Meachun v. Fano Brief of the Petitioners
Public Court Documents
January 1, 1975
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Brief Collection, LDF Court Filings. Meachun v. Fano Brief of the Petitioners, 1975. 81287a69-bd9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/361cc610-ad85-4ada-91cd-f0bb5103ed70/meachun-v-fano-brief-of-the-petitioners. Accessed October 08, 2025.
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The Supreme Court
of the United States
Larry Meachum, et al.
versus
Arthur Fano, et al.
Petition and Briefs
Law Reprints
Criminal Law Series vol. 7, no. 48
1975/1976 Term
I n %
fflmtrt ni tty Intuit
O ctober T erm , 1975
No.
TARRY MEACHUM, ET AL.,
PETITIONERS,
V.
ARTHUR FANO, ET AL.,
RESPONDENTS.
ON PETITION FOR A W RIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
BRIEF OF THE PETITIONERS
F rancis X. B ellotti
Attorney General
J ohn J. I r w in , Jr.
Assistant Attorney General
Chief, Criminal Bureau
D avid A. M ills
Assistant Attorney General
Chief, Criminal Appellate Section
M ichael C. D onahue
Assistant Attorney General
TABLE OF CONTENTS
Page
Opinions Below ............................................................... 1
Jurisdiction ....................................................................... 2
Questions Presented ........................................................ 2
Statement of the Case .................................................... 2
A. Prior Proceedings ................................................ 2
B. Pacts ....................................................................... 3
Reasons for Granting the Writ .................................... 6
Introduction ................................................................... 6
I. The Opinion of the Court of Appeals Is in Con
flict With Decisions of This C ou rt....................... 7
II. The Lower Federal Courts Are in Conflict on
the Issues Presented Here ............................. 10
III. The Issues Raised in This Petition Are Novel
and Substantial Questions Which Justify a De
cision by This Court ............................................ 13
Conclusion ......................................................................... 15
Appendix ........................................................................... 16
T able of C itations
Cases
Arnett v. Kennedy, 416 U.S. 134 (1974) ....................... 10
Beatham v. Manson, 369 F. Supp. 783 (D. Conn. 1973) 11
Benfield v. Bounds, 363 F. Supp. 160 (E.D.N.C. 1973) 11
Board of Regents v. Roth, 408 U.S. 564, 569 (1972). 8, 9, 10
Bundy v. Cannon, 328 F. Supp. 165 (D. Md. 1971) . . . 11
Fajeraik v. McGinnis, 493 F.2d 468 (9th Cir. 1974) . * 12
Fano v. Meachum, 387 F. Supp. 664 (D. Mass. 1975) . . 1
Fano v. Meachum, Ct. of App., F.2d (1st Cir.
June 27, 1975) ............................................................... 1
11 Table of Contents
Page
Gomes v. Travisono, 490 F.2d 1209 (1st Cir. 1973),
vacated and remanded, 418 U.S. 909 (1974), aff’d
in part, 510 F.2d 537 (1974) ................................ 11, 12
Goss v. Lopez, 419 U.S. 565 (1975) (preliminary print) 8, 9
Eaymes v. Montayne, 505 F.2d 977 (2nd Cir. 1974),
cert, granted, U.S. (June 30, 1975) 7, 13
Eillen v. Director, 455 F.2d 510 (9th Cir. 1972), cert.
denied 409 U.S. 989 (1972) ........................................ 12
Kessler v. Cupp, 372 F. Snpp. (D. Ore. 1973) ............. 12
Meyer v. Alldredge, 492 F.2d 296 (3rd Cir. 1974) . . . . 13
Preiser v. Newkirk, U.S. , (June 25, 1975),
vacating and remanding, Newkirk v. Butler, 499 F.2d
1214 (2nd Cir. 1974) ............................................ 7, 11, 13
Schumate v. People of the State of New York, 373 F.
Snpp. 1166 (S.D.N.Y. 1974) ...................................... 11
Stone v. Egeler, 377 F. Supp. 115 (W.D. Mich. 1973). . 11
White v. Gilman, 360 F. Supp. 64 (S.D. Iowa 1973) . . . 11
Wolff v. McDonnell, 418 U.S. 539 (1974) . . 6, 7, 10, 13, 14
Constitutional Povisions
United States Constitution, Fourteenth Amendment 2,
6, 7, 8, 9
Statutes
28 U.S.C. § 1254 (1) ...................................................... 2
42 U.S.C. § 1983 ............................................................. 2
I n tff£
8>npxtt\w ffimtrt of t\\x Htuirfi States
O ctober T eem , 1975
No.
LARRY MEACHUM, ET AL.,
PETITIONERS,
V.
ARTHUR FANO, ET AL.,
RESPONDENTS.
ON PETITION FOR A W RIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
BRIEF OF THE PETITIONERS
Opinions Below
The opinion of the District Court, Fano v. Meachum, is
reported at 387 F. Supp. 664 (D. Mass., 1975). The opinion
of the Court of Appeals for the First Circuit was issued
June 27,1975 and is reported at F.2d . Both opinions
are included as an Appendix to this petition.
1
2
Jurisdiction
The petitioners invoke the jurisdiction of this court
pursuant to 28 U.S.C. §1254(1).
Questions Presented
1. Whether a prison inmate who is transferred, within
a state, from a medium security institution to a maximum
security institution, when there is no imposition of discipli
nary punishment at the receiving institution, is entitled
under the Due Process Clause of the Fourteenth Amend
ment to more than a notice of the proposed transfer and
an opportunity to be heard in opposition to the transfer.
2. Whether the Commonwealth of Massachuetts has
sufficiently created an interest in remaining in any one
prison to be cognizable as “ liberty” or “ property” under
the Fourteenth Amendment.
3. Whether the Due Process Clause of the Fourteenth
Amendment requires the disclosure of informant informa
tion when, in the judgment of prison officials, such dis
closure would create a substantial likelihood of harm to
the informants.
4. Whether the opinion of the Court of Appeals for the
First Circuit is consistent with opinions of this Court.
Statement of the Case
A. Prior Proceedings.
This action was originally commenced by seventeen
inmates of MCI, Norfolk, a medium security institution
within the Commonwealth of Massachusetts. Plaintiffs
sought declaratory and injunctive relief and damages pur
suant to 42 U.S.C. §1983. Six inmates later filed an
2
3
amended complaint and sought preliminary injunctive relief
ordering their transfer from MCI, Norfolk to the maximum
security institution at MCI, Walpole, rescinded. The
preliminary injunction was heard by the District Court
upon a stipulation of facts entered into by the parties and
upon a submission of documents pertinent to the transfer.
On January 10, 1975, the District Court issued an order,
Appendix 23, granting certain injunctive relief against
the prison officials. The order of the District Court was
stayed in part by the District Court pending an appeal
to the Court of Appeals for the First Circuit. Pending
the appeal, the Court of Appeals stayed the remainder of
the order because of the seriousness and complexity of
the issues involved.
On June 27, 1975 the Court of Appeals, in a 2 to 1
decision, Judge Levin H. Campbell dissenting, affirmed the
order of the District Court. The Court of Appeals stayed
issuance of the mandate pending the filing and disposition
of a petition for Certiorari with this Court.
B. Facts
There was no essential dispute as to the facts of this
case. The critical incidents which comprise the complaint
were set forth in a stipulation and are fairly stated in the
opinion of the courts below.
From the late summer through the fall of 1974, there
was a period of serious unrest at MCI, Norfolk, a “ medium
security” institution in the Commonwealth of Massachu
setts. This period of unrest included nine fires within the
institution serious enough to require the summonsing of
fire departments from the neighboring communities. Prison
officials believed that these fires were set by individuals
within the institution. The petitioner Meachum, Superin
tendent of MCI, Norfolk, received confidential information
3
4
that certain inmates, among whom are the respondents in
this action, were in some degree responsible for this unrest
and for the fires occurring at the institution. Between
October 16, and October 24, 1974, respondents in this action
were taken from the general population MCI, Norfolk and
placed in cells at the Receiving Building at Norfolk.
The Receiving Building at Norfolk, was both a place apart
from the general population and a place of stricter confine
ment than the general population.
On October 25, each of the inmates was given a disci
plinary report purporting to describe the reasons of their
removal from the general population. On November 4,1974,
the prisoners received notice of a classification hearing.
The notice essentially repeated the matters earlier refer
enced in the disciplinary report and informed the inmates
that a “ classification hearing” would be held on a date
to immediately follow. The notice of the classification
hearing of the respondent Fano is included in the appendix
as representative of the notices given to respondents.
(App. 24) Certain of the respondents were given dif
ferent notices but the substance of the notification pro
cedure is represented by the document contained in the
appendix. On November 6, 8, 11, and 13, 1974 classification
hearings were held for each of the inmates on the informa
tion referenced on the notices. At the hearing, each inmate
was present and allowed to make a personal statement
to the board. Each inmate was represented by counsel.
Each inmate was allowed to present evidence in his behalf
and, indeed, the stipulation that was before the District
Court and the Court of Appeals indicates that several of
the prisoners, at least, produced corrections officers, who
testified in their behalf. The Classification Board also
heard evidence from each of the plaintiff’s social workers
during the course of the hearing.
4
5
The Classification Board opened the hearing by reading
a prepared statement. Following the statement plaintiff
and his attorney were asked to excuse themselves from the
hearing room. Meaehum then presented the board informant
information which he had received along with a record of
prior instances in which the informants’ information had
proven reliable. The superintendent’s testimony was not
taken under oath and the board specifically refused to tape-
record the parts of the testimony dealing with the confi
dential information. The remainder of the hearings wrere
tape recorded and made part of the institutional record.
Following the return of the inmate and his counsel to the
hearing room, the board informed him that the Superin
tendent had given informant information relating to the
inmate’s conduct at the institution. The board refused to
further summarize the evidence because, in Meaehum’s,
and the board’s opinion, to do so would endanger the safety
of the informants. Each plaintiff was, as noted earlier,
allowed to present evidence to the board and to make any
statement they wished to the board concerning their activi
ties in the institution. Each plaintiff denied to the board
any of the activity alleged in the disciplinary classification
reports.
The board, however, basing its decision on Meaehum’s
testimony, and the information supplied by Meaehum,
recommended transfers from Norfolk for all of the inmates.
It was stipulated that the inmates were not given a written
statement of the reasons for the board’s action, but were
rather orally informed by the board that its recommenda
tions were based upon the informant information presented
to it by the Superintendent. The parties also stipulated
that the recommendations made by the board were essen
tially ratified by the Commissioner, though in some
instances the recommendations were modified with respect
to the receiving institution.
5
6
Following the Commissioner’s approval, the inmates
were transferred to the maximum security institution at
Walpole. Walpole and Norfolk are approximately one mile
apart. The inmates were subjected to no disciplinary
punishment upon transfer to Walpole. They suffered no
loss of good time and were not placed in administrative
segregation upon their arrival. The inmates might be fur
loughed and paroled from the institution at Walpole,
although it was conceded that the requirements were gen
erally stricter at Walpole than at Norfolk.
Reasons for Granting the Writ
IX T E O D U C T IO N
The petitioners’ ask this Court to grant a petition for
a Writ of Certiorari to the United States Court of Appeals
for the First Circuit on essentially three grounds: (1) the
opinion of the court in the case below is inconsistent with
opinions of this Court both in the Court of Appeals’ failure
to apply the “ Entitlement Doctrine” to the facts of this
case as well as its failure to specifically and accurately
analyze the nature of protected interests asserted by the
state prisoners; (2) the question of a state prisoner’s
interest in remaining in any one institution, and his interest
in being free from notations on his institutional record,
are serious and substantial constitutional questions encom
passing both the liberty and property clauses of the Four
teenth Amendment; and (3) the lower federal courts are
in disarray on these issues.
Since this Court’s opinion in Wolff v. McDonnell, 418
U.S. 539 (1974) the lower federal courts have been dealing
with the application of the concept of procedural due
process to many and varied factual situations in prisons.
The most ripened and specific questions which have arisen
from the application of the principles of Wolff v. McDon
6
7
nell, supra, have occurred in the area of intra-state trans
fers of state prisoners. This petition presents substantially
similar questions as those presented by the case of Preiser
v. Newkirk, U.S. , (June 25, 1975), vacating and
remanding, Newkirk v. Butler, 499 F.2d 1214 (2nd Cir.
1974) . The most substantial difference between the instant
petition and Preiser v. Newkirk, supra, is that this case
presents no issue of mootness. The instant petition is
also similar to the case of Haymes v. Montayne, 505 F.2d
977 (2nd Cir. 1974), cert, granted, U.S. (June 30,
1975) .
The instant petition also presents issues not presented
by either of the aforementioned Second Circuit cases. This
petition seeks to have this Court resolve whether or not
the lower court was in error when it enjoined the transfer
of individual inmates, who had been identified by the
superintendent of the transferring institution as respon
sible for setting of fires and other disruptive activity at
the institution. The petition seeks to have this Court deter
mine whether or not the Court of Appeals was in error
when it required the petitioners to give the prisoners a
summary of the information that was before the hearing
board when, in the judgment of the prison officials, such
a summary would have served to identify informants and
would have, consequently, placed the informants’ lives in
danger.
I. T he Opinion of th e Couet of A ppeals I s in Conflict
W it h D ecisions of T his Couet.
The petitioners suggest that the Court of Appeals has
misread one of the fundamental precepts used in determin
ing whether or not the Fourteenth Amendment is to be
considered applicable to a particular situation. Petitioners
contend that it has long been the law that in determining
“ . . . whether due process requirements apply in the first
7
8
place, we must look not to the ‘ weight’ hut to the nature
of the interest at stake” . Goss v. Lopez, 419 U.S. 565
(1975) (preliminary print). However, the Court of Appeals,
in its resolution of the question of whether due process
was to apply, did not look, at least initially, to the nature
but began by assessing the weight of the interests involved.
‘ ‘ The question thus becomes one of whether the detri
ment worked by an intra-state transfer from a medium-
security institution to a maximum-security prison is
serious enough to trigger the application of due pro
cess protections.”
(App. 32) (emphasis supplied).
It is apparent from this quote that the Court of Appeals
was weighing the losses asserted by the prisoners rather
than analyzing the nature of the interests claimed. This
was incorrect.
‘ ‘ The requirements of procedural due process apply only
to the deprivation of interests encompassed by the Four
teenth Amendments’ protection of liberty and property.”
Board of Regents v. Roth, 408 U.S. 564, 569 (1972). In
making the initial determination of whether the interest is,
in fact, encompassed by the Fourteenth Amendment, it is
not the weight of the interest that is crucial to the decision
but rather the nature of the interest. Board of Regents v.
Roth at 571. The distinction between “ liberty” and “ prop
erty ” may often be an obscure one, particularly in the prison
context, but, the Court of Appeals, in determining the
instant case, made no threshold effort to determine whether
or not the interests asserted by the state prisoners were in
effect in the nature of liberty or property interests encom
passed by the Fourteenth Amendment. Rather, the Court
cumulated the deprivations asserted by the prisoners and
held the weight of the deprivations asserted was sufficient
8
9
to trigger the procedural protections demanded by the
Fourteenth Amendment.
Moreover, in failing to initially analyze the specific
nature of the interests asserted by the prisoners the Court
of Appeals is further in conflict with decisions of this
Court. “ Protected interests in property are normally ‘not
created by the Constitution. Rather, they are created and
their dimensions defined’ by an independent source such
as state statutes or rules entitling the citizen to certain
benefits.” Goss v. Lopez, supra at 573, citing Board of
Regents v. Roth, at 577. The Court of Appeals presumed
that the rights that the individual prisoners were asserting
in the case below were rights which the constitution itself
protected. This assumption, the petitioners contend, is not
correct; and it is in conflict with decisions of this Court.
“ Morrissey v. Brewer, 408 U.S. 471 (1972), applied
the limitation of the Due Process Clause to govern
mental decisions to revoke parole, although a parolee
has no constitutional right to that status. In like vein
was Wolff v. McDonnell, 418 U.S. 539 (1974),
where the procedural protections of the Due Process
Clause were triggered by official cancellation of a
prisoner’s good time credits accumulated under state
law, although those benefits were not mandated by
the constitution.”
Goss v. Lopez, 419 U.S. at 573. (emphasis supplied)
As the vigorous dissenting opinion of Judge Campbell
makes vividly clear, in deciding whether or not a prisoner’s
interest is either a liberty or property interest encompassed
by the Fourteenth Amendment “ . . . it should be recognized
that Massachusetts has not conferred a statutory right
upon inmates to be in one institution rather than another. ’ ’
The majority opinion of the Court of Appeals rejected the
9
10
distinction set out by Judge Campbell. The Court expressly
declined to address the issues in terms of the possible
creation of the interest by the State.
The interests asserted by the prisoners in this action do
not constitute a “ legitimate claim of entitlement” to any
benefits protected by the Fourteenth Amendment. See
Board of Regents v. Roth, supra, at 577; Arnett v. Kennedy,
416 U.S. 134,165 (1974), (concurring opinion of Mr. Justice
Powell). In the instant petition there are absolutely no
statutes, regulations, or factual patterns which can be said
to constitute any claim of entitlement to remain in or
to go to, any specific institution in the Massachusetts
prison system. The greatest inconsistency of the Court of
Appeals with the decision of this Court is not in defining
the nature of the interest but, rather, in failing to make
any analysis whatsoever, as to whether or not a claim of
entitlement exists to the continuation of the benefit or
interest asserted by these prisoners. See Judge Campbell’s
perceptive analysis at App. 38 n. 2. Certiorari should be
granted to correct these conflicts.
II. T he L ower F ederal Courts A be in' Conflict on the
I ssues P resented H ebe.
As noted above, since the decision of this Court in
Wolff v. McDonnell, 418 U.S. 539 (1974) the lower federal
courts have been faced with the difficulty of applying the
concept of procedural due process to many and varied
factual situations arising in the prison context. The decision
of the lower federal courts in applying the concepts of
procedural due process have produced conflicting results,
particularly in the area of transfers of individual prisoners
from one institution to another. This conflict is reflected
specifically by the dissent of Judge Campbell from the
majority opinion of the Court of Appeals. (App. 37).
The granting of Certiorari by this Court in the cases
10
11
arising out of the Second Circuit, Newkirk v. Butler, 499
F.2d 1214 (2nd Cir. 1974), vacated and remanded U.S.
(June 25, 1975) and Haymes v. Montayne, 505 F.2d 977
(2nd Cir. 1974) cert, granted U.S, (June 30, 1975)
reflect an implicit recognition by this Court that the issues
present here are of consequence.
Decisions involving the intra-state transfer of prisoners
have produced widely conflicting results. Compare, Schu-
mate v. People of the State of New York, 373 F. Supp. 1166
(S.D.N.Y. 1974) with Beatham v. Manson, 369 F. Supp.
783 (D. Conn. 1973). Some courts have held that transfers
between state penal institutions are entirely a matter of
administrative discretion. See Benfield v. Bounds, 363 F.
Supp. 160 (E.D.N.C. 1973). In Bundy v. Cannon, 328 F.
Supp. 165 (D. Md. 1971) the presence of different custody
levels was not seen to require due process although the
Court did hold that placement in segregation at the receiv
ing institution would be sufficient to mandate procedural
protection. See also, the concurring opinion of Judge
Campbell in Gomes v. Travisono, 490 F.2d 1209 (1st Cir.
1973), vacated and remanded, 418 U.S. 909 (1974), aff’d
in part, 510 F.2d 537 (1974), wherein Judge Campbell
indicated his concurrence with the majority of the Court of
Appeals only insofar as it was explicitly understood that
the procedural protections referred to by the majority
were not to be construed as applying to wholly intra-state
situations.
In Newkirk v. Butler, supra, the Second Circuit required
process when the custody level of the institution was being
changed. The Newkirk Court appeared to have determined
that there was an inherent deprivation in intrastate trans
fers sufficient to require procedural protections. See also,
White v. Gilman, 360 F. Supp. 64 (S.D. Iowa 1973).
Stone v. Egeler, 377 F. Supp. 115 (W.D. Mich. 1973).
11
12
There are cases, however, which hold that interstate
transfers of state and federal prisoners do not necessarily
require due process procedures. Fajeraik v. McGinnis, 493
F.2d 468 (9th Cir. 1974); Hillen v. Director, 455 F.2d 510
(9th Cir. 1972), cert, denied 409 U.S. 989 (1972). Many
courts considering the question of intrastate transfers
have required varying degrees of due process procedures.
See Kessler v. Cupp, 372 F. Supp. 76 (D. Ore. 1973) as well
as Gomes v. Travisono, supra.
The conflicting decisions of the lower federal courts on
the question of whether or not procedural protections are
constitutionally required when intrastate transfers of
prisoners are involved is an issue that can be resolved
only by this court. Involved are questions which implicate
both the power of the federal court to affect the adminis
tration of state prison systems as well as a state inmate’s
general right to protection of “ liberty” interests. The
issues comprehend both federalism and considerations of
judicial discretion.
As stated by Judge Campbell:
“ Where within the state penal system a prisoner is
to be lodged seems to me a judgment which the state
has the exclusive right to make—summarily if need be.
Such decisions are part and parcel of its power to keep
the prisoner safely, to protect other prisoners, and
to operate its prisons.” (App. 39)
In the instant case these issues are especially paramount.
The plaintiffs in the case below were transferred from
the institution at MCI, Norfolk, because, in the judgment
of the Superintendent, as the result of information supplied
to him by an informant, they had been responsible for
setting fires and engaging in varying degrees of disruptive
behavior at the institution. (App. 25-26). The decisions
12
13
below have required that these prisoners be transferred
back to the institution, pending additional hearing pro
cedures which the prison officials do not feel that they are
able to afford, consistent with the safety of the institution
and the inmates committed to their custody.
