Chapter 4
Part II
1
Prisons
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Are prisons part of the criminal law system or the
administrative law system?
Why have prison populations doubled and tripled relative
to the population over the past 30 years?
Learning to think like an economist:
 Who benefits from tough laws, esp. drug laws?
 Who benefits from prisons?
 What is the tradeoff for the increased prison budgets?
2
“Liberty” - The Prison Equivalent to New
Property
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LA Stats
Look at the rate and the cost per prisoner
 Many are old and no threat to the public
 What is the state's track record for efficient programs?
 What do you suspect is the basis for such low per
prisoner cost?
 How does the dysfunctional public defender system
contribute to the incarnation rate?
What are the long term implications of this system?
3
State Prison Litigation:
42 USC 1983
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State prison cases are mostly filed under 42 USC 1983,
alleging that the state deprived the prisoners of their civil
rights.
 Due process claims, such as Sandin
 "Cruel and unusual punishment claims" which
generally deal with conditions of confinement or
medical care.
Prison Litigation Reform Act of 1995 requires exhaustion
of remedies in prison litigation, even if the administrative
system cannot provide the requested remedy, if the
system can provide some remedy
4
Due Process Claims
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Due process claims require the plaintiff to show
that he had a liberty interest in the proceeding.
Even if the court finds a liberty interest, that just
lets the prisoner get a hearing or get into court.
Courts generally defer to the prison on matters of
discipline and security
5
Good Time Credits and Parole to Reduce
Time Served
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Are these constitutionally required?
Why have them?
The Sentencing Reform Act of 1984 eliminated
parole and reduced good time credits in the
federal system
 Combined with the expansion of federal crimes,
this has lead to an explosion of federal
prisoners
 Same in many states
6
Cases that Affect Time Served
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Why would procedures that affect release dates
get the most legal protection?
Return to prison for a parole violation (Gagnon)
 Should the prisoner get a hearing?
 Why - what might be contested?
Decisions reducing good time credits or affecting
parole (Morrissey/Wolff)
 How does these look like Goldberg benefits?
7
Sandin v Conner 1995
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Prisoner got 30 days in solitary as punishment.
 Is this cruel and unusual?
Is he entitled to a hearing?
 Only when discipline "imposes atypical and significant
hardship on the inmate in relation to the ordinary
incidents of prison life" is due process implicated.
The Court rejected a claim that punishment of solitary
confinement for 30 days was enough to trigger due
process requirements.
8
Wilkinson v. Austin, 125 S.Ct. 2384 (2005)
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The Court concluded that indefinite placement in
a "supermax" prison together with a
disqualification from parole was enough to trigger
due process requirements.
What does it mean to be in a supermax prison?
 Why do we put inmates in them?
Does a hearing before the prison officials really
mean much?
9
What rights does a prisoner retain?
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Some freedom to exercise religion
Some limited right to communicate with the
outside
A little bit of free speech
Some bodily integrity, at least in the area of
medical care
Freedom from beatings and the like through 1983,
and state laws.
10
Trade-offs in Prison Regulations
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Assume you have been hired to develop a new set
of prison regulations for Angola.
What are the tradeoffs you must deal with?
What happens if prisoners have lots of rights?
What if prisoners have no rights?
Do more detailed regulations increase or reduce
prison discretion?
 Increase or reduce conflicts over rules?
11
How Can Prisoners Enforce their Rights?
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Should jailhouse lawyers get special (positive)
treatment in court?
How much latitude should outside lawyers have in
asserting rights for prisoners?
Should there be different rules for juvenile
prisons?
 Who decides about representation for kids if
the parents are not fit?
 What about medical decisions for them?
12
Stopped Here
13
Limitations on Hearings
14
How Much Process is Due?
History
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Old days - Not much
APA - 1945 - Strong bias in favor of hearings
1955 (Warren Court) - hearing required before
deportation
Congress changes that by statute
1970 Goldberg
 Notion of a constitutionally required hearing
before a benefit is terminated
15
Matthews v. Eldridge (1976)
16
Social Security Disability
Basic Procedure Drill - I
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Get a form the Social Security office
What is the illness, the work history, the doc?
SSI orders records
A doc at SSI at Disability Determination Service - run by
state as contractor - makes a determination
Sends to regional office
Regional office pays, QA, or denies
Ask for reconsideration
This is all done with records
17
Social Security Disability
Basic Procedure drill - II
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At the state level, the examiner can call the patient's doc
At the fed level, the expert is bound by the patient's doc
Most problems arise because of poor documentation
Applicants can submit new info and get a new evaluation
After denial, you can ask for a hearing before ALJ
At the hearing stage, you ask for an expedited review if
the case is clear
ALJ's decision is final
At this point you can appeal to the federal courts
Positive decisions are retroactive - critical DP point
18
Volume of Claims
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How many claims does SSA decide every year?
 How big is the disability system (SSD)?
 Why is this important background for Matthews
v. Eldridge?
Think about what this process looks like from the
perspective of a disabled person tying to get
benefits, or trying to avoid having benefits
cancelled
 Will they usually have benefit of counsel?
19
Matthews v. Eldridge (1976)
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Why does SSD require periodic review of
benefits?
When does SSD provide an oral hearing?
What if the claimant is successful at the hearing?
How long can this take?
Why does the Court find this is less critical than
in Goldberg?
20
What does plaintiff want?
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What data is used for making disability determinations?
Who would be the witnesses and how is their information
collected?
