Chapter 4 - Adjudications
Part II
1
The LA Prison Blues
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The Cost of Prisons
LA Prison Stats - Murder Rates – If NO was a Country
Why might the murder rates be higher than the general
crime rate?
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?
Many are old and no threat to the public, but they cannot
be released
 Costs finally have the governor talking about this.
What are the long term implications of this system?
2
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?
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.
 (Cases against Federal prisons are brought under
Bivens)
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
Prisoners as Litigants
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Successful litigation is mostly by NGOs - ACLU, prison
rights organizations, AIDS organizations
Individual prisoners
 Do prisoners have a lot to do with their time?
 Do most prisoners have sophisticated legal talents?
 Do prisoners like to give the prison grief?
 What is most prisoner litigation going to look like?
5
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
6
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
7
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?
8
Sandin v Conner, 515 U.S. 472 (1995)
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Prisoner got 30 days in solitary as punishment.
 Is this cruel and unusual? (remember, it has to be both)
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.
 What do many countries think of solitary confinement?
9
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?
 Wonder if the supermax mattered at all
Does a hearing before the prison officials really
mean much?
10
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
FTCA/Bivens, 42 USC 1983, and state laws.
11
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?
12
If you are Entitled to a Hearing:
How Much Process is Due?
13
Matthews v. Eldridge (1976)
http://www.ssa.gov/disability/
http://biotech.law.lsu.edu/Courses/adlaw/201
4s/43421-DisabilityInsurance_print.pdf
14
Social Security Disability
Basic Procedure
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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 approves the claim, ask for more info, or
denies the claim.
 Claimant can ask for reconsideration
This is all done with records
15
Social Security Disability
Basic Procedure - Appeals
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Most problems arise because of poor documentation
 The agency has limited authority to reject the treating
physician's evaluation.
After denial, you can ask for a hearing before an ALJ
The agency treats the ALJ's decision as final
 At this point you can appeal to the agency internal appeals
process, then to the federal courts
Positive decisions are retroactive - critical DP point
 Generates the money to pay the attorney as well
16
Volume of Claims
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Are there a lot of Social Security Disability claims
every year?
 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?
17
Background of the Case
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Was plaintiff already on SSI?
 Bad back and diabetes
 Did he develop a complicating condition?
The 1972 questionnaire
 Did Eldridge complete the questionnaire?
 What did he indicate about his condition?
Did the agency still think he was disabled at this
point?
18
The Termination Process
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What did the agency decide about his condition
as outlined in the tentative determination letter?
Was Eldridge given a chance to respond before
his benefits were terminated?
Did he dispute their analysis of his condition?
Did he provide any new evidence to support his
position?
What was the agency's response?
19
The Agency Process
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Did the SSA accept his rebuttal of their
determination?
Did he get an in-person hearing?
Were his benefits terminated?
What was his recourse?
 If it is later found that the benefits were improperly
terminated, does the beneficiary get the back
benefits?
What does plaintiff claim Goldberg gives him a right
to before his benefits are terminated?
20
How are SSI Determinations Different
from Welfare Determinations
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What sort of information was at issue in Goldberg?
What data is used for making disability determinations?
Who would be the witnesses and how is their information
collected?
 Is this different from the witnesses in Goldberg?
How is the value of the claimant's testimony different
from that in Goldberg?
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
The Accuracy of the Proceedings
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Do the parties and the amici agree on the reversal
rate of the initial determination by the posttermination hearing?
Is this an open or closed file review, i.e., does the
claimant have one shot and if he is unsuccessful
he has to start over with a new claim?
 How does this make it more difficult to
determine if a reversal is due to initial error by
the agency?
22
The Mathews Factors
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First, the cost of an erroneous deprivation of the private
interest at issue - (V)
Second, the probability of reducing the chance of error
through more extensive or different procedures - (P)
Third, the government's interest in its procedures, i.e.,
the incremental cost of the additional or different
procedures that might reduce errors - (C)
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The Mathews Factors as a Cost Benefit
Analysis
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What is the relationship between C and (P x V)
 (C)ost of added process
 (P)robability of increased accuracy
 (V)alue of the benefit/cost of error.
 C < P x V
What is the key to convincing the court that your
client should get more process?
 How does this transform the notion of fairness?
 Is due process a good on its own in this analysis?
24
Apply these Factors to the Case
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How would you apply these factors to the
Matthews case?