I I I . T he I ssues R aised in' T h is P etition A be N ovel and
S ubstantial Questions W h ic h J ustify a D ecision
by T h is Coubt.
The Court of Appeals, both in its analysis of whether
procedural protections were to apply, as well as in its
resolution of what the process was to consist of, raised
substantial and novel issues concerning the applicability
of the Fourteenth Amendment.
The resolution of other questions by the First Circuit,
however, leaves yet an additional issue which has not been
presented to this court by either the cases of Haymes v.
Montayne, supra, or Preiser v. Newkirk, supra. This con
cerns the extent of an informant’s right to remain anony
mous when his information is being used as a basis for
administrative decisions in the prison system. In the past
substantial controversy existed over the right of an inmate
to confront his or her accusers and cross-examine adverse
witnesses at prison disciplinary hearings. See Meyers v.
Alldredge, 492 F.2d 296, 308 (3rd Cir. 1974). This contro
versy was substantially clarified by the decision of this
court in Wolff v. McDonnell, supra. The petitioners con
tended in the Court of Appeals that this Court’s language
in Wolff was dispositive of what, and how much, informa
tion was required to be given to the inmate. See, 418 TJ.S.
at 565, where this court said “ . . . that there will be occa
sions when personal or institutional safety are so impli
cated, that the statement [of reasons] may properly
exclude certain items of evidence.”
13
14
The Court of Appeals rejected petitioners’ contention.
In doing so, we suggest, the Court of Appeals went far
beyond what this Court required in Wolff. We suggest
the Court of Appeals promulgated a general rule which
may well be read to permit a subjective analysis that would
permit the lower federal courts to overrule the considered
judgment of prison officials in any administrative matter
which occurs within any state prison system, simply because
the Fourteenth Amendment is invoked.
The District Court and the Court of Appeals have re
quired that inmates, who have been specifically found by
the superintendent of the transferring institution to be
dangerous and disruptive, be sent back to that institution
because procedural due process was not observed. This
is a significant action because it gives no indication that
the demands of federalism have been recognized and there
is no apparent appreciation of the responsibilities of
prison officials. The decision further creates a potentially
dangerous situation because administrative officials may
now feel that they cannot transfer a dangerous inmate if
they cannot form evidentiary support for the judgment
that they feel they are otherwise bound to make. The
decision of the Court of Appeals places every prison
official within its jurisdiction in a dilemma by conceding
nothing to administrative good faith and substantially
overlooking important interests of the state. As noted by
Judge Campbell in his dissent below:
“ Administrative realities may sometimes necessitate
the flexibility to transfer even on the basis of demon
strably inadequate information. If, for example, the
warden has narrowed the likely cause of disruption
down to several inmates, he may deem it prudent to
transfer all without having objective proof that all
are involved. A 40% risk that an inmate will disrupt
14
15
or set a fire may, in some circumstances, be too great
to take. The safety of other inmates and prison per
sonnel may have to be weighed against fairness to
certain individuals.” (App. 40-41 n. 3)
Conclusion
The issues presented by this petition are novel, complex,
and are of overriding importance to the administration of
the state prison systems. The complexity of the analysis
which surrounds the interest of a state prisoner in his
entitlement to certain rights within the prison system is of
singular importance both from the viewpoint of the admin
istrator as well as of the inmate. The necessity of deciding
what is in fact the process due in potentially disruptive
situations is an issue of monumental importance which can
only be resolved by this Court. The question of what can
be constitutionally required when informant information
is being used as a basis of an administrative official’s
decision is fraught with danger and it has been unsatis
factorily resolved by Courts below. This Court, alone,
can resolve these questions. For all of the reasons stated
above the petitioners respectfully request that their appli
cation for a Writ of Certiorari be granted in this case.
Respectfully submitted,
F eaxcis X. B ellotti
Attorney General
J o h x J. I e w ix , Jb.
Assistant Attorney General
Chief, Criminal Bureau
D avid A. M ills
Assistant Attorney General
Chief, Criminal Appellate Section
M ichael C. D oxahue
Assistant Attorney General
15
APPENDIX
1. Opinion of the District Court, 387F. Supp. 664.
2. Opinion of The Court of Appeals.
iyajirm* (Emtrt ni tlj? MnlUh States
OCTOBER TERM. 1975
No. 75-252
LARRY MEACHUM, et al„
Petitioners,
v.
ARTHUR FANO, et al,
Respondents.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIRST CIRCUIT
BRIEF IN OPPOSITION TO
PETITION FOR A W R IT OF CERTIORARI
RICHARD SHAPIRO
DIANNE KEEGAN
Prisoners' Rights Project
2 Park Square
Boston, Massachusetts 02116
JONATHAN SHAPIRO
Burnham, Stern and Shapiro
2 Park Square
Boston, Massachusetts 17
O pin ions Below ................................................................................................ 1
Q uestions P re se n te d .................................................... 1
Statem ent o f th e C ase ....................... ............................. ....................... 2
Argument...................................... 3
I n tr o d u c t io n ................................................................................ 3
I . The D e c is io n o f th e C ourt o f A ppeals Is
C o n siste n t With P r io r D e c is io n s o f This
C ou rt.............................................................................................. 4
I I . The D e c is io n o f th e C ourt o f A ppeals I s
C o n s is te n t With D e c is io n s o f Other Lower
F ed era l C o u rts ................................................................ 6
I I I . The Is su e s In T h is Case Are Narrow, Are.
I n e x t r ic a b ly Bound t o C on sid era tion o f
M assachusetts R e g u la tio n s , and Do Not R aise
Any Im portant Q uestion o f F ed era l Law .. . . . . . . . 9
C o n c lu s io n ...................................... 11
TABLE OF CONTENTS
Page
19
TABLE OF CITATIONS
CASES
A u lt v . Holmes, 506 F. 2d 288 (6th C ir . 1 9 7 4 )...........................................7
Beatham v . Marson-, 369 F. Supp. 783 (D. Conn. 1 9 7 3 ).............................8
B e n fie ld v . Bounds, 363 F. Supp. 160 (E .D .N .C . 1 9 7 3 )...........................8
Bowers V. Sm ith , 353 F. Supp. 1339 (D .V t .1 9 7 2 ) .........................................8
C a rlo v . G unter, _____F. 2d_____/C ir . N o .75-1163 (1 s t C ir .
August 4~, 1 9 7 5 ) ........................................................................................................ 7
C lon ce v . R ich a rd son / 379 F.Supp. 338 (W.D. Mo. 1 9 7 4 )........................ 7
C lu tc h e tte v . P r o c u n ie r , 497 F .2 d 809 (9th C ir . 1 9 7 4 ),
O pin ion on re h e a r in g , 510 F 2d 613 (9th C ir . 1 9 7 4 )......................7
D a ig le v . H a l l , 387 F.Supp. 652 (D. Mass. 1 9 7 5 )............ ..........................7
Fano v . Meachum, 387 F. Supp. 664 (D. Mass. 1 9 7 5 ) .............................. 1 ,2
Fano v . Meachum, 520 F. 2d 374 (1 s t C ir . 1 9 7 5 )............ . . 1 , 2 , 5 , 6 , 9 , 1 0
Gomes v . T r a v iso n o , 490 F. 2d 1209 (1 s t C i r . 1 9 7 3 ), va ca ted
and remanded 418 U .S. 908 , on r e c o n s id e r a t io n , 510 F.
2d 537 (1 9 7 4 ) ........................................................................................ •..............7 ,9
Gray v . Cream er, 465 F .2d 179 (3rd C ir . 1 9 7 2 )........................... 8
K e s s le r v . Cupp, 372 F .Supp. 76 (D .O re. 1 9 7 3 )............................................. 8
King v . H ig g in s , 370 F .Supp. 1023 (D.M ass. 1974) , a f f 'd
495 F . 2d 815 (1 s t C ir . 1 9 7 4 )......................................................................... 8
Landman v . R o y s te r , 333 F.Supp. 621 (E .D .V a. 1 9 7 1 )................................8
McLaughlin v . H a l l , 520 F .2d 382 ( I s t C ir . 1 9 7 5 ) .......................................7
Nolan v . S c a f a t i , 430 F .2d 548 (1 s t C ir . 1 9 7 0 ).........................................8
Palm igiano v . B a x te r , 487 F .2d 1280 (1 s t C ir . 1 9 7 3 ),
O pinion on r e c o n s id e r a t io n a f t e r remand, 510 F .2d 534
(1 s t C ir . 1 9 7 4 ), c e r t .g r a n t e d __U .S .__ (June 9 , 1 9 7 5 )............. 7 ,10
Robbins v . K le in d ie n s t , 383 F.Supp. 239 (D .D.C. 1 9 7 4 ) ........................7
Romero v . S ch auer, 386 F .Supp. 851 (D .C o l. 1 9 7 4 )....................................7
Schumate v . P eop le o f th e S ta te o f New Y ork , 373 F.Supp.
1166 (S .D .N .Y . 1 9 7 4 ) ............................................................................................ 7
S o s tre v . M cG innis, 442 F .2d 178 (2nd C ir . 1 9 7 1 ).................................... 8
Stone v . E q e le r , 506 F. 2d 287 (6th C ir . 1 9 7 4 ) .........................................7
20
Tai v . Thompson, 387 F. Supp. 912 (D .Hawaii 1 9 7 5 )..............................7
U nited S ta tes v . C a ta la n o , 383 F .Supp. 346 (D.Conn. 1 9 7 4 )............7
U nited S ta tes Ex R e l. Haymes v . Montanye, 505 F .2d 977
(2nd C ir . 1 9 7 4 ), c e r t , gran ted __ U .S .__ (June 30, 1 9 7 5 ) ., . .11
U nited S ta tes Ex R el.. M il le r v . Twomey, 479 F.2d 701
(7th C ir .
U nited S ta tes
1973) . .
Ex R el.. Myers V. S i e l a f f , 381 F. Supp. 840
(E .D .P a. 1 9 7 4 ) ........................................................................................................7
Walker v . Hughes, 375 F .Supp. 708 (E .D .M ich 1 9 7 4 )............................... 7
W hite v . G ilim an, 360 F..Supp. 64 (S .D .Iow a 1973). ...............................8
W o lff v . McDonnell , 418 U.S. 539 (1 9 7 4 )...................... .4 ,5 ,6 ,7 ,8 ,9 ,1 0
CONSTITUTIONAL PROVISIONS
F ourteenth Amendment......................................................................................3 ,5 ,6 /7
21
IN THE
g’uprm? Court nf % InttriJ Stall's
OCTOBER TERM, 1975
No. 75-252
LARRY MEACHUM, et al..
Petitioners,
v.
ARTHUR FANO, et al.,
Respondents.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIRST CIRCUIT
BRIEF OF RESPONDENTS IN OPPOSITION
OPINIONS BELOW
The o p in io n o f th e D i s t r i c t Court i s re p o rte d as f o l lo w s :
Fano v . Meachum, 387 F. Supp. 664 (D. Mass. 1 9 7 5 ). The o p in io n
o f the C ourt o f A ppeals f o r the F ir s t C ir c u it i s r e p o r te d a t
520 F. 2d 374 (1 s t C ir . 1 9 7 5 ). Both op in io n s are in c lu d e d as
an Appendix to the B r ie f o f the P e t it i o n e r s in su p p ort o f t h e ir
P e t it i o n f o r a W rit o f C e r t io r a r i .
QUESTIONS PRESENTED
1. Whether the U nited S ta te s C ourt o f A ppeals f o r the F ir s t
C ir c u it p r o p e r ly con clu d ed th a t an inmate was e n t i t l e d to a
h earing p r io r to a t r a n s fe r from a medium s e c u r ity in s t i t u t i o n
to a maximum s e c u r ity in s t i t u t i o n when c o r r e c t io n a l o f f i c i a l s
23
had d e l ib e r a t e ly d i f f e r e n t ia t e d s ta t e p r iso n f a c i l i t i e s to
p r o v id e graduated c o n d it io n s o f con fin em en t w ith in the s ta t e
an5 when th e se same o f f i c i a l s had s t ip u la t e d in the U nited
S ta te s D i s t r i c t Court th a t the c o n d it io n s o f con fin em en t in
th e maximum s e c u r i t y in s t i t u t i o n were more adverse than th ose
a t the medium s e c u r it y f a c i l i t y ?
2 . Whether the U nited S ta tes C ourt o f A ppeals f o r the F ir s t
C ir c u it p r o p e r ly con clu d ed th a t an inm ate was e n t i t l e d to a
summary o f in fo rm a tion d e r iv e d from in form ant sou rces p r io r to
o r a t a h ear in g in v o lv in g h is t r a n s fe r from a medium s e c u r it y
in s t i t u t i o n t o a maximum s e c u r it y in s t i t u t i o n when s ta t e p r iso n
o f f i c i a l s had e x e r c is e d t h e ir sound d is c r e t io n in prom ulgating
i n s t i t u t i o n a l r e g u la t io n s re q u ir in g the d is c lo s u r e o f such
in fo rm a tio n ?
3 . Whether th e o p in io n o f th e U nited S ta te s C ourt o f Appeals
f o r the F ir s t C ir c u it i s c o n s is t e n t w ith o p in io n s o f t h is Court
and o f o th e r low er f e d e r a l c o u r ts ?
STATEMENT OF THE CASE
The p r io r p ro ce e d in g s and statem ent o f t h is ca se are
re p o r te d in the o p in io n o f th e U nited S ta te s D i s t r i c t C ourt,
Fano v . Meachum, 387 F . Supp. 664 (D. Mass. 1975) and in the
o p in io n o f the U nited S ta tes C ourt o f A ppeals f o r the F ir s t
C ir c u i t , Fano v . Meachum, 520 F. 2d 374 (1 s t C ir . 1975).
-2-
24
-3-
ARGUMENT
INTRODUCTION
The U nited S ta tes Court o f A ppeals f o r the F ir s t C ir c u it
d id n o t address th e broad c o n s t i t u t io n a l q u e s t io n s su g gested
by th e p e t i t i o n e r s but in s te a d reach ed ra th e r narrow and c a r e fu l ly
reasoned le g a l c o n c lu s io n s based on (1 .) a s p e c i f i c r e co rd
d ev e lop ed in th e U nited S ta tes D i s t r i c t Court through the p a r t i e s ’
own s t ip u la t io n o f f a c t s and (2 .) the p a r t ic u la r circu m stan ces
o f the M assachusetts c o r r e c t io n a l system .
The p e t i t i o n e r s m iss ta te th e is s u e i n i t i a l l y by a s s e r t in g
th a t the fundam ental q u e s t io n i s whether a s ta t e p r is o n e r has an
in t e r e s t , p r o te c te d by the Due P rocess C lause o f th e F ourteenth
Amendment, in rem aining in any p a r t ic u la r c o r r e c t io n a l i n s t i t u t i o n .
In f a c t , th e l im ite d is s u e r a is e d by th e r e co rd in t h is ca se i s
whether an inmate who i s s u b je c t t o an in t r a s t a t e t r a n s fe r has
a r ig h t t o a due p r o ce ss h earin g when th e t r a n s fe r in q u e s t io n
i s , by th e p e t i t i o n e r s ' own adm ission , t o an in s t i t u t i o n w ith
more adverse c o n d it io n s o f con fin em en t and when the M assachusetts
c o r r e c t io n a l o f f i c i a l s have d e l ib e r a t e ly d i f f e r e n t ia t e d in s t i t u
t io n s w ith in th e s ta t e p r iso n system to p ro v id e graduated
c o n d it io n s o f con fin em en t.
Furtherm ore, co n tra ry to p e t i t i o n e r s ’ a s s e r t io n , th ere i s no
c o n s t i t u t io n a l is s u e r a is e d in t h is ca se reg a rd in g th e n e c e s s it y
o f d i s c l o s in g th e substance o f in form ant in fo rm a tion when th a t
in form a tion i s b e in g used as a b a s is o f a c o r r e c t io n a l o f f i c i a l ’ s
d e c is io n to t r a n s fe r an inmate (B r ie f f o r P e t it i o n e r s a t 1 5 ).
Again the is s u e co n s id e re d by the U nited S ta te s C ourt o f A ppeals
i s much n arrow er, f o r the Court on ly d ec id ed th a t , once p r iso n
25
-4-
o f f i c i a l s have e x e r c is e d t h e i r sound d is c r e t io n to prom ulgate
r e g u la t io n s which p r o v id e some inm ates w ith s p e c i f i c p roced u ra l
p r o t e c t io n s , th ese o f f i c i a l s cannot a r b i t r a r i l y deny o th e r
inm ates who are s im i la r ly s itu a te d th ese id e n t i c a l r ig h t s w ithout
a showing th a t th e p a r t ic u la r r e g u la t io n s are unworkable o r
unduly burdensom e. These r u lin g s are n o t o n ly c o n s is t e n t w ith
p r i o r d e c is io n s o f t h is C ourt and o f th e low er f e d e r a l c o u rts
b u t a ls o r e f l e c t an adm irable r e s p e c t by th e D n ites S ta te s Court
o f A ppeals f o r th e F ir s t C ir c u it f o r s ta t e c o r r e c t io n a l p r a c t ic e s
and p r oced u res .
C on sequ en tly , th e r e s o lu t io n o f t h is case by th e Court o f
A ppeals was m a n ife s t ly c o r r e c t . There i s no c o n f l i c t o f d ecisions
w ith e i t h e r t h is C ourt o r o th e r low er c o u r ts , and th ere i s no
im portant q u e st io n o f F ed era l law re q u ir in g d e c is io n by t h is Court
I . THE DECISION OF THE COURT OF APPEALS IS CONSISTENT WITH
PRIOR DECISIONS OF THIS COURT.
The p e t i t i o n e r s con tend th a t the C ourt o f A p p ea ls , in d ec id it
w hether th e p r o t e c t io n s o f th e Due P ro ce ss C lause shou ld be
a p p lie d to th e t r a n s fe r s in th e in s ta n t c a s e , f a i l e d to ana lyze
th e nature o f th e in t e r e s t a t stake in l in e w ith p r io r d e c is io n s
o f t h is C ou rt. To b u t tr e s s t h is co n te n t io n , p e t i t i o n e r s
s e l e c t i v e l y quote from th e C ourt o f A ppeals d e c is io n and u t t e r ly
ig n o re th e c o u r t 's c a r e fu l a n a ly s is o f the due p r o c e ss is s u e .
In c o n s id e r in g "w hether th e d e c is io n to t r a n s fe r inm ates from
N o r fo lk to maximum s e c u r ity in s t i t u t i o n s w ith in M assachusetts
i s o f such a ch a ra c te r th a t th e due p r o ce ss r ig h ts o f p o t e n t ia l
tr a n s fe r e e s are b rou gh t in to p la y " (App. 3 1 ), the C ourt o f
A ppeals q u ite p r o p e r ly look ed to t h is C o u r t 's d e c is io n in W o lff
26
-5-
v . M cD onnell, 418 U .S . 539 (1974) f o r gu id a n ce . In W o lf f ,
th is C ourt r e je c t e d th e argument th a t th e in t e r e s t o f p r iso n e rs
in d is c ip l in a r y p roced u res i s n o t in c lu d e d in the " l i b e r t y "
p r o te c te d by the F ou rteenth Amendment. T h is C ourt fu r th e r
con clu d ed th a t , a t l e a s t where the S ta te has c re a te d the r ig h t
to g ood -tim e c r e d i t s and p ro v id e d f o r w ithdraw al o f th e c r e d i t s
as a s a n ct io n f o r d is c i p l in a r y o f fe n s e s ,
"th e p r is o n e r s ' in t e r e s t has r e a l substance
and i s s u f f i c i e n t l y embraced w ith in F ou rteenth
Amendment ' l i b e r t y ' t o e n t i t l e him to th ose
minimum p roced u res a p p ro p r ia te under the
'c ir cu m s ta n ce s and re q u ire d by th e Due P ro ce ss
C lause to in su re th a t th e s t a t e -c r e a t e d r ig h t
i s n o t a r b i t r a r i l y a b ro g a te d ." W o lff v .
M cD onnell, 418 D .S . a t 557.
In th e in s ta n t c a s e , the D i s t r i c t C ourt and the C ourt o f
Appeals s p e c i f i c a l l y foun d , on th e b a s is o f th e s t ip u la t io n o f
fa c t s e n tered in t o by th e p e t i t i o n e r s , and o f th e p a r t ic u la r
arrangem ent o f in s t i t u t i o n s w ith in th e M assachusetts c o r r e c t io n a l
system , th a t s e r io u s d e p r iv a t io n s r e s u lte d from th e tr a n s fe r s in
q u e s t io n ; th a t th e Department o f C o rre c t io n had in t e n t io n a l ly
d i f f e r e n t ia t e d the s ta t e p r iso n s to p ro v id e graduated c o n d it io n s
o f con fin em en t; and th a t the t r a n s fe r s c o n s t it u t e d a sa n ct io n
1/
f o r s p e c i f i c ch arges o f m iscon d u ct.
1/
The p e t i t i o n e r s have n ever den ied e i t h e r th a t th e t r a n s fe r s
r e s u lte d in s e r io u s d e p r iv a t io n s t o th e inm ates o r th a t the
t r a n s fe r s were a d i r e c t r e s u l t o f w r itte n d is c ip l in a r y ch a rges ,
f o r w hich h earin gs were n o t h e ld . The p r iso n o f f i c i a l s app aren tly
attem pted t o circum vent th e p ro ce d u ra l requ irem ents s e t fo r th in
W o lff by c a n c e l l in g the d is c ip l in a r y h ear in g s and s ch ed u lin g
c l a s s i f i c a t i o n h earin gs in t h e ir p la c e . Fano v . Meachum, 520 F.
