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 cross-examination

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