal a s p e c t s of the decision, we now turn to
some of the practical a s p e c t s . As pointed out above one of the chief practical
a s p e c t s is the inmate's attitude toward the system because of his treatment by
the system. The question now becomes, how will the system react. The title of
this paper perhaps suggests their reaction. The burden of due process has been
lifted from their backs, if it is a burden. As suggested, the best thing a State
can do is repeal statutory rights and work on an individual discriminatory
system. Transfers per se are not undesirable but transfers resulting from abuse
of descretion or from the "apparent" abuse of discretion are. As with Caesar's
wife, prison officials should be above the appearance of impropriety. Although
most enlightened correctional authorities will take nofcof this, the few that do not
can undermine the good work done by many. Transfers should be used sparingly
when used for discipline.
When all possible treatment and disciplinary resources of
any one institution have been exhaused on a problem inmate,
without success in terms of his effecting satisfactory adjustment,
or if the inmate constitutes a major threat to the welfare or security
of that institution, transfer to an institution which affords greater
custodial control or specialized treatment may be indicated. A chronic
offender in one institution often a d j u s t s suprisingly well when
transfered to another institution where he is no longer compelled to
keep up the "tough guy - big shot" pretense and can begin anew in
a changed environment. Manual of Correctional Standards, 2nd ed.
The American Correctional Association 1966, 416.
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A good survey of Court trends prior to Meachum can be found in The
Emerging Rights _of the Confined, South Carolina Department of Corrections,
The Correctional Development Foundation, Inc. 19 72 , Chapter 17.
IX. Conclusion
In conclusion, the United States Supreme Court has retrenched to the
"hands-off" doctrine in the area of correctional decision making. This
retrenchment was signaled in Baxter, supra, and was climaxed in Meachum.
The only grounds that appear left open to attack transfers are those where the
inmate can show the transfer deprived him of a specifically protected right,
(I.E. freedom of religion), and even the success of this attack is doubtful.
In an age of enlightenment in the field of corrections, the United States Supreme
Court travels to the beat of a different drum.
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