2d 374, 376-377 (1 s t C ir . 1 9 7 5 ). In any e v e n t, p r iso n o f f i c i a l s
must n o t be p erm itted to a b rogate t h e ir r e s p o n s i b i l i t i e s under
W olff by la b e l l in g t h e ir d e c is io n s to produce a d e s ir e d r e s u lt
and, th u s, attem pt to circum vent c o n s t i t u t io n a l requ irem en ts .
27
-6-
A ft e r c a r e fu l c o n s id e r a t io n o f t h is C o u r t 's d e c is io n in W o lff
v . M cD onnell, su p ra , the C ourt o f A ppeals then a r t i c u la t e d
th e p r e c is e nature o f th e inm ates' in t e r e s t :
"In l i g h t o f the d isa d va n tag es accom panying
th e t r a n s fe r s h ere a t i s s u e , the le g a l
p r in c ip le s a r t i c u la t e d in W o l f f , Gomes and
th e tr a n s fe r ca ses d e c id e d by o th e r low er
f e d e r a l c o u r ts com pel the co n c lu s io n th a t
th e due p r o ce ss c la u se i s a p p l ic a b le . At
is s u e i s n o t a s im p le lo s s o f p r iv i l e g e s ,
f o r which a h earin g may n o t be r e q u ir e d ,
W o lf f , 418 U .S. a t 571-72 n . 19, but a
s ig n i f i c a n t m o d if ic a t io n o f th e o v e r a l l
c o n d it io n s o f con fin em en t. We h o ld th a t
th e inm ate in t e r e s t s a f f e c t e d f a l l w ith in
the ' l i b e r t y ' p r o te c t e d by th e F ou rteenth
Amendment." Fano v . Meachum, 520 F . 2d a t
378.
The c o u r t went on to n o te th a t th e Commonwealth was under no
c o n s t i t u t io n a l mandate to e s t a b l is h a graduated p r is o n system
and im p lie d th a t i f th e s ta te had n o t done so , the in m ates '
in t e r e s t may n o t have f a l l e n under th e p r o t e c t io n o f th e
F ou rteenth Amendment. _Id a t 379 a t n o te 6. Thus th e a n a ly s is
and the language o f the U nited S ta te s C ourt o f A ppeals i s
e n t i r e ly c o n s is t e n t w ith th is C o u r t 's l in e o f a n a ly s is in W o l f f .
Compare Fano v . Meachum, 520 F. 2d 379 a t n o te 6 w ith W o lff v .
M cD onnell, 418 U .S. a t 557.
I I . THE DECISION OF THE COURT OF APPEALS IS CONSISTENT WITH
DECISIONS OF OTHER LOWER FEDERAL COURTS.
P e t it i o n e r s con tend th a t th e low er f e d e r a l c o u r ts are in
c o n f l i c t w ith each o th e r and w ith th e F ir s t C ir c u it in d e c id in g
whether p ro ce d u ra l due p r o c e s s i s re q u ire d p r io r t o t r a n s fe r r in g
p r is o n e r s from one in s t i t u t i o n to a n oth er . T h is co n te n tio n is
sim ply erron eou s . At l e a s t s in c e the d e c is io n in W o lff v .
M cDonnell, supra , the low er c o u r ts have been unanimous in hold in g
th a t a m ajor adverse change in c o n d it io n s o f con fin em en t.
28
- 7
in c lu d in g an in t r a s t a t e t r a n s fe r o f an inm ate, g iv e s r i s e to
the p r o t e c t io n s o f the F ourteenth Amendment "as a hedge
a g a in st a r b itr a r y determ in a tion o f th e fa c t u a l p r e d ic a te f o r
im p o s it io n o f the s a n c t io n ." W o lf f v . McDonnell., 418 U.S.
a t 571-72 a t n ote 19. See e .g . C lu tch e tte v . P r o c u n ie r ,
497 F. 2d 809 (9th C ir . 1974, on re h e a r in g , 510 F. 2d 809
(1 9 7 5 ), c e r t , g ra n ted , U .S . (June 9 , 1 9 7 5 ); Palm igiano
v . B a x te r , 487 F. 2d 1280 (1 s t C ir . 1 9 7 3 ), v a ca te d , 418 U .S.
908 (1 9 7 4 ), a f t e r remand 510 F. 2d 534 (1 9 7 4 ), c e r t , gran ted
U .S . (June 9 , 1 9 7 5 ); M cLaughlin v . H a l l , 520 F. 2d 382
(1 s t C ir . 1975); Stone v . E g e le r , 506 F. 2d 287 (6th C ir . 1974);
A u lt v . Holmes, 506 F . 2d 288 (6th C ir . 1 9 7 4 ); Gomes v . T r a v iso n o ,
490 F. 2d 1209 (1 s t C ir . 1 9 7 3 ), v a ca ted and remanded 418 U .S.
908, on r e c o n s id e r a t io n , 510 F. 2d 537 (1974) ;
C arlo v . G unter, _
F~, 2d _____ , C iv . No. 75-1163 (1 s t C ir . August 4 , 1 9 7 5 ); U nited
S ta tes v . C a ta la n o , 383 F. Supp. 346 (D. Conn. 1 9 7 4 );
T a i v . Thompson,
387 F. Supp. 912 (D. Hawaii 1 9 7 5 ); U nited S ta te s ex r e l . Myers
v . S i e l a f f , 381 F. Supp. 840 (E .D . Pa. 1 9 7 4 ); R obbins v .
K le in d ie n s t , 383 F. Supp. 239 (D .D .C . 1 9 7 4 ); C lon ce v . R ich a rd son ,
379 F . Supp. 338 (W.D. Mo. 1 9 7 4 ); D a ig le v . H a l l , 387 F. Supp.
652 (D. Mass. 1 9 7 5 ); W alker v . Hughes, 386 F. Supp. 32 (E.D.
2/
M ich. 1 9 7 4 ); and Romero v . Schauer, 386 F. Supp. 851 (D .C o l. 1 9 7 4 ).
2/
I t shou ld be n o ted th a t th e ca se s c i t e d by p e t i t i o n e r s ( B r ie f a t 11
support o f t h e ir co n te n t io n were a l l d ec id e d p r io r to W o lf f ,
a t a tim e when some co u r ts were s t i l l s t r u g g lin g w ith the
q u estion o f th e a p p l i c a b i l i t y o f th e due p r o ce ss c la u se to any
p r iso n p r o ce e d in g . Even th en , the m a jo r ity o f c o u rts were in
agreement as to the a p p l i c a b i l i t y o f due p r o c e ss t o p r iso n
d is c ip l in a r y p ro ce e d in g s such as th ose con du cted in the in s ta n t
ca se . S ee, e . g . , Schumate v . P eop le o f the S ta te o f New Y ork ,
373 F. Supp. l i6 6 (S .D .N .Y l llTTlM §19 83 c la im v a l id where the
29
Therefore, since Wolff v. McDonnell, the lower federal
co u r ts have been v i r t u a l ly uniform in r e q u ir in g due p r o ce ss
in a v a r ie t y o f p r iso n p ro ce e d in g s , in c lu d in g in t r a s t a t e
t r a n s fe r s . The C ourt o f A ppeals d e c is io n i s thus e n t i r e ly
c o n s is t e n t w ith d e c is io n s o f o th e r low er fe d e r a l c o u r ts fa ce d
w ith s im ila r is s u e s .
2 / con tin u ed
c h a ra c te r o f con fin em en t i s s u b s t a n t ia l ly ch a n ged ); Beatham v .
Marson, 369 F. Supp. 783 (D. Conn. 1 9 7 3 )(due p r o c e s s w ould be
a p p lic a b le to in t r a s t a t e t r a n s fe r i f inm ate tr a n s fe r r e d fo r
ap p aren tly d is c ip l in a r y r e a s o n s ) ; and B e n fie ld v . Bounds, 363
F. Supp. 160 (E.D. N.C. 1973) ( due p r o ce ss re q u ire d p r io r to
t r a n s fe r from medium to c lo s e c u s to d y ). See a ls o , S o s tr e v .
M cG innis, 442 F. 2d 178 (2nd C ir . 1 9 7 1 ); Gray v . Cream er, 465
F. 2d 179 (3rd C ir . 1 9 7 2 ); U .S. ex r e l . M il le r v . Twomey, 479
F. 2d 701 (7th C ir . 1973) ; King v . H ig g in s , 370 F. Supp. 1023
(D. Mass. 1 9 7 4 ), a f f ' d 495 F. 2d 815 (1 s t C ir . 1 9 7 4 ); Nolan v .
S c a fa t i , 430 F. 2d 548 (1 s t C ir . 1 9 7 0 ); K e s s le r v . Cupp, 372
F. Supp. 76 (D. O re. 1 9 7 3 ); Bowers v . Sm ith, 353 F. Supp. 1339
(D. V t. 1 9 7 2 ); White v . G illm an , 360 F. Supp. 64 (S .D . Iowa
1 9 7 3 ), and Landman v . R o y s te r , 333 F. Supp. 621.
-9-
I I I . THE ISSUES IN THIS CASE ARE NARROW, ARE INEXTRICABLY
BOUND TO CONSIDERATION OF MASSACHUSETTS REGULATIONS, AND DO
NOT RAISE ANY IMPORTANT QUESTION OF FEDERAL LAW.
P e t i t i o n e r s ' a s s e r t io n th a t the in s ta n t ca se "con cern s
the e x te n t o f an in fo rm a n t 's r ig h t t o remain anonymous when
h is in fo rm a tion i s b e in g used as a b a s is f o r a d m in is tra tiv e
d e c is io n s in th e p r iso n system " (B r ie f o f the P e t it i o n e r s a t
13) a ls o r e f l e c t s a t o t a l m isunderstanding o f th e is s u e s and
o f th e Court o f A p p ea ls ' d e c is i o n . The C ourt o f A ppeals
d e c is io n r e f l e c t s i t s awareness th a t th e in s t a n t ca se i s
"ex trem ely narrow" in s co p e . Fano v . Meachum, 520 F. 2d . a t
374. The C ourt again q u ite p r o p e r ly lo ok ed to W o lf f v .
M cD onnell, su p ra , as gu idance f o r the p roced u res re q u ire d when
a d e c is io n o f p r iso n o f f i c i a l s im poses a s u b s ta n t ia l adverse
change in th e c o n d it io n s o f con finem ent b ecau se o f a s p e c i f i c
p r io r con d u ct. These p roced u res in c lu d e (1) n o t ic e which
g iv e s th e charged p a rty a chance to m arsh a ll th e f a c t s in h is
defen se and to c l a r i f y what the charges are in f a c t ; (2) an
op p ortu n ity to be h eard ; and (3) a w r it te n statem ent by the
fa c t f in d e r s as to th e e v id e n ce r e l i e d on and the rea son s f o r
the a c t io n . Id a t 5 6 4 -6 5 . The c o u r t con clu d ed th a t th ese
p roced u res shou ld govern th e in t r a s ta t e t r a n s fe r o f p r iso n e r s
from a minimum s e c u r it y to a maximum s e c u r ity f a c i l i t y on the
b a s is o f a l le g a t io n s o f s p e c i f i c p r io r m iscon d u ct, absent a
dem onstration o f s u b s ta n t ia l in s t i t u t i o n a l reasons in a
3/
p a r t ic u la r case f o r f a i l i n g to f o l lo w such p ro ce d u re s . Fano
v . Meachum, 510 F. 2d a t 379.
3/
Any o th e r r e s u l t would be p a ra d o x ica l in th a t i t would a llow
p r iso n o f f i c i a l s t o circum vent W o lf f by s u b s t i tu t in g a t r a n s fe r
f o r o th e r d is c ip l in a r y sa n ct io n s and would thus r a is e s e r io u s equ a l
p r o te c t io n problem s. Gomes v . T r a v iso n o , 510 F. 2d a t 539.
31
-10-
The C o u r t 's b a la n cin g o f the r e s p e c t iv e in t e r e s t s o f the Stab
and o f th e p r iso n e r s c o r r e c t ly began w ith th e r e a l i z a t io n
th a t th e a p p l i c a b i l i t y o f due p r o ce ss p r o t e c t io n s beyond
th o se a r t i c u la t e d in W o lff was a m atter l e f t t o the sound
d is c r e t io n o f the o f f i c i a l s a t s ta t e p r i s o n s ." W o lf f v .
M cD onnell, 418 U.S. a t 565. See a ls o , P a lm igiano v .
B a x te r , 487 F. 2d 1280, 1286 (1 s t C ir . 1 9 7 3 ). The C ourt
p r o p e r ly co n s id e re d th e d is c ip l in a r y r e g u la t io n s prom ulgated
by th e Department o f C o rre c t io n to be r e f l e c t i v e o f th e p rop er
b a la n ce s tru ck by p e t i t i o n e r s in th e M assachusetts p r iso n
system . These d is c ip l in a r y r e g u la t io n s e x p l i c i t l y p r o v id e f o r
th e use o f in form ant in fo rm a tio n at h ear in gs and r e q u ire s the
Board Chairman to summarize such in fo rm a tion f o r th e accu sed
a /
inm ate. Thus, th e b a la n ce was s tru ck between th e e q u ita b le
treatm en t o f p r is o n e r s and th e s e c u r ity needs o f the p r is o n ,
in th e f i r s t in s ta n c e , by M assachusetts p r iso n o f f i c i a l s
th em se lv es . The C ourt o f A ppeals m erely re co g n iz e d th a t once
th e se p roced u res a re e s ta b lis h e d f o r some in m ates, th ey cannot
be a r b i t r a r i l y d en ied o th e r inm ates w ith ou t a dem onstration
th a t th e p roced u res are unworkable o r unduly burdensom e. Fano
v . Meachum, 520 F. 2d a t 380. T h is narrow h o ld in g n o t on ly
r e f l e c t s p rop er r e s p e c t f o r th e d is c r e t io n o f s ta t e c o r r e c t io n s
o f f i c i a l s b u t a ls o , q u it e c o r r e c t l y , r e c o g n iz e s th a t t h e ir
d i s c r e t io n i s n o t a b s o lu te . See W o lf f v . M cD onnell, p a ssim .
_ 4 /
The p e r t in e n t s e c t io n o f th ese r e g u la t io n s i s s e t ou t in
the o p in io n o f th e D i s t r i c t C ourt (App. 21) and o f th e Court
o f A ppeals (App. 3 5 -3 6 ) .
32
-11-
F in a l ly , the is s u e s p resen ted by t h is ca se are q u ite
d i f f e r e n t from th o se r a is e d in U nited S ta te s ex r e l . Haymes
v . M ontanye, 505 F. 2d 977 (2nd C ir . 1 9 7 4 ), c e r t - g ra n ted ,
U .S . (June 30, 1 9 7 5 ). In Haymes, th e p r is o n e r a l le g e d
th a t h is t r a n s fe r from one in s t i t u t i o n to another w ith in the
s ta t e was in ten d ed as punishment and, t h e r e fo r e , due p r o ce ss
p r o te c t io n was r e q u ir e d . The two in s t i t u t i o n s , how ever, were
b o th maximum s e c u r ity p r is o n s w ith v ery s im ila r c o n d it io n s .
In th e in s t a n t c a s e , th e p e t i t i o n e r s agreed th a t th e c o n d it io n s
a t th e maximum s e c u r it y in s t i t u t i o n were more adverse than
th ose a t th e medium s e c u r it y in s t i t u t i o n . In a d d it io n ,t h e c o u r t
found th a t th e Commonwealth had d e l ib e r a t e ly d i f f e r e n t ia t e d
medium and maximum s e c u r it y in s t i t u t i o n s to p ro v id e graduated
co n d it io n s o f con fin em en t based on an in m a te 's b e h a v io r and
th a t a t r a n s fe r from M .C .I . N o r fo lk to M .C .I. W alpole was
s p e c i f i c a l l y a u th o r ize d by th e Commonwealth as a s a n c t io n f o r
m iscon du ct.
F in a l ly , the fa c t u a l is s u e s l e f t u n reso lv ed in Haymes have
been fu rn ish ed in t h is ca se by a s t ip u la t e d r e c o r d w hich p r o v id e s
s u b s ta n t ia l su p p ort f o r th e C ourt o f A p p ea ls ' c o n c lu s io n s .
CONCLUSION
The in s t a n t d e c is io n i s , th e r e fo r e , a s in g u la r p ro d u c t o f
th e M assachusetts p r iso n system . There are no im portant q u e s t io n s
o f fe d e r a l law which do n o t depend on the unique circu m sta n ces
o f th is c a s e . C on sequ ently , t h is ca se i s c l e a r ly n o t a p p ro p r ia te
f o r th e C o u r t 's e x e r c i s e o f i t s d i s c r e t io n to g ra n t a p e t i t i o n
f o r a w r it o f c e r t i o r a r i .
The d e c is io n o f the U nited S ta te s C ourt o f A ppeals was
based on two co n s id e r a t io n s unique to M assachu setts : (1) a
s t a t e -c r e a t e d system o f in s t i t u t i o n s w ith graduated c o n d it io n s o f
con fin em en t, and (2) s p e c i f i c r e g u la t io n s prom ulgated by the
33
-12-
Department o f C o r r e c t io n . C le a r ly , such a d e c is io n has l i t t l e
s ig n i f i c a n c e o u ts id e o f th e Commonwealth and, th e r e fo r e ,
shou ld n o t be review ed by t h is C ourt by c e r t i o r a r i .
R e s p e c t fu lly su b m itted ,
Richard shapiro
P r is o n e r s ' R igh ts P r o je c t
2 Park Square
B oston , M assachusetts 02116
DIANNE KEEGAN
P r is o n e r s ' R igh ts P r o je c t
2 Park Square
B oston , M assachusetts 02116
JONATHAN SHAPIRO
Burnham, S tern and Shapiro
2 Park Square
B oston , M assachusetts 02116
34
In tfjp
fflmtrt of to Inttot
O ctobeb T eem , 1975
No. 75-252
LAREY MEACHUM, et al.,
PETITIONEES,
V.
ARTHUR FANO, et al.,
EESPONDENTS.
ON A W RIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
BRIEF OF THE PETITIONERS
F ean cis X . B ellotti
Attorney General
J ohn J . I b w in , J e .
Assistant Attorney General
Chief, Criminal Bureau
M ichael C. D onahue
Assistant Attorney General
One Ashburton Place
Boston, Massachusetts 02108
Attorneys for the Petitioners
35
TABLE OF CONTENTS
Opinion Below ................................................................... 1
Jurisdiction ....................................................................... 2
Questions Presented ........................................................ 2
Statement of the Case ...................................................... 3
Summary of Argument .................................................... 9
Argument ........................................................................... 12
I. There Is No Constitutionally-Recognized Inter
est Protected by the Fourteenth Amendment
Which Circumscribes the Power of a State
To Transfer a Prisoner From One Prison to
Another Within the Same Jurisdiction of Com
mitment..................................................................... 12
A. The Due Process Clause of the Fourteenth
Amendment Applies Only to Protect Recog
nized “ Liberty” or “ Property” Interests. 12
B. Absent a Statutory Basis, a System of Regu
lations, or a Clearly Defined Factual Pat
tern a Prisoner Has Only a Unilateral
Expectation of Remaining in Any Particu
lar Prison.......................................................... 16
1. A prisoner has no “ liberty” interest in
remaining in any particular prison
within the Massachusetts correctional
system....................................................... 16
2. A property interest exists only when
created by statute, regulation, or iden
tifiable rules............................................... 20
II. Even if There Is Found in This Case an Identi
fiable “ Liberty” or “ Property” Interest Pro
tected by the Constitution so as To Mandate the
Protections of the Due Process Clause the Pro-
Page
37
Table of Contents
cedures Followed by Petitioners Were Fully
Adequate................................................................... 23
A. Balancing the Interests in This Case Be-
Page
quires That the Paramount State Interest
Be Recognized................................................... 23
B. Due Process Was Satisfied by Notice of the
Proposed Transfer and an Opportunity To
Be Heard........................................................... 27
C. Due Process Does Not Require That Inform
ant Information Be Disclosed When Doing
So Will Jeopardize Institutional Security or
the Safety of the Informants......................... 30
Conclusion ......................................................................... 34
Appendix A ....................................................................... 37
T able of C itations
Cases
Arnett v. Kennedy, 416 U.S. 134 (1974) ............. 13, 20, 26
Board of Regents v. Roth, 408 U.S. 564 (1972) . . 12, 13, 14,
19, 20, 21
Cafeteria Workers Union v. McElroy, 367 U.S. 886
(1961) ......................................................................... 23, 24
Carlo v. Gunter, 520 F.2d 1293 (1st Cir. 1975), vacating
and remanding, 392 F.Supp. 871 (D. Mass. 1975)
15, 21, 26
Fuentes v. Shevin, 407 U.S. 67 (1972) 14
Goldberg v. Kelly, 397 U.S. 254 (1970) ..................... 18, 20
Gomes v. Travisono, 490 F.2d 1209 (1st Cir. 1973) . 14, 26
Goss v. Lopez, 419 U.S. 565 (1975)......... 13, 14, 19, 20, 33
Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1969) ......... 16
Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123
(1951) ......................................................................... 24> 29
London v. Denver, 210 U.S. 373 (1908) 29
38
Table of Contents
McLaughlin v. Hall, 520 F.2d 382 (1st Cir. 1975) . . . . 31, 32
Morrissey v. Brewer, 408 U.S. 471 (1972) ......... 13, 22, 27
Nolan v. Scafati, 430 F.2d 548 (1st Cir. 1970) ............. 16
Perry v. Sinderman, 408 U.S. 593 (1972) ......... 13, 20, 21
Preiser v. Rodriguez, 411 U.S. 475 (1973) ..................... 17
Price v. Johnston, 334 U.S. 266 (1948) ......................... 16
Sniadach v. Family Finance Cory., 395 U.S. 337 (1969) 14
United States ex rel. Miller v. Twomey, 479 F.2d 701
(7th Cir. 1973) ............................................................... 19
Wisconsin v. Constantineau, 400 U.S. 433 (1971) ....... 19
Wolff v. McDonnell, 418 U.S. 539 (1974) . . . . 10, 11, 12, 13,
14, 15, 16, 17, 20, 22, 24, 25,
27, 28, 29, 30, 31, 32, 34
Page
Constitutional Provision
U.S. Constitution,
Amendment X I V ................. 2, 9, 10, 12, 13, 16, 34, 35
Statutes
28 U.S.C. § 1254(1) ......................................................... 2
§ 1343 ............................................................... 3
42 U.S.C. § 1983 ........................................................... 3, 17
Massachusetts General Laws,
c. 30, §37 ............................................... 21
c. 30A, § 5 ..................................................................... 21
c. 127, § 38C ................................................................ 5
Federal Rules of Evidence, Rule 201(e) ....................... 3
Miscellaneous
Friendly, “ Some Kind of Hearing” , 123 U. Penn. L.