Does the claimant's testimony matter?
How does this change the equities of Goldberg?
Why is the administrative decisionmaker less prone to
make errors in this case than in Goldberg?
21
Cost Benefit Analysis
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What are the Mathews factors?
 C = Px V
 (C)ost = (P)robability of increased accuracy
versus (V)alue of the benefit
How would you apply these factors to Matthews?
Does plaintiff get his pre-termination hearing?
What about other administrative decisions?
22
De minimis Test
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Some deprivations are too insignificant to trigger
a right to a hearing
Putting a cop on paid sick leave did not trigger
due process
Otherwise the courts will be in every employment
action
We will see this again with 1983 actions
23
Alternative Remedies
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Due process is not the only remedy for many actions
Contracts with the government are not property but are
agreements governed by contract law.
Unger v. National Residents Matching Program
 Failing to admit resident after signing the match
contract did not trigger a hearing, but would support
a breach of contract action.
Does you client really need a hearing, or do you have a
contract action?
Which is better?
24
Any Pre-Action Hearing Rights after
Matthews?
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Cleveland Board of Education v. Loudermill, 470
U.S. 532 (1985)
 Firing a teacher
Applying the Matthews factors, how do you argue
that an informal pre-termination hearing is
required
 How is this different from Matthews itself as
regards to the ability to cure problems with a
post-termination hearing?
25
Gilbert v. Homar, 520 U.S. 924 (1997)
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Who did the guard work for?
 Why did this make his arrest for marijuana possession
a particular problem?
Did he get any due process prior to this suspension from
the workplace?
 What was the importance of the decision by an
"independent body" and what was the body?
 What are the limits of this opinion?
Why does this being a temporary suspension matter?
26
Goss v. Lopez, 419 U.S. 565 (1975)
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High school student suspended from school
What due process did the court require?
What was the Mathews analysis?
27
Ingraham v. Wright, 430 U.S. 651 (1977)
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School paddling case
What due process did the court require?
What was the Mathews analysis?
How does the analysis differ from Goss?
 Why?
Do we still paddle students?
 Why not?
Is hauling them to jail more protective of their rights?
28
Board of Curators of the Univ. of Missouri
v. Horowitz, 435 U.S. 78 (1978)
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Academic suspension case for a medical student
What due process did the court require?
What was the Mathews analysis?
Would this analysis differ if this had been a
disciplinary suspension?
29
Law School Disciple and Due Process
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In Mathews terms, what are the issues in providing due
process for academic issues?
How does this differ for a disciplinary suspension?
 How do we tell whether it is an academic or
disciplinary issue?
 What about plagiarism? Cheating?
Why is the Mathews basis for treating academic and
disciplinary issues differently?
 What is the role of special expertise and deference?
30
Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004)
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Guantanamo Bay Habeas Corpus Case
http://biotech.law.lsu.edu/cases/natsec/hamdi.htm (at 65)
31
Bias in Administrative Hearings
32
What does a Right to an Impartial Judge
Mean?
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What are sources of bias?
 How is the analysis different for agencies than
for Article III courts?
What does separation of functions mean?
 How does it reduce potential bias?
 How does this support a central panel of ALJs?
33
The Problem of Proof
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We will see more about this in the chapter on
judicial review
The core problem is that you cannot judge bias by
only looking at the record, but the courts are
unwilling to allow discovery into the motives of
the judges
It would be like getting to depose an Article III
judge as part of the appeal of a summary
judgment.
34
Exception to the Requirement of Separation of
Functions for the Heads of Agencies
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554(d)
 This subsection does not apply  ...
 (C) to the agency or a member or members of
the body comprising the agency.
35
Withrow v. Larkin, 421 U.S. 35 (1975)
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State medical licensing board
What were the functions?
What did the doc request?
Why did the court find that it was not necessary to
separate them?
Why would a central panel ALJ be a particular
problem for these cases?
36
Disqualifying an Administrative Law
Decisionmaker for Bias
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What is the United States Supreme Court standard?
 “irrevocably closed mind”
What does it take to show this?
 What happened in Texaco, Inc. v. FTC, 336 F.2d 754
(D.C. Cir. 1964)?
 Would generalized statements, such as the FCC chair
deploring advertising to children, meet the standard?
What is the Doctrine of Necessity?
37
Kennecott Copper Corp. v. FTC, 467 F.2d
67 (10th Cir. 1972)
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Kennecott owned a small coal company, then
bought a big one - Peabody
FTC investigated this as an antitrust violation
 A commissioner gave an interview and
explained that the agency saw Kennecott as
removing itself as a competitor.
 Kennecott claimed this showed bias
The court said no, but warned the agency to be
more careful
38
Pillsbury Co. v. FTC, 354 F.2d 952 (5th Cir.
1966)
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Who was meddling in the FTC case?
 What did Senator Kefauver say?
 What was a hearing like with Kefauver?
 Did the Senator have an alter-ego?
What did the court find?
What is allowed for pending cases?
What is the analysis if it had been the president?
 How does this change the issues?
39
Ex Parte Communication Review
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Why do ex parte communications impinge the
rights of the regulated party?
 Does it matter whether they come from inside
or outside the agency?
How can the harm be cured?
 5 U.S.C. §557(d) — placing the ex parte
communication in the record and affording the
parties a chance to respond to it.
40
Returning to the LA Central Panel
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How does it protect the rights of the regulated
person?
 This is the rationale for the panel
Is this constitutionally necessary?
What are the trade offs?
41