 Does plaintiff get his pre-termination hearing?
What about detaining a tuberculosis carrier?
A terrorist who might have information about a
pending attack?
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Matthews as a the End of the Warren
Court
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How is Matthews different from the ideal of due
process in Goldberg?
How does it differ from the notion that every one
gets criminal due process rights, including
counsel?
Would we do better in criminal law if we were
forced to recognize costs and benefits?
 Could the LA public defender system meet the
Matthews test?
26
How Far Does Matthews Go?
Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004)
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The ordinary mechanism that we use for balancing such serious
competing interests, and for determining the procedures that are
necessary to ensure that a citizen is not "deprived of life, liberty, or
property, without due process of law," U. S. Const., Amdt. 5, is the
test that we articulated in Mathews v. Eldridge. Mathews dictates
that the process due in any given instance is determined by
weighing "the private interest that will be affected by the official
action" against the Government's asserted interest, "including the
function involved" and the burdens the Government would face in
providing greater process. The Mathews calculus then
contemplates a judicious balancing of these concerns, through an
analysis of "the risk of an erroneous deprivation" of the private
interest if the process were reduced and the "probable value, if
any, of additional or substitute safeguards.
http://biotech.law.lsu.edu/cases/nat-sec/hamdi.htm (at 65)
27
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
This is key issue in 1983 actions - how hard/often
can the prison guard hit the prisoner?
28
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.
 The Court of Claims system deals with these.
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?
29
Any Pre-Action Hearing Rights after
Matthews?
30
Cleveland Board of Education v.
Loudermill, 470 U.S. 532 (1985)
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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?
31
Gilbert v. Homar, 520 U.S. 924 (1997)
Has there been a substitute for a hearing?
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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?
32
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?
33
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?
34
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?
 What would be the costs of having due process
for every failing student?
 What would be the facts at issue?
Would this analysis differ if this had been a
disciplinary suspension?
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Law School Disciple and Due Process
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Why does Mathews result in different standards for
academic and disciplinary suspensions?
 How do we tell whether it is an academic or
disciplinary issue?
 What about plagiarism? Cheating?
What is the role of special expertise and deference?
 Is this just judicial deference to agency expertise and
policy making, with the school as agency?
36
Bias in Administrative Hearings
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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 is separation of functions?
 How does it reduce potential bias?
 This argument lead to the central panel of ALJs
in LA.
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The Problem of Proof of Bias
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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.
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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.
The “agency” means the secretary in an agency
with a single head.
The “body comprising the agency” is the
commissioners or board members of an agency
headed by a committee.
40
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?
 The Supreme Court reiterated the fundamental importance of
the need for an unbiased decision maker, but it found that the
mere combination of investigatory, prosecutorial, and
adjudicatory functions in the same entity did not necessarily
make the entity biased in adjudicating.
 Why is the record so important in these cases?
Why would an independent ALJ be a particular problem for these
cases?
41
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)?
 Why does mean that the head of the EPA needs to be
circumspect in comments about BP?
 Would generalized statements, such as the FCC chair
deploring advertising to children, meet the standard?
What is the Doctrine of Necessity?
42
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.
43
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 the court was worried about:
 However, when such an investigation focuses directly
and substantially upon the mental decisional processes
of a Commission in a case which is pending before it,
Congress is no longer intervening in the agency's
legislative function, but rather, in its judicial function. At
this latter point, we become concerned with the right of
private litigants to a fair trial and, equally important, with
their right to the appearance of impartiality, which
cannot be maintained unless those who exercise the
judicial function are free from powerful external
influences.
44
The Pillsbury Ruling
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What happens if the court disqualifies the commission
because of the intimidation in the Senate hearing?
The court’s solution:
 Although we conclude that the course of the questioning
before the Senate subcommittee in June 1955 deprived
the petitioner of the kind of hearing contemplated by the
Supreme Court ... we are convinced that the
Commission is not permanently disqualified to decide
this case. We are convinced that the passage of time,
coupled with the changes in personnel on the
Commission, sufficiently insulate the present members
from any outward effect from what occurred in 1955.
45
What should Congress be able to do in
Hearings and for Casework?
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Congressional case work – doing things for
constituents such as checking on Social Security
Benefits or trying to get bank regulators to lay off.
What should be allowed and what would be
forbidden under Pillsbury and what you know
about due process?
What if the president is meddling?
 How does this change the issues?
 Is he the decider?
46