Rev. 1267 (1975) ....................................................... 29, 32
Note, Specifying The Procedures Required By Hue
Process: Towards Limits on the Use of Interest
Balancing, 88 Harv. L. Rev. 1510 (1975) ................. 14
39
O c t o b e r T e r m , 1975
No. 75-252
LARRY MEACHUM, et al.,
PETITIONERS,
ARTHUR FANO, et al.,
RESPONDENTS.
ON A W RIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
BRIEF OF THE PETITIONERS
Opinions Below
This case has come before the court following an opinion
of the United States Court of Appeals of the First Circuit
which is reported at 520 F.2d 374 (June 27, 1975). The
Court of Appeals affirmed in a two-to-one decision an
opinion of the United States District Court for the District
2
of Massachusetts, reported at 387 F. Supp. 664 (D. Mass.
1975). Both opinions are contained in the Appendix. Re
ferences hereinafter will be made to the applicable Ap
pendix page number.
The District Court stayed part of its preliminary in
junctive order pending appeal to the Court of Appeals
by the petitioners. (App. 2) The Court of Appeals stayed
the remainder of the District Court’s order pending their
decision on the merits of the appeal. (App. 142) The court
further stayed issuance of the mandate pending the dis
position by this court of the petition for writ of certiorari.
This court granted certiorari on December 8, 1975.
Jurisdiction
The petitioners have invoked jurisdiction of this court
pursuant to 28 U.S.C. § 1254(1).
Questions Presented
1. Whether the Commonwealth of Massachusetts has
sufficiently created an interest in remaining in any one
prison to be cognizable as “ liberty” or “ property” under
the Fourteenth Amendment of the Constitution.
2. Whether a prison inmate who is transferred, within
a state, from a medium security institution to a maximum
security institution, when there is no imposition of disci
plinary punishment at the receiving institution, is entitled,
by virtue of the due process clause of the Fourteenth
Amendment, to more than a notice of the proposed transfer
and an opportunity to be heard in opposition.
3. Whether the due process clause requires the dis
closure of informant information when, in the judgment
of prison officials, such disclosure would create a substan
tial likelihood of harm to the informants.
42
3
Statement of the Case
This action was brought in the District Court of Massa
chusetts pursuant to 42 U.S.C. § 1983. Jurisdiction was
alleged under 28 U.S.C. § 1343. The action was originally
commenced by seventeen inmates confined to the Massa
chusetts Correctional Institution at Norfolk, a medium
security prison within the Commonwealth of Massachu
setts. Six inmates, the respondents here, later filed an
amended complaint seeking declaratory and injunctive re
lief as well as damages. (App. 16) Respondents sought
to have their imminent transfer from MCI, Norfolk to
MCI, Walpole, the maximum security institution enjoined.
The respondents, [hereinafter referred to as the “ plain
tiffs” ], had been ordered transferred from Norfolk to
Walpole by the Commissioner of Correction following a
classification hearing.1 These classification boards had
1 There were no permanent regulations in the Massachusetts
correction system, prior to March, 1975, which dealt with classifi
cation issues. Commissioner’s Bulletin 72-1, which appears at
page 109 of the appendix, was the official disciplinary policy of
the Massachusetts correction system. It was not applicable to
classification proceedings. Until March of 1975 the department
operated with drafts of procedures and various informal pro
cedures. None of these appear in the record before this court.
It is important to note that the MCI, Walpole regulations
discussed by both of the courts below absolutely were not official
departmental, regulations. They were draft procedures followed
at MCI, Walpole and at no other institution in Massachusetts.
The only official regulations in this record are the disciplinary
regulations. The “ classification” hearings that are herein refer
enced were not the result of official administrative procedures.
They were, rather, informal actions followed on an institutional
level from policies which were in the process of being enacted. _
Moreover, the action of the district judge in taking judicial
notice of the disciplinary procedures in effect at Walpole effectively
denied the defendants of their opportunity to be heard within the
meaning of Rule 201(e) of the Federal Rules of Evidence. It was
not apparent to either of the parties that judicial notice was to
be taken until after the release of the District Court opinion.
Aside from the questions which arise from the manner of taking
43
4
been presented information by the superintendent of the
institution from inmate informants which linked the plain
tiffs to various disruptive activities occurring within the
institution, including the setting of numerous fires.
On August 31, 1974 there was a fire at MCI, Norfolk.
This was the first of nine serious fires which were to
plague the institution throughout the late summer and
fall of 1974. A second fire occurred on September 12,
1974. A third fire occurred on October 13. There were two
additional, and separate, fires on October 16. Another fire
occurred on October 17. There were two more fires on
October 21 and yet another fire on October 23. Each of
these fires within the institution required the assistance
of the fire departments from the surrounding communities.
(App. 123-127) Indeed, the record reflects that on Oc
tober 23 a fire occurred lasting between four and five hours
requiring no less than forty-four firefighters from the sur
rounding communities to engage in controlling the blaze.
(App. 124-127)
There were numerous other fires occurring within the
institution which did not require the summoning of out
side fire departments. On October 22 there were two
separate fires. One in room 2-15 of the school building at
the institution in which curtains and window shades showed
fire damage. The exact time of the fire was unknown.
The second October 22 fire occurred in a waste basket at
the hospital. Its origins were unknown. (App. 123-124)
All told, during the period between October 13 and Oc
tober 31, 1974, damage in excess of $100,000 was reported
at the institution. There was a loss of two living units and
judicial notice, the defendants seriously question the materiality
of the disciplinary procedures in effect at Walpole to control the
question of what classification procedures were being followed at
Norfolk. It is also not unimportant to note that the only regula
tions introduced into evidence at the trial below were the depart
mental disciplinary procedures, Commissioner’s Bulletin 72-1.
44
5
a partial loss of the laundry in the institution. (App. 120-
123)
At some time during the month of October 1974, in
formation was presented to Superintendent Meachum by
inmate informants within the institution which linked the
plaintiffs to the disruptions occurring at the prison. On
October 16, 1974, plaintiff McPherson was taken from the
general population at the institution and placed in a cell
in the Eeceiving Building at MCI, Norfolk. On October 24,
1974, the plaintiffs Fano, DeBrosky, Dussault, Hathaway,
and Boyce were taken from the general population at
Norfolk and placed in the Receiving Building. On October
25, 1974, the plaintiffs were given disciplinary reports.
In each instance the subject matter of the disciplinary
reports had been referred to the local district attorney
for investigation and prosecution pursuant to Mass.
General Laws, c. 127, § 38C.2 (App. 56)
On November 4, 1974, the plaintiffs were served with
general notices that they were to receive classification
hearings before a department review board, to determine
their custody status and a possible transfer. Fano, De
Brosky, and Dussault received the following notice:
“ The department has received information through
a reliable source that you were m possession of in
struments that might be used as weapons and/or am
munition and that you had joined in plans to use these
contraband items.
These items and plans occurred during the period
of serious unrest at MCI, Norfolk which included
many fires that posed a significant threat to lives of
2 Because of §Y II(d ) of Commissioner’s Bulletin 72-1 no_institu
tional hearing was held on the subject matter of the disciplinary
reports. The defendants determined they were barred by the
regulations from holding disciplinary hearing’s to impose institu
tional sanctions. (App. 118).
45
6
persons at MCI, Norfolk as well as serious property
damage. ’ ’
The plaintiffs Hathaway and McPherson received the
following notice:
“ The department has received information through
reliable sources that you were significantly involved
in the planning and execution of one or more of the
serious fires occurring within MCI, Norfolk in the
past few weeks. These fires caused considerable prop
erty damage and posed a very real threat to personal
safety.”
Inmate Royce was informed of the following:
“ The department has received information through
a reliable source that you were involved in the traf
ficking of contraband in MCI, Norfolk (narcotics,
barbiturates and/or amphetamines).
This occurred during a period of serious unrest at
MCI, Norfolk which included many fires, that posed
a significant threat to the lives of persons at MCI,
Norfolk as well as serious property damage.” (App.
63-67)
On November 6, as well as on November 8, 11 and 13,
classification hearings on a possible transfer were held
for each of the plaintiffs on the information referenced
in the classification notices. Each plaintiff was afforded
a personal hearing before the classification board. Each
inmate was represented by counsel or a law student. Each
was allowed to make a personal statement to the board.
All were allowed to present evidence in their behalf and,
indeed, the record reflects that certain plaintiffs called
correction officers and some submitted written statements
46
by correction officers on behalf of certain plaintiffs. The
classification board heard evidence from each of the plain
tiff’s social workers concerning their activities within the
institution. (App. 58-59; See also App. 68-109)
The classification hearings were opened by the board
reading a prepared statement. Following the statement
the board asked the plaintiff and his attorney to leave the
hearing room while the board received informant informa
tion from Superintendent Meachum. In each instance
Meachum appeared before the classification board and
testified as to the information given to him and the re
liability and credibility of the informant or informants.
(App. 58, 143-144) The board earlier had refused to call
and question the informants themselves but it did probe
into the reliability of the informants through Meachum,
who provided the board with a record of prior instances
of each informant’s information having proved reliable.
(App. 143-144; Also, App. 68, 75, 81-82, 92, 100, 105)
After Meachum completed his testimony each plaintiff was
brought back into the hearing and testimony continued.
At the conclusion of each hearing, the board announced its
recommendations. Hathaway and DeBrosky were to be
transferred to MCI, Bridgewater. Fano, Dussault, and
McPherson, were ordered transferred to MCI, Walpole.
Charles Royce was recommended to be held in administra
tive segregation for thirty days and was to be given a
second classification hearing at the end of that time. The
plaintiffs were orally informed by the board following the
conclusion of the hearings that the information presented
to it by Superintendent Meachum was the basis of the
board’s decisions and recommendations. (App. 59, 60;
Also 68-109)
Each plaintiff except Royce appealed to the commis
sioner to review the board determination and to request
7
47
that the commissioner order that they be once again placed
in general population at Norfolk. The Commissioner of
Correction personally reviewed the appeals. He did not
make an independent investigation other than speaking
with members o f . the classification board and Superin
tendent Meachum. Except for these conversations the
Commissioner of Correction relied wholly upon the written
reports prepared by the classification board for him, and
recommendations of the board. In each case, the appeal
of the plaintiffs was denied. The recommendation of the
board in the case of Fano, Dussault, Hathaway and Mc
Pherson was upheld by the commissioner. The appeal of
DeBrosky resulted in the commissioner’s recommendation
to transfer DeBrosky to MCI, Walpole rather than MCI,
Bridgewater. The commissioner overruled the board with
respect to the plaintiff Royce. The commissioner directed
that Royce be transferred to MCI, Walpole rather than
remaining in administrative segregation at Norfolk. (App.
60-61)
Royce was notified of the commissioner’s decision in a
memorandum dated November 21, 1974. Each of the other
plaintiffs was notified of the commissioner’s decision by
a letter directed to their attorney. Each letter clearly
indicated that the recommendations of the classification
board were implemented only after considerable thought
and evaluation of the informant information and the re
liability of that information. (App. 50-53)
Sometime subsequent to Commissioner Hall’s decision,
the plaintiffs were transferred to MCI, Walpole. At MCI,
Walpole they were subject to no administrative punish
ment. They suffered no loss of good time and were not
placed in segregation. As a matter of course the fact of
the transfer was noted on their institutional record and
would, therefore, be considered by various administrative
8
48
9
agencies within the Department of Correction.3 Furloughs
were available at MCI, Walpole, and remained available
to each plaintiff upon eligibility at Walpole.
Summary of Argument
1. There is no constitutionally-recognized interest, pro
tected by the Fourteenth Amendment, which circumscribes
the power of a state to transfer an inmate from one prison
to another. The due process clause of the Fourteenth
Amendment operates only to protect identifiable liberty
or property interests which are either inherent in the Con
stitution or created by virtue of a state statute, regulation
or pattern of conduct. The petitioners contend that the
Commonwealth of Massachusetts has created no such liberty
or property interest which the Constitution protects and
they further argue that there is, in the Constitution, no
inherent liberty interest which would prevent the state
from transferring -a prisoner from one prison to another
within his jurisdiction of commitment.
The Court of Appeals for the First Circuit has focused
its attention on the “ weight” of the interest asserted by
the state prisoners rather than on the “ nature” of the
claim and has rested a subjective judgment on loss to the
individual inmate. Petitioners contend that wThile a prisoner
may have a wish or desire to remain in a particular institu
tion these wishes or desires are not constitutionally recog-
3 Any change in an inmate’s condition or status of confinement
in the Massachusetts correction system would be noted in an
institutional record. The fact of the entry would, therefore, neces
sarily be included in the inmate’s institutional record. The con
sideration given that institutional record by a parole board, a
furlough board, or another administrative agency would vary
as to the individual’s entire institutional record. It may have some
effect as to furlough, parole, work release, or other privileges,
or it may have none at all. The result of the entry is entirely
speculative.
49
10
nized interests. The loss which results to an inmate as a
consequence of transfer is, accordingly, not a “ grievous
loss” of constitutional dimension.
There has been no interest created by the Commonwealth
of Massachusetts which entitles an inmate to remain in
any particular institution within its correction system.
There exists no statute, regulation, or factual pattern which
can be set forth to assert that any inmate has a legitimate
claim of entitlement to remain in that institution. In Massa
chusetts, an inmate may be transferred from one institution
to the other for a variety of reasons including population
control, program availability, adjustment to institutional
environment or numerous other factors, some of which are
incapable of precise identification. Since the Commonwealth
has created no such interest, there exists no “ legitimate
claim of entitlement” to remaining in any particular insti
tution. Therefore, no “ property” interest, cognizable by
the Fourteenth Amendment, exists so as to require pro
cedural protection.
2. If the Court should determine that some process
was indeed required, petitioners contend that the Constitu
tion was fully satisfied by a notice to the inmate of the
proposed transfer and an opportunity for that inmate to
be heard in opposition. There is a functional difference
between a disciplinary hearing, as was the case in Wolff
v. McDonnell, 418 U.S. 539 (1974), and a transfer situation
as represented by the instant case. When a situation is
presented, such as is presented by the facts below, the
decision whether or not to transfer must necessarily rest
in the sound discretion of prison officials. When informants
identify certain individuals as either the cause of disruption
or the likely cause of disruption at an institution, the
correction officials’ obligation to the informants, as well as
their obligation to other inmates, dictates that they investi
gate the credibility and relibility of the information and
50
11
that they make a determination as to whether or not a
transfer is required.
The function of a disciplinary hearing is to determine
the truth or falsity of disciplinary matters. The function
of a board sitting to judge whether or not a transfer should
occur may consider a myriad of factors including evidence
of past or predicted future misconduct. Unless procedures
could be set out which would absolutely guarantee that the
informants ’ charges could be disproved, then the source of
the information must be protected by refusing to allow
confrontation and by excluding any evidence which would
tend to identify the informant sources. There can be no
fundamental unfairness to an inmate facing transfer if he
is allowed to appear before the board and argue in oppo
sition to the transfer.
In the instant case not only were the inmates allowed to
appear before the board, but they were also represented by
counsel and allowed to call witnesses, present evidence,
and appeal the decision of the board to the Commissioner
of Correction. Further, the superintendent of the institu
tion appeared before the board, in camera, and testified to
the board that he had probed the credibility of the inform
ants and the reliability of their information. The board
examined the superintendent as to his information and
independently determined the reliability of the information
by examining the Superintendent. Such procedures fully
satisfied due process.
3. The Court of Appeals for the First Circuit mis
apprehended this court’s meaning in Wolff v. McDonnell,
supra. The Court of Appeals erred when it referred to
language in Wolff v. McDonnell as “ cryptic” and, in its
error, failed to appreciate the basic rationale behind Wolff
v. McDonnell, which required a sensitive balancing of
interests in' matters of prison discipline. Prison officials
deal in highly volatile situations. They must be afforded
51
12
the widest possible discretion consistent with fundamental
constitutional guarantees. In the instant case, the prison
officials have acted wholly within the spirit of Wolff in
balancing the interest of both inmate and informant.
In transfer cases, where both the security of the institution
and the physical safety of its occupants are implicated,
the Court should be hesitant to impose detailed and specific
procedures. While notice and an opportunity to be heard
are fundamental to any interest protected by the Four
teenth Amendment, further procedures should be left to
the good faith of corrections officials and not inflexibly set
into constitutional law.
Argument
I. T hebe I s No C onstitutionally-R ecognized I ntebest
P botectbd by th e F oubteenth A m endm ent W h ich
C ibcumscbibes th e P oweb of a S tate T o T bansfeb a
P bisoneb F bom One P bison to A notheb W it h in th e
Same J urisdiction of Com m itm en t .
A. The Due Process Clause of the Fourteenth Amend
ment Applies Only To Protect Recognized “ Lib
erty” or “ Property” Interests.
“ The requirements of procedural due process apply only
to the deprivation of interests encompassed by the Four
teenth Amendment’s protection of liberty and property.”
Board of Regents v. Roth, 408 U.S. 564, 569 (1972). The
Fourteenth Amendment does not operate in each and every
case of governmental action because “ . . . the range of
interests protected by procedural due process is not infi
nite.” Id. at 570.
The determination of whether the interest comes within
the Fourteenth Amendment’s definition of liberty or prop-
52
13
erty is made by analyzing and identifying the nature of
the interest and not by calculating the weight or gravity
of the interest. Goss v. Lopes, 419 U.S. 565 (1975); Board
of Regents v. Roth, supra; Morrissey v. Brewer, 408 U.S.
471 (1972). An identification of a protected interest in
property is generally more involved than when determining
whether or not “ liberty” within the meaning of the Four
teenth Amendment is involved because “ . . . [pjrotected
interests in property normally are not created by Consti
tution. Rather, they are created and their dimensions
defined by an independent source such as state statutes or
rules entitling the citizen to certain benefits.” Goss v.
Lopes, supra at 572-573, quoting Board of Regents v. Roth
at 577, and Wolff v. McDonnell, 418 U.S. 539 (1974), where
good time credits were accumulated under state law.4
Board of Regents v. Roth, supra, made it clear that the
“ weight” of the interest asserted was an improper con-
4 This court found in Wolff v. McDonnell, supra, that the depri
vation of good time credits involved a matter of “ real substance”
and was “ sufficiently embraced within the Fourteenth Amendment
‘ liberty’ to entitle [the prisoner] to those minimum procedures
appropriate under the circumstances and required by the due
process clause to insure that the state-created right [was] not
arbitrarily abrogated” 418 U.S. at 557. The fact that Goss v.
Lopez, supra, talks about the Wolff v. McDonnell good time credit
issue as one of a state created “ property” interest and Wolff itself
refers to the interest as “ sufficiently embraced” within the Four
teenth Amendment “ liberty” interest does not render Goss a,nd
Wolff inconsistent.
Since Wolff involved good time credits, a state created interest
of monumental importance to a prisoner, as it involves the quicken
ing of his ultimate release, a true “ liberty” interest was involved.
However, since the interest itself was state created it also bears
those aspects of the property rights spoken of in Goss v. Lopez,
supra. Wolff deals with a liberty interest insofar as release is
always ultimately a liberty question. It is a property concept
within the meaning of the Fourteenth Amendment because the
right created by the state is clearly “ entitlement” within the
meaning of Goss v. Lopez, supra; Board of Regents v. Roth, supra;
Arnett v. Kennedy, 416 U.S. 134 (1974); and Perry v. Sinderman,
408 U.S. 593 (1972). Of course, Wolff may also clearly be read
as finding a state-created “ liberty” interest. Id., at 558.
53
14
sideration in determining whether or not the right was
applicable. See also Note, Specifying The Procedures
Required by Due Process: Towards Limits on the Use of
Interest Balancing, 88 Harv. L. Rev. 1510 (1975). The
Court recognized in Roth that the teacher’s interests in his
re-employment “ were of major concern to him” 408 U.S.
at 570, but it also recognized that the determination of
whether, procedural due process applied was, in the first
instance, related to the nature of the interest rather than
to the gravity of the deprivation that he might suffer.
See also Fuentes v. Shevin, 407 U.S. 67 (1972), Sniadach
v. Family Finance Corp., 395 U.S. 337, 342 (1969) (Harlan,
J., concurring). Indeed, Goss v. Lopez, supra, stated that
as “ long as a property deprivation is not de minimis” the
gravity of the interest was “ irrelevant to the question of
whether account must be taken of the due process clause.”
See Note, Specifying the Procedures Required by Due
Process: Towards Limits on the Use of Interest Balancing,
88 Harv. L. Rev. at 1512, n. 8.
This analysis is of primary importance in the instant
case because the Court of Appeals, below, misapplied the
requirements that this Court has laid out in determining
whether or not due process applied in the first instance.
Gomes v. Travisono, 490 F.2d 1209 (1st Cir., 1973), was
vacated and remanded following this Court’s decision in
Wolff. In the remand, at 510 F.2d 537, the Court of
Appeals misapprehended this Court’s holding in Wolff and
stated that Wolff reaffirmed the proposition that “ prisoners
suffering the prospect of serious deprivations are entitled
to some process” . 510 F.2d at 539. The First Circuit’s
error was repeated in the instant case. After comparing
the differences between interstate transfers, as was the case
in Gomes, and intrastate transfers, as was the situation in
the case at bar, the Court of Appeals stated that the dis-
54
15
advantages here were both more serious and more certain
than those flowing from interstate transfers, and thus the
weight of the deprivations mandated similar procedures
to those required by Wolff. In doing this the court specifi
cally cited its second Gomes opinion that interpreted Wolff
as holding that ‘ ‘ prisoners suffering the prospect of serious
deprivations are entitled to some process” . (Emphasis
supplied).
In the opinion below, the Court of Appeals never specifi
cally analyzed the nature of the interest asserted. It, rather,
assumed that there was a protected liberty interest in a
prisoner remaining at an institution within the Common
wealth of Massachusetts by weighing the loss to the inmate
upon transfer. The petitioners assert that the Court of
Appeals was in error, not so much for the conclusion it
reached, although we question that also, but, rather, for
its failure to analyze the nature of the interest asserted in
determining whether or not process was due.5
5 The First Circuit’s view of due process as dependent upon the
“ weight” of the interest is not unusual. Although the cases are
far too numerous to cite, a review of relevant lower court decisions
in the prison context will almost invariably find the analysis
turning on the question o f how much loss the prisoner has suffered.
Once the court determines that the loss has reached a certain
quantum then due process is almost always mandated. Indeed,
in Carlo v. Gunter, 520 F.2d 1293 (1st Cir., 1975) vacating and
remanding 392 F. Supp. 871 (D. Mass., 1975), the First Circuit
made no effort whatsoever at analyzing the nature of the interest.
Rather, it simply looked at the alleged sufferings involved and
determined that there was enough of an interest to mandate pro
cedures. In doing so it vacated a very thoughtful order made by
a district judge after a trial which occurred during a riot at the
maximum security institution in Massachusetts. The Court of
Appeals later denied rehearing without argument. The issue in
question in Carlo was whether due process applied to a cell re
assignment within the same institution. The First Circuit held
process was due, even though the transfer was within the same
prison, because harsher conditions o f confinement were involved.
55
16
B. Absent a Statutory Basis, a System of Regulations,
or a Clearly Defined Factual Pattern a Prisoner Has
Only a Unilateral Expectation of Remaining in Any
Particular Prison.
1. A prisoner has no “ liberty” interest in remain
ing in any particular prison within the Massa
chusetts correctional system.
It is clearly established that the Constitution does not
stop at the prison gate. Jackson v. Bishop, 404 F.2d 571
(8th Cir. 1969). Petitioners do not contend otherwise.
Indeed, in the First Circuit, at least since Nolan v. Scafati,
430 F.2d 548 (1st Cir. 1970), Massachusetts prison officials
have been aware that they were under an affirmative obliga
tion to provide “ some assurance of elemental fairness”
when dealing with substantial individual interests of pris
oners. Id. The issue has never been whether the Consti
tution was applicable as a general matter but rather the
degree to which it controlled in specific instances. It is
clear that “ [1] awful imprisonment necessarily makes un
available many rights and privileges of the ordinary citi
zen . . . , ” Wolff, at 555. Because liberty in its full sense is
a concept of free men its retraction is warranted and
justified by the considerations underlying our penal system,
upon a criminal conviction. Price v. Johnston, 334 U.S. 266,
285 (1948). “ There is no iron curtain drawn between the
Constitution and the prisons of this country,” Wolff, at 556,
but what a “ liberty” interest is in the prison context is
a difficult and somewhat obscure question; particularly so
when the “ liberty” is allegedly a right to remain in one
prison rather than another.
Wolff held that a state-created statutory right was
“ sufficiently embraced” by the Fourteenth Amendment so
56
17
as to mandate procedures to ensure that the right was not
arbitrarily abrogated.6 418 U.S., at 557.
In the instant case Massachusetts has created no interest.
As Judge Campbell said in his dissent below:
. . it should be recognized that Massachusetts has
not conferred a statutory right upon inmates to be at
one institution rather than another. While Walpole
is a more secure facility than Norfolk, a prisoner has
no vested right to serve his term in one place rather
than the other.” (App. 153).
This case then differs from Wolff. The majority opinion
below, however, did not address the issue in terms of a
state-created interest, because to the First Circuit the ques
tion was not the nature of the interest. To the Court of
Appeals the “ . . . question thus becomes one of whether
the detriment worked by an intrastate transfer from a
medium security institution to a maximum security prison
is serious enough to trigger the applications of due process
protections. (App. 147). (Emphasis supplied.)
6 Good time credits have always been regarded as something of
a special interest to state prisoners. Prior to Wolff, Preiser v.
Rodriguez, 411 U.S. 475 (1973) presented the question of whether
or not an action could be pursued under 42 U.S.C. §1983 for the
restoration of good time credits. The deprivation of good time
credits is an issue of significantly different importance to an
inmate than one affecting his specific place of confinement. Indeed,
in Wolff, release could have been affected by up to eighteen months.
Petitioners suggest that not only is good time an issue of funda
mental importance to an inmate, but it is also something that is
susceptible of objective identification when determining whether
or not a grievous loss exists. Limiting determinations of grievous
loss to such objective determinations as deprivations of good time
or placement in segregation at the receiving institution would limit
subjective approaches by the lower courts. Such a limitation to
objective factors would prevent the question of whether grievous
loss has been suffered from turning on subjective considerations
going to the weight of the interest asserted.
57
18
We contend the Court of Appeals was in error. A pris
oner has no liberty interest in being in a particular prison.
Confinement in any institution creates no right to remain
in that institution. As stated by Judge Campbell:
“ one must ask not only whether a particular event
may cause loss to the prisoner but whether one in
the position has any claim to what was taken away.”
Judge Campbell further amplified this in a footnote to
the dissent:
A civil servant sent to Alaska, a soldier sent to
Vietnam, or a prisoner sent to another institution may,
in a private sense, suffer “ grievous loss” , but the
nature of the organization and of their role precludes
acknowledging any “ liberty” or “ property” right to
remain in one location. Notwithstanding language in
Morrissey v. Brewer, 408 U.S. 471, 481-84 (1972),
cautioning against distinctions based on “ privileges”
as opposed to “ rights” , it is necessary to consider
not only whether what happens causes subjective loss
to the individual, but whether he has a right to any
protection against that loss. (App. p. 154)
An argument which turns on the gravity of the deprivation
will almost always require a subjective judgment by the
individual judge. This creates a danger that constitutional
analysis will be personalized and that “ procedural” due
process will become a substantive matter. See Goldberg
v. Kelly, 397 U.S. 254, 271 (1970) (dissenting opinion of
Mr. Justice Black). Again, as stated by Judge Campbell:
“ Prisoners are, by definition, prisoners. Changes in
the conditions of confinement, whether involving a
58
19
different cell assignment, a new meal schedule, or
transfer to a new facility, seem to me to fall within
the state’s general right to confine, safeguard and
rehabilitate. To treat them as “ liberties” belonging
to the inmate invites greater interferences with the
management of prisons than seems either wise or con
stitutionally mandated.” (App. 154).
Liberty is partially the ability to come and go, to do or
not do, to conform or to rebel. It is a concept of free men
rendered largely inapplicable by a criminal conviction.
“ The restraints and the punishment which a criminal con
viction entails do not place the citizen beyond the ethical
tradition that accords respect to the dignity and intrinsic
worth of every individual. . . ” United States ex rel. Miller
v. Twomey, 479 F.2d 701, 712 (7th Cir. 1973), but a criminal
conviction does mean, at the very least, that the individual
can no longer choose where he would prefer to be or not be.
Unless the state has created or conditioned the interest,
confinement in a particular institution does not implicate
any “ liberty” protected by the due process clause.7
7 Petitioners contend that there is no distinct “ liberty” interest
implicated by an entry in the prisoner’s institutional file. _ A pris
oner confined to a maximum or medium security institution does
not have the same qualitative interest in maintaining his com
munity standing as the students had in Goss v. Lopez, supra at 574
or the teacher had in Board of Regents v. Roth, supra at 573. The
same danger to community standing does not exist here as existed
in Wisconsin v. Const ant ineau, 400 U.S. 433 (1971) because the
individuals in question are simply not similarly situated. There is,
and must necessarily be, harsh as it may seem in terms of constitu
tional analysis, a distinction between protections the due process
clause affords free men when they are in an adversary relationship
with the government and the protections that the constitution
affords a prisoner confined as the result of a criminal sentence.
There is no separate interest effected by an entry in the prisoner ’s
institutional record. An entry that might indicate a transfer is
nothing more than a reflection of the state’s power to control, safe
guard, and rehabilitate the individual given to their custody as
a result o f a criminal conviction.
59
20
2. A property interest exists only when created by
statute, regulation, or identifiable rules.
Petitioners recognize that even if there is no liberty in-
trest inherent in a prisoner’s desire for confinement in
a particular institution the state may well create a “ prop
erty” interest by statute, regulation, or a clearly defined
factual pattern which can be shown to have created an
entitlement in the inmate. Goss v. Lopez recognized that
property interests are not normally created by the Con
stitution, 419 U.S. at 572.
Rather, they are created and their dimensions defined
by an independent source such as state statutes or
rules entitling the citizen to certain benefits. Board
of Regents v. Roth, 408 TJ.S. 564, 577 (1972).
The welfare recipients in Goldberg v. Kelly, 397 U.S. 254
(1970) had statutory rights to their benefits. The inmates
in Wolff had statutory rights, absent serious misconduct,
to their good time credits. The teacher in Perry v. Sinder-
man was allowed to prove a de facto tenure program.
The employee in Arnett v. Kennedy, 416 TJ.S. 134 (1974)
was allowed to invoke the procedural protections of regu
lations entitling him to continued employment absent suf-
fieent cause for discharge.
As Roth noted, certain attributes of property interests
have emerged from the procedural due process cases de
cided by this Court in recent years.
To have a property interest in a benefit, the person
clearly must have more than an abstract need or de
sire for it. He must have more than a unilateral ex
pectation of it. He must, instead, have a legitimate
claim of entitlement to it. It is a purpose of the ancient
60
21
institution of property to protect those claims upon
which people rely in their daily lives, reliance that
must not be arbitrarily underlined. It is a purpose
of the constitutional right of a hearing to provide an
opportunity for a person to vindicate those claims.
408 U.S. at 577.
In the instant case there are no statutorily created
rights to remain in, or go to, any institution in the Com
monwealth of Massachusetts, subsequent to the original
sentencing decision. Until March of 1975 there were no
specific regulations which dealt with the question of
“ classification” transfers. See generally Carlo v. Gunter,
520 F.2d 1296 n. 5. Until March of 1975 the Common
wealth of Massachusetts made do with a variety of draft
procedures and informal policies which dealt with the
question of intrastate transfer. At the time of the transfer
of these plaintiffs there had been no regulations filed by
the Massachusetts Department of Correction pursuant to
the Commonwealth’s Administrative Procedure Act. See
Mass. General Laws, ch. 30A, § 5, ch. 30, § 37.
Moreover, there is nothing in the record that would in
dicate the existence of any de facto system such as was
the case in Perry v. Sinderman. There are no reasons ap
parent in the record for the plaintiffs confinement at
Norfolk. There is no conduct, evident from the record,
which would indicate any pattern of behavior on the part
of state officials which could be alleged to create a property
entitlement in remaining at MCI, Norfolk.
The District Court and Court of Appeals both relied
substantially upon the fact that the Commonwealth of
Massachusetts had deliberately differentiated in levels of
confinement between these two institutions. The petitioners
suggest that the levels of confinement in existence at these
institutions are constitutionally irrelevant absent a legi-
61
22
timate claim of entitlement to reman at either of the in
stitutions. Absent a state created interest, cognizable as
either liberty or property, the prisoners’ interest in re
maining in any particular institution constitutes only a
unilateral expectation requiring no procedural protections
prior to termination.
The fact that there may be, arguably, a form of ‘ ‘ punish
ment” involved, or that the transfer itself might result in
some form of hardship to the prisoner is also constitu
tionally irrelevant unless it can be shown that a legitimate
claim of entitlement exists to the particular benefit in
question.8 I f the prisoner’s liberty or property interests
are not implicated, the motivation of the Commonwealth
in transferring the prisoner is of no constitutional signif
icance. Unless a claim of entitlement can be established by
the plaintiffs there is no constitutional interest affected by
a transfer from a medium security institution to a maxi
mum security institution. There are no rules in Massachu
setts which prevent an inmate from being transferred
from one prison to any other prison. Any inmate con
fined within the Massachusetts correctional system is sub
ject to transfer no matter how exemplary his conduct at
an institution. As a matter of practice, of course, this
rarely, occurs; but, the harsh reality of prison life dictates
that such questions not be frozen into a constitutional
rule.
8 Petitioners also suggest that transfers of inmates from one
institution to another is far less of a “ grievous loss” than found
by the Court of Appeals. While there is no doubt that MCI,
Norfolk is a more desirable institution than MCI, Walpole, there
is no loss in the instant case which would correspond to the loss
suffered by the inmates in Wolff (up to 18 months good time)
and Morrissey v. Brewer, (revocation of a conditional liberty, the
freedom to be at large in society with minimal restraints). Indeed
in the instant case there was no loss of good time and no segregation
at the receiving institution. See n. 6, supra.
62
23
As stated by Judge Campbell:
As prisoners are involuntary inhabitants and some
are dangerous and unpredictable, administrators must
decide whether a given inmate is more likely to escape
from one place than another, and whether the mere
presence of an inmate in a given setting is likely to
be volatile and more dangerous. Such judgments may
often be little more than educated guesses based on
suspicions. They may involve predictions of future
dangerousness which in turn echo assumptions as to
the inmates role in past disturbances. While I can
understand the argument that no adverse assumptions
should ever be made without minimal due process —
hearing, confrontation of witnesses, and the like —
I do not think the realities of the state-prisoner rela
tionship admit to classifying such decisions, when
relating to a transfer, as a liberty interest of the
prisoner. Penal authorities will perhaps think it best
to afford safeguards, but I do not think the Constitu
tion can reasonably be said to require them. (App. 155)
II. E ven I e T hebe I s F ound in T his Case an I dentifiable
“ L iberty” oe “ P roperty” I nteeest P rotected by the
Constitution So as to M andate th e P rotections oe
the D ue P rocess Clause the P rocedures F ollowed
by P etitioners W ere F ully A dequate.
A. Balancing the Interests in This Case Requires
That the Paramount State Interest Be Recognized.
The procedures that “ . . . due process may require
under any given set of circumstances must begin with the
determination of the precise nature of the government
function involved as well as of the private interest that
has been affected by governmental action.” Cafeteria
Workers Union v. McElroy, 367 U.S. 886, 895 (1961).
63
24
“ The very nature of due process negates any concept of
inflexible procedures universally applicable to any imagin
able situation.” Id. As noted by Mr. Justice Frankfurter
in Joint Anti-Facist Committee v. McGrath, 341 U.S. 123,
162-163 (1951) “ Due process, unlike some legal rules is
not a technical conception with a fixed content unrelated
to time, place and circumstances. It is compounded of
history, reason, the past course of decisions . . . . ” See
also Cafeteria Workers v. McElroy, supra, at 895.
In determining the precise nature of the government
function the question involved in the prison context is
necessarily more complex.
“ . . . It is immediately apparent that one cannot au
tomatically apply procedural rules designed for free
citizens in an open society, or for parolees or proba
tioners under only limited restraints to the very dif
ferent situation presented by a disciplinary proceed
ing in a state prison.” Wolff, at 560.
Because of the atmosphere in which the hearings must
occur, the full panoply of due process procedures that
have been required in other contexts are inappropriate
to the prison environment. As Wolff noted:
“ Prison disciplinary proceedings . . . take place in
a closed, tightly controlled environment peopled by
those who have chosen to violate the criminal law and
who have been lawfully incarcerated for doing so.
. . . They may have little regard for the safety of
others or their property or for the rules designed to
provide an orderly and reasonably safe prison life
. . . Guards and inmates co-exist in direct and inmate
contact. Tension between them is unremitting. Frus
tration, resentment, and despair are commonplace.
64
25
Relationships among the inmates are varied and com
plex and perhaps subject to the unwritten code that
exhorts inmates not to inform on a fellow prisoner.”
418 U.S. at 561-562.
If, as Wolff found, the disciplinary proceedings in the
Nebraska Penal Institution required a sensitive and con
sidered application of procedures, what must be the case
here! The record discloses that since the last week of
August, 1974, the institution at Norfolk had suffered series
of fires which clearly placed the security of the entire
institution in jeopardy. Petitioners contend that when
Meachum was informed of the plaintiffs’ involvement in
the disruptions occurring at the institution he was justified,
if not obliged, to take immediate and direct action to secure
and order the institution. Because the precise nature of
the government function involved in this case is of such
sensitivity and such importance to the safety of the Nor
folk population, petitioners suggest that the procedures
required of them, assuming arguendo that procedures were
in fact mandated, are limited to notice to the inmate of
the proposed transfer and an opportunity for that inmate
to be heard in opposition to the transfer. Petitioners sug
gest that to require more complete procedures in a situa
tion such as presented by this case would be to add to
the potential danger inherent in such situations, as well
as to possibly escalate the confrontations which neces
sarily occur between inmates and authority when any
question of misconduct is present, cf. Wolff, at 562.
Moreover, transfers may be carried out for a variety
of reasons. They may occur for reasons of punishment.
They may be carried out for reasons of space allocation
within the institution, for reasons of program availability
or unavailability at a particular institution, or simply on
general grounds which are not capable of precise identifica-
65
26
tion. The Court of Appeals in its opinion below, following
its earlier opinion in Gomes v. Travisono, 510 F.2d 537
(1974) refused to analyze the transfers in terms of whether
they were of an administrative rather than punitive nature.
In doing so, we suggest, the Court of Appeals was, in
effect, requiring correction officials to prove charges of
misconduct as a matter of procedural due process prior to
the transfer. If the Court of Appeals is correct in as
suming that administrative and punitive transfers ought
not to be distinguished then the purpose of the hearing,
whatever the reason for the transfer, will be always to
force correction officials to substantially justify the pur
pose of whatever administrative action they are going to
take, i.e., transfer. For a further example of the Court of
Appeals analysis insofar as it tends to a substantive judg
ment of what correction officials do See Carlo v. Gunter,
520 F.2d at 1297, where Judge McEntee required hearings
to determne whether or not there was a “ reasonable
basis” for a cell transfer within the same institution. The
approach of the Court of Appeals requires substantive
rather than procedural judgments. The approach is itself
a subtle repudiation of the due process concept that the
procedures themselves will insure the accuracy of the fact
finding process, cf. Arnett v. Kennedy, supra, at 178
(opinion of Mr. Justice White).
As stated by Judge Campbell in a footnote to his dis
senting opinion below:
Administrative realities may sometime necessitate
the flexibility to transfer even on the basis of demon
strably inadequate information. If, for example, the
warden has narrowed the likely cause of disruption
down to several inmates, he may deem it prudent to
transfer all without having proof that all are in
volved. A forty percent risk that an inmate will dis
rupt or set a fire may, in some circumstances, be too
66
27
great to take. The safety of other inmates and prison
personnel may have to be weighed against fairness
to certain individuals.
B. Due process was satisfied by notice of the pro
posed transfer and an opportunity to be heard.
In terms of analyzing the precise nature of the govern
mental function and interest, it should be apparent that
whatever the range of alternatives available to correction
officials in other situations, they were simply not present
here. Unless a hearing can determine with absolute cer
tainty the fact that the informants are incorrect, there is
no alternative to a transfer. Meachum’s obligation to per
sonnel at the institution, not to mention the inmates con
fined to the institution, dictated that he take specific and
firm action to remove those who had been identified to
him as the cause of the disruption. To require, as the
District Court and the Court of Appeals have required,
that the case be treated as one would treat an ordinary
administrative matter is.to both misapprehend the nature
of the problem which faces correction officials as well as
to fail to appreciate the sensitivity and dangers inherent
in a prison environment. One may gather from the opinions
of the Court of Appeals that correction officials are re
quired to establish, on the record, a “ rational basis” to
effect a transfer. See 520 F.2d at 1297. The analysis of
the Court of Appeals goes substantially beyond what this
Court required in either Wolff or Morrissey v. Brewer,
supra.
A hearing which will determine whether or not good time
credits were justifiably removed is functionally different
than a hearing which must determine whether or not a
purportedly disruptive inmate should be removed from
an institution. The question of whether the misconduct
67
28
occurred so as to justify the removal of good time is an
issue generally susceptible of resolution within the insti
tution. Once the hearing occurs and a decision is reached
the matter is closed. In cases similar to the instant one,
however, no such resolution can be reached. Even if an
inmate can establish by reasonable evidence that he might
not be the cause of disruption his transfer may yet have
to occur because the obligations of the superintendent to
the safety and security of other individuals may well
prevent him from waiting until there is uncontrovertible
proof of a bad act. (See App. 154, n. 2).
The transfer of an inmate based on a prediction of
future bad acts is, then, an issue radically different from
the question faced by this court in Wolff. In disciplinary
proceedings the hearing may encompass the question of
whether or not the alleged misconduct did in fact occur.
Action taken by correction officials as a result of that hear
ing is then truly punitive. A transfer hearing is an entirely
different matter. It may bear aspects of a disciplinary
hearing insofar as allegations of past misconduct may be
heard but it is also truly “ administrative” insofar as it
must determine the question of how past conduct bears
upon future behavior; and whether or not that behavior is
consistent with institutional goals. The question of whether
to transfer an individual from one institution to another
is rarely, if ever, susceptible of the precise issue identifi
cation that is the case in disciplinary proceedings. Ques
tions such as those which faced the Classification Board
below are not susceptible of easy “ yes” or “ no” answers.
Hard decisions have to be made and, if any procedures are
found to be due, they must necessarily recognize the need
for administrative flexibility.
Once it is determined that due process procedures are
required the question then becomes what particular pro
cedures are due under the circumstances of the case.
68
29
[A] hearing in its very essence demands that he who
is entitled to it shall have the right to support his
allegations by argument however brief, and, if need
be, by proof however informal.
Londoner v. Denver, 210 U.S. 373, 386 (1908).
In Joint Anti-fascist Refugee Committee v. McGrath,
supra, Mr. Justice Frankfurter said that “ a person in
jeopardy of serious loss” must be given “ notice of the
case against him and an opportunity to meet it.” 341 U.S.
at 171-172. This court recognized in Wolff v. McDonnell
that the procedures appropriate to a prison administrative
hearing were necessarily more limited than those required
outside of the prison context. Nevertheless, when a process
is found to be due, the question remains as to what must
be minimally afforded. Judge Henry Friendly has asserted
that the elements of a fair hearing must include
1. An unbiased tribunal;
2. Notice of the proposed action and grounds asserted
for it;
3. An opportunity to present reasons why the pro
posed action should not be taken.
Friendly, “ Some Kind of Hearing” , 123 IT. Penn. L. Rev.
1267 (1975).
Although he discussed other elements of due process,
Judge Friendly found these procedures to be fundamental.
Petitioners suggest that Judge Friendly’s statement is a
fair and adequate criteria for what ought to be required
here. As this Court recognized in Wolff the right to
present evidence was basic to a fair hearing. The right
to call witnesses, however, carried the potential for dis
ruption and for interference with the swift punishment
that in individual cases may be essential to carrying out
69
30
the correctional program. 418 U.S. at 566. Petitioners
suggest that the rationale employed in Wolff should be
controlling to the facts of this case.
The plaintiffs in the instant case were afforded a notice
of the proposed transfer. They were given the opportunity
to be heard in opposition to the transfer. They were repre
sented by competent counsel at the hearing, something that
Wolff did not mandate. And, they were further afforded
the right to call witnesses and appeal the decision of the
board to the Commissioner of Correction and to make
such arguments to the Commissioner as would bring to
his attention what they regarded as unfair treatment in
the institution. In the context of this case, petitioners
surely cannot be required to do more.
C. Due Process Does Not Require That Informant
Information Be Disclosed When Doing So Will
Jeopardize Institutional Security or the Safety of
the Informants.
The basis of the action by the Classification Board was
information presented to it by Superintendent Meachum.
When Meachum appeared before the board, the board in
quired into the credibility of the informants and the relia
bility of their information. It was determined that to
provide the plaintiffs with a summary of the evidence
beyond the general assertions contained in the notice, and
the oral representation that the decision of the board was
based upon Meachum’s testimony, would be to seriously
compromise the physical safety of the informants.
This situation was clearly foreseen by this court in Wolff
when it said:
“ Retaliation is much more than a theoretical possi
bility ; and the basic and unavoidable task of providing
70
31
reasonable personal safety for guards and inmates
may be at stake to say nothing of the impact of disci
plinary confrontations and the resulting escalation of
personal antagonisms on the important aims of the
correctional process.” 418 U.S. at 562.
Petitioners suggested to the Court of Appeals that the
information given to the inmates was within the parameters
recognized by Wolff “ . . . when personal or institutional
safety [was] so implicated” that the representations made
to the inmate “ . . . may properly exclude certain items of
evidence.” 418 U.S. at 565. The Court of Appeals re
jected the petitioner’s contention and stated “ this cryptic-
ref erence offers us little assistance in our effort to deter
mine whether the prison officials were within their authority
here in declining to reveal substance of the informant state
ments.” (App. 154) (Emphasis supplied).
Petitioners suggest that this Court’s language was far
from “ cryptic” . We think this Court recognized in Wolff
the significant dangers that exist in prison confrontations.
In the circumstances present here, a notice of the proposed
transfer, an opportunity to be heard in opposition to the
transfer, as well as the opportunity to present testimony
and appeal to the Commissioner of Correction was fully
adequate to satisfy due process. These procedures allowed
the inmate to state his version of the events occurring at
the institution and to argue against the transfer presenting
whatever evidence he saw fit. From the perspective of what
the hearing was designed to accomplish, the procedures
followed by the petitioners were also functionally adequate.9
9 Petitioners contend, obviously, that the Court of Appeals mis
applied Wolff v. McDonnell. However, petitioners also suggest that
the Court of Appeals has approached the problem of informant
information in a rather inconsistent manner. Compare the First
Circuit’s resolution of the instant case with its resolution of the
ease of McLaughlin v. Hall, 520 F.2d 382 (1st Cir., 1975), a ease
71
32
It is important to note that commentators agree with the
position asserted by the petitioners as to the need to
protect the safety and security of the informants. Judge
Friendly describes the informant cases as the “ strongest”
ones for dispensing with the necessity for full procedural
protections. 123 U. Penn. L. Rev. at 1286; see also, 88 Harv.
L. Rev. at 1531. In this case the petitioners have been able
“ . . . to point to identifiable individuals whose interest
in personal safety would have been jeopardized by
granting the requested procedures. Second, such per
sons . . . clearly have standing to enlist the protections
of the courts if their safety were imperiled by private
individuals. Finally, the causal nexus between with
holding requested procedures in preventing injury to
the rights of informants [is] clear and direct. There
fore, this aspect of the Wolff decision seems to be a
clear case when the government is justified in limiting
the individual’s right to due process in order to protect
the rights of others.” Id.
decided on the same day as the instant case. In the matter at bar,
the Court of Appeals affirmed the District Court’s finding that
the disciplinary procedures at Walpole were controlling; but in
McLaughlin v. Hall, supra, it held that Wolff required that the
“ development of specific procedural requirements beyond those
enumerated in [Wolff] must be left in the first instance to the
sound discretion of correction authorities.” In a footnote to its
McLaughlin opinion, the court noted that while it rejected impos
ing a specific constitutional rule requiring in camera examination
it did suggest that in lieu of such in camera examination, where
such would be inadvisable, the authorities “ may well devise other
ways of indicating on the record indicia of reliability and the
steps taken to verify information.” See 520 F.2d at 385, n. 4.
While McLaughlin may not be directly inconsistent with Fano, it
certainly would appear that the First Circuit applied a somewhat
divergent analysis to the two cases, even though both opinions were
released on the same day.
72
33
Moreover, as argued above, the functional difference
between the disciplinary hearing when the question is cen
tered on the truth of the charges, is far different from
the specific question presented in a transfer case when
the security of the institution is implicated. Even if
reasonable doubt can be cast upon the informant informa
tion, the necessity for administrative action is not substan
tially altered. The evaluation of the credibility of informant
information when the physical security of an institution is
in question must always be made by correction officials.
It is the situation noted by Judge Campbell where admin
istrative reality must necessarily require the ability to
transfer even on the basis of demonstrably inadequate
information. In terms of analyzing the functional adequacy
of the procedures afforded in such situations, it should be
kept in mind that correction officials have no interest in
acting on arbitrary or capricious information. Unless offi
cials are willing to proceed only on rational grounds, then
their action can only further erode whatever limited confi
dence inmate and custodian now repose in each other. To
this extent, the interests of the state and the interests of
the inmate are essentially congruent.
The state’s concern is in the security of its institutions
and the correction and reabilitation of those committed to
its custody. This interest cannot be served by arbitrary
or capricious behavior. The good faith of Massachusetts
correction officials must be presumed, particularly when the
situation facing them is a very sensitive balancing of the
rights of inmate informants with those who the informants
have identified as dangerous to institutional security. The
state’s interest, broadly put, is the proper functioning of
its prison system with a goal toward the security of that
system and the rehabilitation of those committed to its
care. Cf. Goss v. Lopez, supra, at 591, (dissenting opinion
of Mr. Justice Powell).
73
34
In the case at bar, petitioners have afforded every
significant right required by due process, with the specific
exception of those procedures which would compromise
the safety and security of the informants. The application
of an interest balancing test, which would weigh the
rights of the plaintiffs to the procedures requested, against
the weight of the state’s interest—as well as the interest
of the inmate informants—would clearly show that the
process afforded was both functionally adequate and mean
ingful in the full sense of due process. The full procedures
which are described in Wolff for disciplinary hearings
are largely unsuitable for the types of decisions necessary
to effect a transfer. The procedures followed by the peti
tioners in the hearings below recognized this. We contend
that they were consistent in every respect with the holding
in Wolff and with the rationale behind that holding. Surely,
when a hearing cannot function so as to serve the purpose
for which it is designed, it cannot be constitutionally man
dated. If this court should determine that process is
indeed due, then it should find that the Constitution is
served by a notice to the inmate of the proposed action
and an opportunity for that inmate to be heard in oppo
sition to the action. Further procedures, and the details
of such procedures, should be left to the good faith of
correction officials and not inflexibly set into constitutional
law.
Conclusion
The Fourteenth Amendment operates only to protect
identifiable liberty or property interests. We argue that
the Commonwealth of Massachusetts has created no such
interest in the instant case. We further contend that an
inmate has no inherent liberty interest in remaining in any
one particular institution in the Commonwealth of Massa-
74
35
chusetts. If, indeed, it is the nature of the interest rather
than the weight of the interest which is important, then
an inmate must establish a legitimate claim of entitlement
to the benefit asserted and the Court must specifically find
that the liberty or property interest is within the meaning
of the Fourteenth Amendment. Many federal courts, in
cluding the First Circuit Court of Appeals, have rested
the question of whether or not procedures are due upon the
“ weight” of the interest asserted by the claimant. Such
an analysis tends towards a subjective approach to due
process, an approach which is inconsistent with sound con
stitutional analysis.
If “ grievous loss” is to be a touchstone of due process,
then “ grievous loss” must be limited to clearly objective
deprivations, such as loss of good time or placement in
administrative segregation or tangible evidence of real
harm. Constitutional analysis must exclude reference to
speculative injuries which a transfer might encompass,
such as “ harsher living conditions” or “ adjustment to a
new environment” . The petitioners do not suggest that
these considerations are meaningless, merely that they
assume the worst while, at the same time they are factors
which are not subject to any measurable standard. It is
important to recognize that while objective standards of
fairness are a necessity in prison life, even the most strin
gent safeguards will not satisfy everyone. Neither the
prison system nor the judicial system functions in this
manner. Perceptions will vary according to the subject
and there will be those who remain unconvinced of the
fairness of any system so long as the ultimate control of
their lives and destiny belongs to anyone other than them
selves.
Prison officials deal with volatile and dangerous situ
ations on a daily basis. They must be afforded the widest
possible discretion consistent with the fundamental guaran-
75
36
tees of our Constitution. The decisions that correction
officials must make often require a sensitive and delicate
balancing of interests, rights, and desires. The duty peti
tioners owed to the inmate informants, as well as the other
inmates confined at MCI, Norfolk, required that the pro
cedures afforded the plaintiffs be limited to a notice of
the proposed transfer and an opportunity to be heard in
opposition to the transfer. The procedures followed by the
petitioners were adequate, in the context of this case, to
provide fundamental fairness to the plaintiffs. They were
also required to insure that the physical safety of the
inmate population and the security of the institution would
be guaranteed.
For all of the reasons stated in this brief, the petitioners
request that the judgment of the Court of Appeals for the
First Circuit be reversed.
Respectfully submitted,
F eancis X. B ellotti
Attorney General
J ohn J . I r w in , J b .
Assistant Attorney General
Chief, Criminal Bureau
M ichael C. D onahue
Assistant Attorney General
One Ashburton Place
Boston, Massachusetts 02108
Attorneys for the Petitioners
76
IN THE
Supreme Court of tlje (Brntefc States
OCTOBER TERM, 1975
No. 75-252
LARRY MEACHUM, et al,
v.
Petitioners,
ARTHUR FANO, et al.,
Respondents.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIRST CIRCUIT
BRIEF FOR THE RESPONDENTS
RICHARD SHAPIRO
Prisoners’ Rights Project
294 Washington Street
Room 638
Boston, Massachusetts 02108
ANNE HOFFMAN
Prisoners’ Rights Project
294 Washington Street
Room 638
Boston, Massachusetts 02108
(617) 482-2773
TABLE OF CONTENTS
QUESTIONS PRESENTED ............
STATEMENT OF THE CASE ............
SUMMARY OF ARGUMENT ............
ARGUMENT
I. THE DUE PROCESS CLAUSE APPLIES TO
INTRASTATE TRANSFERS OF PRIS
ONERS WHICH RESULT IN A SIGNIFI
CANT ADVERSE CHANGE IN THE IN
MATES’ OVERALL CONDITIONS OF
CONFINEMENT ON THE BASIS OF AL
LEGATIONS OF MISCONDUCT .....
A. A Prisoner Whose Conditions of Confine
ment Are Adversely Changed as a Result
of an Intrastate Transfer on the Basis of
Misconduct Has Liberty and Property
Interests Within the Contemplation of
the Fourteenth Amendment ......
1. The Respondents Were Deprived of
Liberty Protected by the Fourteenth
Amendment as a Result of Their
Transfer to More Adverse Conditions
of Confinement on the Basis of
Misconduct ..............
a. Liberty Interest in Conditions of
Confinement ...........
b. Liberty Interest in Institutional
Reputation ............
2. The Respondents Possess a Legiti
mate Claim of Entitlement to the
Rights and Benefits Attached to
Confinement at MCI, Norfolk Since
Massachusetts Has Organized Its Pris
ons to Provide Graduated Conditions
of Confinement on the Basis of
Conduct ................
80
B. The Preservation of the Minimal Due
Process Protections Guaranteed by W olff
v. M cD onnell Necessitates the Applica
tion of the Due Process Clause to
Petitioners’ Decisions to Transfer Re
spondents ..................
II. THE TRANSFER HEARINGS FAILED TO
MEET MINIMAL DUE PROCESS RE
QUIREMENTS BECAUSE THE NOTICE OF
THE HEARINGS AND THE HEARINGS
WERE INSUFFICIENT TO PROVIDE THE
PRISONERS WITH A MEANINGFUL OP
PORTUNITY TO RESPOND TO THE AL
LEGATIONS OF MISCONDUCT .....
A. A Careful Balancing of the Counter
vailing Interests Demonstrates That the
Respondents Were Entitled to the Mini
mal Procedural Requirements Extended
to Prisoners in W o lff v. M cD onnell ....
1. Security Needs, Avoidance of “Ten
sions” and Rehabilitation .....
2. The “Emergency” Justification ....
3. The Asserted Need to Make Discre
tionary Decisions ...........
4. The Asserted Unsuitability of the
Issues for Resolution ........
B. The Hearings Provided the Prisoners Did
Not Comply With the Minimal Require
ments of the Due Process Clause ...
1. Respondents Were Entitled to a
Sufficiently Detailed Notice to Allow
Them to Prepare Adequately for
the Hearings .............
2. The Respondents Were Entitled in
the Particular Circumstances of the
Present Case to a Summary of the
Informant Information to Ensure a
Meaningful Opportunity to be Heard
Prior to Their Transfers .......
( i i )
CONCLUSION
APPENDIX .
Page
40
49
50
52
54
55
57
60
60
63
67
la
TABLE OF AUTHORITIES Page
Aikens v. Lash, 371 F.Supp. 482 (N.D. Ind. 1974) .... 32
Almanza v. Oliver, 368 F.Supp. 981 (E.D. Va.
Cases:
1973) .............................. 60
Bell v. Burson, 402 U.S. 535 (1971) ............. 18
Board of Regents v. Roth, 408 U.S. 564 (1972) ... passim
Boddie v. Connecticut, 401 U.S. 371 (1971) ......... 54
Braxton v. Carlson, 483 F.2d 933 (3rd Cir. 1973) ..... 52
Bundy v. Cannon, 328 F.Supp. 165 (D.Md. 1971) ..... 11
Burgett v. Texas, 389 U.S. 109 (1967) ............ 28
Cafeteria and Restaurant Workers Union v. McElroy,
367 U.S. 886 (1961) ..................... 49
Cardaropoli v. Norton, 523 F.2d 990 (2nd Cir. 1975) 24, 28, 32, 38
Carlo v. Gunter, 520 F.2d 1293 (1st Cir. 1975) .... 45, 58
Carroll v. Sielaff, 514 F.2d 415 (7th Cir. 1975) ...... 32
Catalono v. United States, 383 F.Supp. 346 (D.
Conn. 1974) .............. 24, 28, 40, 53, 58, 60
Clonce v. Richardson, 379 F.Supp. 338 (W.D.Mo.
1974) 21,33,45,47,53,58
Clutchette v. Procunier, 497 F.2d 809 (9th Cir.
1974), opinion on rehearing, 510 F.2d 613 cert,
granted sub nom E nom oto v. C lutchette, 33
U.S.L.W. 3641 (1975) 21
Coffin v. Reichard, 143 F.2d 443 (6th Cir. 1944),
cert. den. 325 U.S. 887 (1945) 16
Daigle v. Hall, 387 F.Supp. 652 (D. Mass. 1975) .... 7, 36, 45
Duncan v. Madigan, 278 F.2d 695 (9th Cir. 1960),
cert, denied, 366 U.S. 919 (1961) .......
Fajeriak v. McGinnis, 493 F.2d 468 (9th Cir. 1974)
Ferrell v. Huffman, 350 F.Supp. 164 (E.D. Va.
1972) ........................ 57
Gagnon v. Scarpelli, 411 U.S. 778 (1973) ...... 19,51,57
In re Gault, 387 U.S. 1 (1967) ................. 25
Goldberg v. Kelly, 397 U.S. 254 (1970) .... 38,47,48,60
Gomes v. Travisono, 353 F.Supp. 457 (D. R.I.
1972) .................. ........... 30
Gomes v. Travisono, 490 F.2d 1209 (1st Cir. 1973)
vacated and remanded sub nom Travisono v.
Gom es, 418 U.S. 909 on reconsideration after
remand, 510 F.2d 537 (1st Cir. 1974) ....... Passim
Gonzalez v. United States, 348 U.S. 407 (1955) ...... 66
Goss v. Lopez, 419 U.S. 565 (1975) ........... passim
Graham v. Richardson, 403 U.S. 365 (1971) .... 11, 18, 47
Gray v. Creamer, 465 F.2d (3rd Cir. 1972) .......... ^
Greene v. McElroy, 360 U.S. 474 (1959) ........... 62
Haines v. Kerner, 404 U.S. 519 (1972) ............ 19
Hanvey v. Pinto, 441 F.2d 1155 (3rd Cir. 1971) ...... ^
Hillen v. Director of Social Service and Housing,
455 F.2d 510 (9th Cir. 1972) ............... 1 1
Hoitt v. Vitek, 361 F. Supp. 1238 (D. N.H. 1973)
affd 497 F.2d 598 (1st Cir. 1974)............. 55
Hudson v. Hardy, 424 F.2d 854 (D.C. Cir. 1970) ..... 28
Joint Anti-Fascist Refugee Committee v, McGrath,
341 U.S. 123 (1951) ............ 15,23,45,51,62
Kessler v. Cupp, 372 F.Supp. 76 (D. Ore. 1973) ...... 47
LaBatt v. Twomey, 513 F.2d 641 (7th Cir. 1975) ..... 54
Landman v. Peyton, 370 F.2d 135 (4th Cir.) cert.
den. 385 U.S. 881 (1966) ................ 54, 55
Lynch v. Household Finance Corporation, 405 U.S.
538 (1972) ......................... 18
Meyer v. Nebraska, 262 U.S. 390 (1923) 19
Morgan v. United States, 304 U.S. 1 (1938) ...... 60, 62
82 Morris v. Travisono, 310 F.Supp. 857 (D. R.I.
1970) 41
( i v )
Page
( v )
Page
Morrissey v. Brewer, 408 U.S. 471 (1972) ...... passim
Newkirk v. Butler, 364 F.Supp. 497 (S.D.N.Y.
1973), aff’d 497 F.2d 1214 (2nd Cir. 1974) vac.
with instructions to dismiss as moot 422 U.S.
395 (1975) .......................
Palmigiano v. Baxter, 487 F.2d 1280 (1st Cir. 1973)
vac. and remanded, 418 U.S. 908 (1974) affd
in part and rev’d in part, 510 F.2d 534 (1st Cir.
32
1974) cert, granted 33 U.S.L.W. (1975) . . . 22, 41, 54, 65
Pell v. Procunier, 417 U.S. 817 (1974) ......... 10
Perry v. Sindermann, 408 U.S. 593 (1972) ...... 34, 37
Peyton v. Rowe, 391 U.S. 54 (1968) .......... 29
Poe v. Ullman, 367 U.S. 497 (1961) .......... 19
Preiser v. Rodriguez, 411 U.S. 475 (1973) .......... 27
Procunier v. Martinez, 416 U.S. 396 (1974) ... 19, 21, 31, 48
Richardson v. Perales, 402 U.S. 389 (1971) ..... 51
Robbins v. Kleindienst, 383 F.Supp. 239 (D.D.C.
1974) .......................... passim
Rosenberg v. Preiser, 388 F.Supp. 639 (S.D.N.Y.
1975) .......................... 47, 59
Ruffin v. Commonwealth, 62 Va. (21 Grath) 790
(1871) .......................... 31
Sands v. Wainwright, 491 F.2d 417 (5th Cir. 1974),
certiorari denied sub nom , Guajardo v. Estelle,
416 U.S. 992 (1974) ................. 10
Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971) . . . 62
Stone v. Egeler, 377 F.Supp. 115 (W.D. Mich.
1973), aff’d. 506 F.2d 287 (6th Cir. 1974) ...
United States ex rel. Haymes v. Montanye, 505
25, 32
F.2d 977 (2d Cir. 1974), cert, granted 422 U.S.
1055 (1975) ................... 25,29,32,45
United States ex rel. Miller v. Twomey, 479 F.2d
701 (7th Cir. 1973) ..................
Walker v. Hughes, 386 F.Supp. 32, vacating 375
F.Supp. 708 (E.D. Mich. 1974) ...........
. . 16, 22
83
... 32. 32
( v i )
Page
White v. Gillman, 360 F.Supp. 64 (S.D. Iowa 1973).... 32
Wieman v. Updegraff, 344 U.S. 183 (1952) ......... 30
Wilwording v. Swenson, 404 U.S. 249 (1971) ... 19
In re Winship, 397 U.S. 358 (1970) .............. 51
Wisconsin v. Constantineau, 400 U.S. 433 (1971) ... 26, 29
Wolff v. McDonnell, 418 U.S. 539 (1974) ....... passim
Constitution, Statutes and Rules:
United States Constitution
Fourteenth Amendment ................ passim
42 U.S.C. 1983 ............
Federal Rules of Civil Procedure 52(a)
Federal Rules of Civil Procedure 60(b)
M.G.L.A. Ch. 124, sec. 1(e) ................. 24, 34
M.G.L.A. Ch. 124, sec. 1(0 .................. 34
M.G.L.A. Ch. 127, sec. 32 36
M.G.L.A. Ch. 127, sec. 40 ................... 50
M.G.L.A. Ch. 127, sec. 48 ................. 34,35
M.G.L.A. Ch. 127, sec. 49 35
M.G.L.A. Ch. 127, sec. 49A .................. 35
M.G.L.A. Ch. 127, sec. 97 ........... 6,11
M.G.L.A. Ch. 127, sec. 129D 39
Miscellaneous:
American Correctional Association, Manual of Cor
rectional Standards (1972) 43
Attica: The Official Report of the New York State
Special Commission on Attica (Bantam ed.
1972) 30
Bergeson and Hoerger, Judicial Misconceptions and
the Hidden Agenda on Prisoners’ Rights Litiga
tion, 14 Santa Clara L. Rev. 747 (1974) ......... 27
84 Bourde, The Use of Involuntary Inter-Prison Trans
fer as a Sanction, 3 Am. Journal of Criminal
Law 117 (1974) 27,33,42,43,4?
Carlson, The Federal Prison System: Forty-Five
Years of Change, 39 Federal Probation 37
(June, 1975) .......................... 36
Cohen, The Discovery of Prison Reform, 21 Buffalo
Law Review 855 (1972) ................... 26
Fogel, We Are the Living Proof: The Justice Model
of Corrections (1975) ..................... . 54
Foote, “The Sentencing Function,” reported in
Annual Chief Justice Earl Warren Conference on
Advocacy in the United States (1972) .......... 27
Fox, Why Prisoners Riot, 35 Federal Probation
(1971) .............................. 54
Friendly, Some Kind of Hearing, 123 U. Penn. L.
Rev. 1267 (1975) 60,66
Gifis, Nature of Decisionmaking in a Prison
Community, 1974 Wisconsin Law Review 349 ..... 27
Glaser, The Effectiveness of a Prison and Parole
System (Abridged edition, 1969) ............ 27, 53
E. Goffman, Asylums (Anchor ed. 1961) ......... 20, 27
Hearings Before Subcommittee No. 3 on Corrections
of the Committee on the Judiciary of the House
of Representatives, 92 Congress (First Session)
Part V: Prisons, Prison Reform and Prisoners’
Rights, Massachusetts (December 18, 1971) ..... 35-36
Hearings on Behavior Modification Programs: Fed
eral Bureau of Prisons, Subcommittee on Courts,
Civil Liberties and the Administration of Justice
of the Committee on the Judiciary (93rd
Congress, 2d Session) (February 27, 1974) ....... 45
Individual Rights and the Federal Role in Behavior
Modification, Committee on the Judiciary,
United States Senate (93rd Congress, 2d Session)
(November, 1974) ...................... 45
Kimball and Newman, Judicial Intervention in
Correctional Decisions: Threat and Response 14
Crime and Delinquency 1 (1968) ............. 57
( vi i i )
McCorkle and Korn, “Resocialization Within Walls,” Page
Annals of American Academy of Political and
Social Science 293:88 (May, 1954) ....... 64
Millemann and Millemann, The Prisoner’s Right to
Stay Where He Is: State and Federal Compacts
Run Afoul of Constitutional Due Process, 3
Cap. U. L. Rev. 223 (1974) ........... 33
National Advisory Committee on Criminal Justice
Standards and Goals, Corrections (1973) .... 33, 53
Note, Bargaining in Correctional Institutions: Re
structuring the Relation Between the Inmate
and the Prison Authority, 81 Yale L. J. 726
(1972) ......................... 53, 54
Note, Procedural Due Process in the Involuntary
Institutional Transfer of Prisoners, 60 Va. L.
Rev. 330 (1974) ................... 33
Ohlin, Modification of the Criminal Value Systems
in the Sociology of Punishment and Correction
(1962) ........................ 53
Powelson and Bendix, Psychiatry in Prison, 14
Psychiatry 73 (1951) ................ 45
Powers, The Basic Structure of the Administration
of Justice in Massachusetts (6th ed. 1973) ... 22, 37
President’s Commission on Law Enforcement and
the Administration of Justice: Corrections
(1967) ......................... 27-28, 53
Regulations Governing Disciplinary and Classifi
cation Procedures at the Adult Correctional
Institution, State of Rhode Island ........ 41
Report on New York Parole: A Summary, 11
Criminal Law Bulletin 273 (1975) ........ 27
Sirico, Prisoner Classification and Administrative
Decisionmaking, 50 Texas L. Review 1229
(1972) ......................... 27, 30, 51
Special Project, The Collateral Consequences of a
Criminal Conviction, 23 Vanderbilt Law Review
No. 5 (May, 1970) .................. 30
( ixj
Page
Sykes, The Society of Captives (Princeton Univer
sity Press, 1972 ed.) ....... . ......... 20, 30, 64
Van Alstyne, The Demise of the Right-Privilege
Dichotomy in Constitutional Law, 81 Harv. L.
Rev. 1439 (1968) ...................... 18
Wilmer, The Role of the “Rat” in the Prison, 29
Federal Probation 44 (March, 1965) ............ 64
87
IN THE
Supreme Court of tfje Unitrb States
OCTOBER TERM, 1975
No. 75-252
LARRY MEACHUM, e t a l,
v.
Petitioners,
ARTHUR FANO, e t al.,
Respondents.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIRST CIRCUIT
BRIEF FOR THE RESPONDENTS
QUESTIONS PRESENTED
I
Whether a prisoner who suffers a major adverse
change in the conditions of his confinement as the
result of transfer from a medium to a maximum
security prison on the basis of allegations of misconduct
is entitled to the protection of the Due Process Clause
of the Fourteenth Amendment.
2
II
Whether the failure of prison officials to provide the
prisoner with adequate notice of the charges of
misconduct and with a summary of the evidence against
him deprived the inmate of a meaningful opportunity
to be heard prior to his transfer to more adverse
conditions of confinement.
STATEMENT OF THE CASE
During a period of unrest at the Massachusetts
Correctional Institution (hereinafter MCI) Norfolk, the
respondents were summarily removed from the general
population at that institution and were placed in a
segregation unit. (App. 55, 56).1 The respondents did
not receive any written notice or hearing prior to being
placed in segregation nor were they informed, either
orally or in writing, of the reasons for their placement
in this unit. (App. 56). On October 25, 1974, each
inmate was given a copy of a disciplinary report which
charged him in general terms with major violations of
certain institutional rules and regulations. (App. 34-38,
'The factual record in this case is principally comprised of
stipulations entered into by the parties in the United States
District Court. Only one witness testified and his testimony has
not been preserved for appeal. See Fano v. Meachurn, (App.
131-138) 387 F.Supp. 664, 666 (D. Mass. 1975).
90
3
63).2 The alleged offenses were also referred to the
local district attorney for investigation and possible
prosecution.3 No disciplinary hearing was held on these
charges, despite the requests of respondents’ counsel
(App. 56-57).4 On November 4, 1974, each inmate was
2 If the respondents had been provided with disciplinary
hearings, the inmates would have been afforded the procedures
for major violations required by Commissioner’s Bulletin 72-1
(App. 114-115). These regulations, in effect since June 5, 1972,
mandate specific procedural rights for inmates in order to
provide “a speedy and fair adjudication of alleged wrong-doing.”
(App. 109). The procedures at such a hearing include written
notice of the charges and a copy of the disciplinary report prior
to the hearing; the opportunity to be represented by counsel or a
law student; the opportunity to have the complaining officer
present and to question him; the right to view any report
considered by the board; the opportunity to present testimony
or documentary evidence on his behalf; the right to confronta
tion; and the right to a written statement of reasons and findings
based on reliable evidence.
According to these disciplinary regulations, once a finding of
guilt has been made, the inmate’s past record may be considered
in deciding the appropriate sanction (App. 115), and transfer of
the inmate is a permissible punishment (App. 117).
3 In late November, petitioner Meachum was informed by the
office of the District Attorney that his investigation “has not at
this time revealed sufficient evidence against these subjects
[including the respondents] to proceed against them criminally.”
(App. 56-57).
4 The petitioners have taken the position that they were
barred by the disciplinary regulations (App. 118) from holding
disciplinary hearings to impose institutional sanctions when a
case has been referred to the District Attorney for prosecution.
Brief for Petitioners at 5, note 2; [hereinafter Pet. Br.] However,
the disciplinary regulations indicate that a hearing may be held
although a sanction shall not be imposed. Moreover, the Court of
Appeals concluded that respondents’ position, even if well-
founded, could not “immunize what would otherwise be a due 91
process violation.” Fano v. M eachum, (App. 145).
4
served with a Notice of Classification Hearing (App.
58), after a request for a temporary restraining order
had been sought in district court. These notices stated
that respondents would receive classification hearings
“ in view of” certain information obtained from
informant sources that linked respondents to the
planning and execution o f fires, possession of contra
band and trafficking in drugs. (App. 39, 40, 64-67).
This information was described in language that tracked
the disciplinary reports. None of these notices apprised
the inmate of the time or place of the alleged acts nor
did the notices provide any but the most general
information relating to the charge.
Classification hearings were subsequently held for
each respondent within the next ten days. (App. 58).
The Board opened each hearing by reading a prepared
statement and then ordered the respondents and their
representatives from the room. (App. 58). The Board
then listened to the unsworn hearsay testimony of
Superintendent Meachum of MCI-Norfolk. His testi
mony was based on information supplied to him by
confidential informants (App. 58-59). After the evi
dence of the alleged offenses were presented in these
closed sessions, the prisoner and his counsel were
permitted to reenter the room. Each respondent was
then informed that the informant information supplied
by Meachum supported the allegations in the notices
(App. 59).5 No other evidence in support of the
allegations of misconduct was presented at the hearing.
5In at least one case, the Classification Board stated that it
had concluded that the information was reliable before affording
the inmate any opportunity to be heard. (App. 59).
92
5
The inmates were not informed of any of the
information, even in summary form, supporting the
general allegations. None of the inmates were specifically
informed of what they had allegedly planned to do
nor were any of the respondents apprised of when or
with whom they had engaged in the alleged activities.
The inmates charged with possession of contraband
were not even told what contraband they had allegedly
possessed. Each inmate denied his participation in any
of the general activity recited in the disciplinary charges
or in the notices of the classification hearings. (App.
68-108).6
The Classification Board recommended transfer of all
the respondents, with the exception of Royce, to
maximum security institutions at Walpole or Bridge-
water (App. 59-60). Respondents were not provided
with a written statement of the Board’s reasons for its
decisions or of the evidence on which the Board relied
(App. 60). They were only orally informed that the
recommendations of the Board were based on the
disclosed informant information (App. 60).
6Since the inmate could not respond to the charges, he tried
to avert transfer by producing general character references or
recommendations (App. 72, 74, 102); by guessing at the charges
and asserting his lack of involvement (App. 69, 100); or by
arguing that he had an excellent institutional record (App. 42-43,
45, 47, 49). However, the prisoners had no way of knowing
whether any of this information would be relevant or useful to
the Board in reaching its decision, nor could they know whether
any of the information presented would even be considered by
the Board. In fact, most, if not all, of this information was
discounted by the Board. In fact, most, if not all, of this
information was discounted by the Board which predicated its
decisions solely on the testimony presented by Meachum. (App.
70-71, 75, 81-82, 100).
93
6
The Board then prepared a written report of its
recommendations for the Commissioner to review. The
respondents were not informed of the contents of this
report. (App. 60). The recommendations of the Board
to transfer five of the respondents to Walpole or
Bridgewater were followed7 (App. 61). Although
respondent Royce did not appeal the Board’s decision,
the recommendation that he remain at Norfolk was
reversed by the Commissioner. (App. 53, 61). Respon
dents were subsequently transferred8 to Walpole and
Bridgewater. Respondents were never provided with a
written statement of the reasons for the Commissioner’s
decisions nor of the evidence the Commissioner relied
on in making those decisions. (App. 61).
The respondents’ transfers, and the bases thereof,
were noted in each inmate’s institutional file which is
reviewed by the Furlough Board, the Parole Board, and
other administrative agencies of the Department of
Correction (App. 62) and may affect respondents’
opportunities to obtain furloughs, to participate in
work release and other correctional programs and,
ultimately, to gain release on parole.
Respondents then sought relief, pursuant to 42
U.S.C. sec. 1983, in the United States District Court.
7The Commissioner decided to transfer respondent DeBrosky
to Walpole rather than Bridgewater.
8The Commissioner has been vested with broad statutory
authority to transfer inmates. M.G.L.A. Ch. 127, sec. 97 (1974
ed). This statute does not explicate the standards governing a
transfer. Pursuant to this statute, the Commissioner has delegated
authority to lower prison officials to transfer inmates as a
disciplinary sanction for a “major violation” of institutional rules
and regulations (App. 117).
94
7
The complaint, which was subsequently amended,
alleged that the prison officials had violated the
Constitution by placing respondents in segregation cells
without prior notice and by transferring them to more
adverse conditions of confinement in other institutions
without adequate notice and hearings (App. 16).
Respondents sought declaratory and injunctive relief as
well as compensatory and punitive damages.
After reviewing the stipulated record,9 the District
Court found that the conditions of confinement at
MCI-Walpole and MCI-Bridgewater, were substantially
more adverse than those at MCI-Norfolk and, further,
that these institutions had been deliberately differen
tiated to provide graduated conditions of confinement
within the Department of Correction. Fano v. M eachum
(App. 135).10 Since the District Court viewed the
transfers as disciplinary in nature, the Court concluded
that the defendants were required under W olff v.
M cDonnell, 418 U.S. 539 (1974) to give inmates who
were charged against them so that they could prepare a
9The Solicitor General alludes to an affidavit of Super
intendent Meachum attesting to the Superintendent’s view of the
reliability and credibility of the informants as well as to his
opinion of the danger to them from a more detailed summary of
the evidence (App. 140-141), [B rief F or The United States A s
Amicus Curiae at 9, note 10 (hereinafter S.G.Br.)] This affidavit
was not part of the stipulated record considered by the District
Court. The affidavit was submitted to the District Court only for
purposes of the petitioners’ Motion for Stay Pending Appeal; it
was not offered to the District Court for purposes of the record
at the District Court hearing nor did Superintendent Meachum
ever testify on the matters contained in the affidavit.
10The District Court had previously noted its awareness of the
conditions in these two institutions. Daigle v. Hall, 387 F. Supp.
652, 659 (D. Mass. 1975).
95
8
meaningful and intelligent defense (App. 136)“ and
notice of the hearing that, at the very least, provided
the inmates with the time and place of the alleged
offense. (App. 137). Since the petitioners had failed to
follow constitutionally adequate procedures, the District
Court ordered the prisoners returned to the general
population at MCI-Norfolk.12 The petitioners then
nThe District Court noted that Institutional Order 4310.1
(App. 136) which was in effect at MCI Walpole, provided
guidance as to the minimum requirements in the peculiar
circumstances of the present case. This order provides, in
pertinent part, the following:
“The board may issue any orders it deems necessary to
conducting a thorough and adequate investigation, includ
ing the calling of witnesses and production of evidence. No
testimony may be taken outside the accused resident’s
presence unless he voluntarily absents himself, or the board
chairman determines that disclosure would involve:
(1) Subjecting the informant to a significant risk or
harm or
(2) A substantial risk to institutional security
(3) On making a finding that a threat exists and that
there is need for protection of sources, the board
chairman will note such a finding in the hearing record.
(4) He will also summarize the information in question
for the accused resident and state generally the board’s
reasons for such protective action.’’
Petitioners assert that the action of the District Judge in
taking judicial notice of this regulation was improper under the
Federal Rules of Evidence. [Pet.Br. at 3, note 1] The short
answer to this contention is that the Federal Rules of Evidence
did not go into effect until July 1, 1975, after the District
Court’s decision was issued. Moreover, if petitioners felt aggrieved
by this action, they should have sought relief in the District
Court after the issuance of the order, pursuant to Federal Rules
of Civil Procedure 60(b), rather than raising this evidentiary
point in this Court for the first time.
l2The District Court also directed the Commissioner of
96 Correction and the Superintendent of Norfolk to submit
regulations providing inmates at Norfolk with rights to transfer
hearings substantially in accordance with a prior decision of the
Court and with the regulations mentioned in note 11 supra. Fano
v. Meachum, (App. 138).
9
appealed to the United States Court of Appeals for the
First Circuit.13
The Court of Appeals, in affirming the judgment of
the District Court, viewed the case in a slightly
different light than the lower court. The Court focused
on two issues: (1) whether the Due Process Clause
applies to the decision to transfer an inmate from
medium to maximum security institutions within
Massachusetts, Fano v. M eachum , (App. 146-147), and
(2) if due process guarantees are applicable, what
specific procedures were appropriate in the circum
stances of the present case. (App. 150). With respect to
the first issue, the Court did not attach any
significance, as did the District Court, to the fact that
the proceedings were for “ classification” rather than
“discipline.” (App. 145, note 2). Instead, after a careful
review of the substantial deprivations flowing from the
prisoners’ transfers, the Court concluded that “ the
inmate interests affected fall within the liberty
protected by the Fourteenth Amendment.” (App. 150).
Once having decided that the Due Process Clause was
applicable, the Court of Appeals considered what
procedures were appropriate under the circumstances.
The Court determined that, in the instant case, this
inquiry was restricted by two factors: (1) the inmates’
objections to the hearing were limited to the lack of
any summary of the evidence provided by confidential
informants (App. 150);14 and (2) the Walpole regula-
13After the District Court denied petitioners’ Motion for a
Stay Pending Appeal, a stay was granted by the United States
Court of Appeals on January 23, 1975 (App. 142-143). The
appeal to that Court was also expedited. The order of the
District Court directing that the respondents be transferred back
to MCI-Norfolk has been stayed since that date.
14The respondents had vigorously objected in their complaint 97
and before the District Court to the inadequate notice as well.
(App. 29). See also Fano v. Meachum (App. 134).
10
tion, cited by the District Court, reflected “ that the
release of a summary of informant provided informa
tion is not inconsistent with institutional requirements,”
and that, absent some suggestion that the rule was
unworkable or unduly burdensome, prison officials could
not deny similar procedures to inmates at a medium
security institution. (App. 152).15
This Court subsequently granted the petition for a
writ of certiorari on December 8, 1975.16
SUMMARY OF ARGUMENT
This case involves the extent to which an inmate is
entitled to the protection of the Due Process Clause
when he is transferred intrastate from a medium
security institution to a maximum security institution
on the basis of allegations of misconduct. The
15Finally, the Court affirmed the holding of the District Court
that the notice of the hearing must “at the very least state the
time and place of the alleged offense with reasonable accuracy.”
Id. at 380 (App. 152). The Court concluded that this
requirement was not only mandated by W olff but also that the
notice would not provide the inmate with any information
beyond the summary already required by the Court of Appeals
decision (App. 152).
16The Solicitor General suggests that “[tjhere is a substantial
question whether this case is properly before the Court” since
“ [c] onstitutional challenges seeking injunctions against the state
regulations of statewide applicability must be heard by district
courts of three judges.” S.G.Br. at 7, note 9. It is difficult to
understand the basis of the am icus’ contention since the prayer
for relief in the Amended Verified Complaint (App. 31-32) did
not request injunctive relief against the enforcement of any
regulation, let alone a regulation of state-wide applicability.
Furthermore, the District Court did not, sua sponte, enjoin any
regulations (App. 137-138). Cf. Pell v. Procunier, 417 U.S. 817,
at note 1 (1974); Sands v. Wainwright, 491 F.2d 417, (5th Cir.,
1974), certiorari denied sub nom Guajardo v. Estelle, 416 U.S.
992 (1974).
11
respondents do not challenge the authority of prison
officials to transfer prisoners.17 Nor do the respondents
assert that they have any constitutional right to remain
at a particular prison throughout the term of their
imprisonment.18 However, respondents do contend that
substantial liberty and property interests are implicated
in intrastate transfers which involve an adverse change
of the overall conditions of confinement and that the
Due Process Clause is applicable to such transfers.
17This authority has been considered a matter appropriate for
Congressional or state legislative authorization. See e.g., Hillen v.
Director o f Social Service and Housing, 455 F.2d 510 (9th Cir.
1972); Hanvey v. Pinto, 441 F.2d 1155 (3rd Cir. 1971); Duncan
v. Madigan, 278 F.2d 695 (9th Cir. 1960) cert, denied, 366 U.S.
919 (1961). See also, Gom es v. Travisono, 490 F.2d 1209, 1212
at note 2 (1st Cir. 1973) vacated and remanded sub nom ,
Travisono v. Gom es, 418 U.S. 909 (1974), on reconsideration
after remand, 510 F.2d 537 (1st Cir. 1974).
For the most part, the above cases were considered on pro se
petitions without any extensive presentation, development or
analysis of the issues involved. See also, Fajeriak v. McGinnis,
493 F.2d 468 (9th Cir. 1974).
In Massachusetts, transfer authority has been vested by statute
in the Commissioner of Correction. See M.G.L.A. Ch. 127, sec.
97 (1974 ed).
i8For cases rejecting this argument, see e.g., Gray v. Creamer,
465 F.2d 179, 187 (3rd Cir. 1972); Bundy v. Camion, 328
F.Supp. 165, 173 (D. Md. 1971). See also, Gom es v. Travisono,
supra, 490 F.2d at 1212, note 3. However, as the Court of
Appeals noted in Gom es, id, the force of these opinions has been
vitiated by this Court’s rejection of the principle “that
constitutional rights turn upon whether a governmental benefit is
characterized as a ‘right’ or a ‘privilege’.” Graham v, Richardson,
403 U.S. 365, 374 (1971); M orrissey v. Brewer, 408 U.S. 471,
482 (1972). Nonetheless, the right-privilege distinction continues
to cloud analysis of prisoners’ cases. See the dissenting opinion
of Judge Campbell in Fano v. Meachum (App. 153). 99
12
I
Due process is a flexible concept which affords
protection to all individuals from arbitrary deprivations
of their liberty or property. Respondents, although
prisoners, still have “ limited liberty” protected by the
Due Process Clause. The petitioners stipulated to a
factual record which supported the finding of the
District Court that the conditions at the maximum
security prisons to which respondents were transferred
were substantially more adverse than those at the
medium security prison at Norfolk (App. 135).
Furthermore, a notation was placed in each of the
respondents’ files which indicated that he had been
transferred as the result of serious misconduct,
including the planning and execution of fires, the
possession of contraband such as weapons and the
trafficking in drugs. This notation, which identifies
respondents as “ troublemakers” will have serious future
consequences, for this information will be considered
by correctional officials and the parole board in
reaching critical decisions affecting the length and
nature of respondents’ incarceration. On the basis of a
record of serious deprivations affecting all aspects of
the respondents’ confinement, the Court of Appeals
properly recognized that the “ inmate interests . . . fall
within the liberty protected by the Fourteenth
Amendment” (App. 150).
II
Respondents also have a legitimate claim of entitle
ment to the rights and benefits of incarceration at the
medium security prison at Norfolk. Prison officials in
13
Massachusetts have created a corrections system con
taining institutions with divergent conditions of confine
ment in order to effectuate the explicit statutory goals
of corrections in the state: rehabilitation and the
reintegration of the offender into the community. The
right to remain at a particular institution and to partake
of the particular rehabilitative programs at that prison is
dependent upon the inmate’s conduct. Absent misbe
havior, he will not be transferred to more restrictive
conditions. The record in this case demonstrates that
respondents’ opportunity to participate in the programs
at Norfolk was terminated on the basis of allegations of
involvement in serious breaches of prison rules. Since
Massachusetts has established a corrections system in
which respondents could participate in various rehabili
tative programs and since the transfer of respondents to
a prison with fewer benefits and opportunities was the
result of allegations of misconduct, the petitioners were
required to recognize the respondents’ legitimate claim
of entitlement as a property interest protected by the
Due Process Clause.
Ill
W olff v. M cD on n ell 418 U.S. 539 (1974) strikes a
careful balance between the individual rights of
prisoners and legitimate institutional goals in requiring
prison officials to provide minimal guarantees of due
process to inmates charged with serious misconduct.
Petitioners initiated the disciplinary process in the
present case and charged the respondents with major
acts of misconduct. Hearings on these charges would
have required the minimal W olff procedural protections:
notice, a hearing and a written statement. The 101
14
disciplinary process was abruptly discontinued, however,
and respondents received classification notices which
tracked the disciplinary charges. Respondents were,
therefore, entitled to minimal due process at these
transfer hearings, for these proceedings were no
different from the ordinary disciplinary hearing where
allegations of major misconduct are at issue and transfer
may be imposed as a sanction (App. 117). To permit
the petitioners to circumvent the procedural require
ments of W olff by labelling a proceeding a “ transfer”
hearing rather than a “ disciplinary” hearing, when the
two processes involve identical inquiries into allegations
of serious misconduct, would invite wholesale repudia
tion of the W olff strictures.
IV
Since the prisoners were deprived of liberty and
property protected by the Fourteenth Amendment,
they were entitled to hearings which met the minimal
requirements of due process. In determining what
specific processes are due, the Court must accommodate
the legitimate correctional goals of prison officials and
the substantial deprivations suffered by the respondents.
The various justifications asserted by the prison officials
can be given short shrift because they either have been
accommodated in W olff or lack any evidentiary support
in the record of the proceedings below. Moreover,
contrary to petitioners’ and am icus’ assertions, a hearing
in the present circumstances would substantially further
rehabilitative goals while not impeding any legitimate
needs of correctional authorities. Therefore, petitioners
have failed to offer any significant justifications for
102 failing to provide respondents with the minimal
requisites of Wolff.
15
V
The notice provided the prisoners did not comply
with the minimal demands of the Due Process Clause.
W olff v. M cDonnell, 418 U.S. 534, 564 (1974). The
notice was insufficient to inform the prisoners of the
charges against them and to allow them to marshal the
facts in their defense. Id. Absent proper notice, the
hearings were meaningless, for the evidence of allega
tions of respondents’ misconduct was presented outside
the prisoners’ presence, and the respondents were
unable to present any defense to the charges. Thus, the
procedures at respondents’ hearings were ritualistic
trappings for a “ secret one-sided determination of facts
decisive of rights.” Joint Anti-Fascist R efu gee Com m it
tee v. M cGrath, 341 U.S. 123, 170 (1951). (Frank
furter, J., concurring.)
VI
Finally, the failure of the petitioners to provide
respondents with a summary of the information was
fundamentally unfair in the circumstances of this case.
Since due process requires that prisoners be provided
with a statement of the evidence relied on, the prison
officials bear a heavy burden in limiting this funda
mental right. Petitioners have not presented any reasons
in the record for more restrictive procedures in the
present circumstances, and, further, their own regula
tions demonstrate that providing a summary of
informant information at the hearing is not inconsistent
with legitimate institutional concerns. Petitioners cannot
arbitrarily avoid minimal due process requirements
without demonstrating any basis in the record for their 1Q3
actions.
16
ARGUMENT
E
THE DUE PROCESS CLAUSE APPLIES TO
INTRASTATE TRANSFERS OF PRISON
ERS WHICH RESULT IN A SIGNIFICANT
ADVERSE CHANGE IN THE INMATES’
OVERALL CONDITIONS OF CONFINE
MENT ON THE BASIS OF ALLEGATIONS
OF MISCONDUCT.
Petitioners and the Solicitor General assert that the
issue of where a prisoner is located is a matter of
discretion for prison officials raising no constitutional
issues. This contention has a familiar ring, for prison
authorities have often argued that their actions should
be immune from judicial scrutiny and that prisoners are
not entitled to constitutional protections. However, this
Court has rejected these assertions as “ untenable” and
has recognized that “ [t] ere is no iron curtain drawn
between the Constitution and the prisons of this
country.” W olff v. M cD on n ell 418 U.S. 539, 555-556
(1974).19 Among the constitutional rights afforded
inmates is the protection of the Due Process Clause.
W olff v. M cDonnell, 418 U.S. 539, 556 (1974).
i9The Court in W olff v. M cDonnell, supra at 555, also noted
that a prisoner “is not wholly stripped of constitutional
protections when he is imprisoned for crime.” See also, United
States e x rel. Miller v. Twom ey, 479 F.2d 701, 712 (7th Cir.
1973); Coffin v. Reichard, 143 F.2d 443, 445 (6th Cir. 1944)
cert. den. 325 U.S. 887 (1945).
104
17
A. A Prisoner Whose Conditions O f Confinement
Are Adversely Changed As The Result of An
Intrastate Transfer On The Basis O f Mis
conduct Has Liberty And Property Interests
Within The Contemplation O f The Fourteenth
Amendment.
The Fourteenth Amendment forbids the state from
depriving any person of life, liberty or property without
due process of law. The threshold inquiry for
determining whether a hearing is constitutionally
mandated in the instant case is to consider whether
“the interest [asserted by the prisoner] is one within
the contemplation of the ‘liberty’ or ‘property’ language
of the Fourteenth Amendment.” M orrissey v. Brewer,
408 U.S. 471, 481 (1972); Board o f R egen ts v. R oth ,
408 U.S. 564, 569 (1972). This inquiry does not stop
at the prison gate. W olff v. M cD onnell, 418 U.S. 539,
555-556 (1974). Petitioners seek to limit this inquiry
solely to a determination of whether Massachusetts has
created a state interest or claim of entitlement “ to
remain in a particular institution.”20 However, this
analysis drains the Due Process Clause of much of its
content and obscures the important distinctions be
tween the “ liberty” and “ property” protected by the
20Brief of the Petitioners at 17-18 [hereinafter Pet.Br.]; Brief
of the United States As Amicus Curiae at 21-25 [hereinafter
S.G.Br.].
105
18
Fourteenth Amendment.21 Consequently, it is necessary
to consider these separate interests22 in order to fully
21 Petitioners’ and am icus’ argument reflects a misunder
standing of the distinctions between liberty and property and of
prior decisions of this Court. Liberty interests are not creatures
of state law, like property interests. Board o f Regents v. R o th ,
408 U.S. 507, 564, 578 (1972). However, a person’s liberty is
still protected by the Due Process Clause "even when the liberty
itself is a statutory creation of the State.” W olff v. M cDonnell,
418 U.S. 539, 558 (1974). (emphasis supplied). The above
language in W olff has been interpreted to mean that the
prisoner’s liberty interest in the instant case must flow from a
"statutory right ... to be at one institution rather than another.”
Fano v. Meachum, (App. 153) (Campbell, J„ dissenting). This
analytical error results from a misreading of W olff The guidance
that a Court obtains from state law for the consideration of
property rights is, for the most part, irrelevant to interests of
liberty which are not conditioned upon state-created rights. W olff
only recognized that, regardless of the source of liberty, the
individual’s liberty interest is still protected by the Due Process
Clause. The interests identified in Wolff, therefore, could have
been accurately described as either liberty or property interests.
Thus, the analysis of liberty and property interests paralleled
each other in that particular case. That does not mean that a
similar analysis is appropriate in every other prison case where
liberty and property interests are implicated. Instead, there is a
separate and identifiable constellation of rights and opportunities
constituting the interest of liberty which do not hang on the
slender reed of state-created rights. By not recognizing this
distinction, petitioners’ argument has the anachronistic tone of
the “right-privilege” distinction, and resurrects conclusory terms,
rather than analysis, to define the parameters of constitutional
rights. See e.g., Morrissey v. Brewer, 408 U.S. 471, 482 (1972),
Graham v. Richardson, 403 U.S. 365, 374 (1971); Bell v. Burson,
402 U.S. 535, 539 (1971). See also, Van Alstyne, The Dem ise o f
the Right-Privilege D ichotom y in Constitutional Law, 81 Harv. L.
Rev. 1439 (1968).
22 Regard less of the precise line of demarcation between
liberty and property, Lynch v. H ousehold Finance Corporation,
106 405 U.S. 538, 552 (1972), it is clear that these two interests
have a different content. Cf. Goss v. Lopez, 419 U.S. 565, 574
(1975) (discussion of property interest) with Goss v. Lopez, id.
at 574-575 (discussion of liberty interest). See also, Board o f
Regents v. Roth, 408 U.S. 564, 571-578 (1972).
19
understand how they are both implicated in a decision
which results in the transfer of an individual from a
medium to a maximum security institution.
1. The Respondents Were Deprived of Liberty Protected
By The Fourteenth Amendment As a Result of Their
Transfer to More Adverse Conditions of Confinement
On The Basis of Misconduct.
The Due Process Clause forbids arbitrary deprivations
of liberty. Goss v. L opez, 419 U.S. 565, 574 (1975);
W olff v. M cD onnell, 418 U.S. 539, 558 (1974). The
analysis of liberty interests by this Court has reflected a
realistic appreciation that constitutional principles are
not static or inflexible. Consequently, the Court has
recognized that a continuum of liberty interests is
protected by the Due Process Clause. Board o f R egents
v. R oth, 408 U.S. 564, 571-572 (1972).23 The liberty
of free men24 may be distinguishable from the
“ conditional liberty” of parolees25 or probationers.26
Prisoners also possess limited liberty interests. W olff v.
M cDonnell, 418 U.S. 539 (1974); Procunier v. Martinez,
416 U.S. 396, 418 (1974); Haines v. Kerner, 404 U.S.
519 (1972); Wilwording v. Swenson, 404 U.S. 249
(1971). Finally, at the outer reaches of this continuum,
there may be interests which are so insubstantial or
23As Justice Harlan once noted:
“(Liberty) is a rational continuum which, broadly
speaking, includes a freedom from all substantial arbitrary
impositions and purposeless restraints.” P oe v. Ullman, 367
U.S. 497, 543 (1961) (Harlan, J., dissenting).
Ŝee e.g., M eyer v. Nebraska, 262 U.S. 390, 399 (1923). This
liberty is, of course, not absolute but may be subject to
reasonable restrictions.
25M orrissey v. Brewer, 408 U.S. 471 (1972).
u Gagnon v. Scarpelli, 411 U.S. 778 (1973).
107
20
insignificant that their deprivation will be tolerated, no
matter how arbitrarily state officials choose to act. G oss
v. L o p e z , 419 U.S. 565, 576 (1975); B o a rd o f R e g e n ts
v. R o th , 408 U.S. 564, 573-575 (1972); W o l f f v.
M c D o n n e ll , supra , 418 U.S. at 571-572 at note 19
(1974).27
a. L iberty Interest in Conditions o f Confinem ent
The deprivation of liberty after adjudication of guilt
and incarceration is partial, not total. W o l f f v.
M c D o n n e ll , 418 U.S. 539, 555-556 (1974). Because
liberty is so limited in “ total institutions” ,28 the Court
has been particularly sensitive to the additional
restrictions upon a prisoner which are imposed by the
state. Therefore, the Due Process Clause requires prison
27In contrast to this flexible approach to liberty, the
petitioners and the Solicitor General would have this Court
resurrect a static notion of liberty interests which depends solely
on whether one is in or out of prison. However, this position
ignores the decisions in M orrissey and Wolff, which indicate that
“liberty” and “custody” cannot be equated.
Petitioners’ analysis of due process also depends ultimately on
a consideration of the status of the individual rather than upon
an evaluation of the nature of his interest. However, status is
irrelevant to whether there is a liberty interest, although it may
be a factor in determining what process is due. Cf. W olff v.
M cDonnell, supra, 418 U.S. at 555-556. Moreover, status is
usually associated with determining whether there is a property
interest, for a person’s status may condition the reasonableness
of his expectations in property. Board o f Regents v. R oth , 408
U.S. 564, 577 (1972).
28See generally, E. Goffman, Asylum s 13-15 (Anchor ed.
1961);
108 See also, G. Sykes, The S ociety o f Captives (Princeton
University Press, 1972 ed.).
21
officials to afford minimal procedural protections to a
prisoner prior to deprivation of good time or a major
adverse change in the conditions of confinement as a
result of misconduct. W olff v. M cD onnell, 418 U.S.
539, 571-572 at note 19 (1974); id at 581, note 1
(Marshall, J., dissenting in part); id at 594-595
(Douglas, J., dissenting in part).29 Also, the Court has
recognized that a prisoner’s liberty includes the right to
uncensored correspondence, which, absent a hearing,
cannot be impeded. Procnnier v. Martinez, 416 U.S.
396, 418 (1974). Similarly, an increase in restraints
upon movement, a more restrictive custody level,
additional controls or security, fewer educational or
rehabilitative programs or interference with other
activities can sharply affect the inmate’s liberty within
the “ closed, tightly controlled” prison environment.
W olff v. M cD onnell, 418 U.S. 539, 561 (1974).30
29All nine Justices agreed in W olff that a prisoner’s liberty
interest was implicated by a major adverse change in the
conditions of confinement on the basis of misconduct. Lower
federal courts have reached the same conclusion about the W olff
decision. See e.g., Clonce v. Richardson, 379 F. Supp. 338, 349
at note 2 (W.D. Mo. 1974).
L̂ower federal courts have similarly recognized that the
extent to which a decision of prison officials implicates the
liberty interest of a prisoner turns on the particular environment
of a “total institution.”
As the Court of Appeals for the Ninth Circuit noted:
Any deprivation of the small store of “privileges”
accorded a confined or relatively confined group causes
a far greater sense of loss than a similar deprivation in a
free setting, as anyone can attest who has been a
student in a strict boarding school, a sailor aboard ship,
a combat soldier, or a prisoner in time of war or
peace . . . Grievousness of the loss depends upon the
nature and circumstances and makeup of the prisoner
who suffers the loss. Clutchette v. Procunier, 497 F. 2d
809 (9th Cir. 1974) (Opinion on rehearing, 510 F. 2d
613, 615 (9th Cir. 1974).
(continued)
22
The record in this case demonstrates that the
transfers of respondents had a substantial adverse effect
on their limited liberty. The District Court took judicial
notice of the fact that the conditions of confinement at
Norfolk had been deliberately differentiated from those
at Walpole and Bridgewater (App. 135). MCI, Walpole
and MCI, Bridgewater are both maximum security
institutions where the inmate is subject to stricter
security measures and controls upon his daily life than
at the medium security prison, MCI, Norfolk (App.
61-62).31 There is also fewer rehabilitative opportunities
available at these institutions than at MCI, Norfolk. For
example, MCI, Norfolk offers inmates training in a wide
variety of vocations, provides educational opportunities
(footnote continued from preceding page)
Similarly, the Court of Appeals for the First Circuit has
stated:
In a prison setting where liberty is by necessity
shrunken to a small set of minor amenities, such as
work or schooling privileges, visitations, and some
modicum of privacy, it is likely that any marked change
of status which forecloses such liberties will be per
ceived and felt as a grievous loss. Palmigiano v. Baxter,
487 F. 2d 1280, 1284 (1st Cir. 1973).
See also, United States ex rel. Miller v. Twom ey, 479 F.2d 701,
717 (7th Cir. 1973).
Petitioners and the Solicitor General also argue that this
inquiry should be limited to a consideration of whether the
prisoner has a legitimate claim of entitlement to incarceration in
a particular prison. This argument suffers from the same defects
noted above, supra, note 21. The prisoner does not have to
invoke an independent source for his liberty interest.
31E. Powers, The Basic Structure o f the Administration o f
Justice in Massachusetts 210-214 (6th ed. 1973). This book has
been filed in the Office of the Clerk.
110
23
through classroom instruction and, of most importance,
inmates at Norfolk may participate in work-release
programs which facilitate their reintegration into the
community (App. 62).32 These opportunities are
curtailed at Walpole and Bridgewater (App. 62). Finally,
furloughs, which are essential in enabling the prisoner
to maintain community ties, are more difficult to
obtain at Walpole than at Norfolk (App. 62).
Furthermore, the deprivations imposed upon respond
ents as a consequence of their transfers constituted a
“grievous loss.” See Joint Anti-Fascist R efu gee Com
m ittee v. McGrath, 341 U.S. 123, 168 (1951)
(Frankfurter, J., concurring); M orrissey v. Brewer, 408
U.S. 471, 481 (1972); W olff v. M cD onnell, 418 U.S.
539, 557 (1974). The Court of Appeals recognized that
the deprivations to respondents were “ serious” and
“ certain” (App. 148) and accorded the proper defer
ence of a reviewing court to the factual findings of the
district judge.33 The stipulated record was replete with
specific instances of the abrupt, adverse changes in the
conditions of respondents’ confinement resulting from
these transfers, including the “disadvantages from the
breaking off of established programs, both educational
and rehabilitative, and [the] orientation to a new
setting, programs, rules and companions.” G om es v.
Travisono, 409 F.2d at 1213 (App. 149). In the present
case, all of the respondents suffered these serious
deprivations. Hathaway was divested of his laundry
32Id. at 213.
33See Federal Rules of Civil Procedure 52(a) (1975 ed.). The
District Court had entered a specific finding of fact “that the
conditions of confinement at MCI, Walpole and MCI, Bridgewater
are substantially more adverse than they are at MCI, Norfolk
(App. 135). Ill
24
business, a source of livelihood within the prison, and
lost his opportunity to participate in group therapy
(App. 98-100); Dussault lost his job as a plumber and
his avocation (App. 68-70); DeBrosky’s involvement
with a paint crew and his active participation in an
educational program were terminated (App. 94); and
Royce’s supportive counselling relationships with the
staff at Norfolk were disrupted (App. 104).34 Since
rehabilitation is the principal purpose of confinement in
Massachusetts, M.G.L.A. Ch. 124, sec. 1(e) (1974
ed.),35 disruption or interference with these activities
must be viewed as a substantial barrier to the prisoner’s
ability to improve himself and partake of additional
opportunities. Cf. Cardaropoli v. N orton , 523 F.2d 990,
995 at note 11 (2d Cir. 1975); Catalano v. United
States, 383 F.Supp. 346, 350-351 (D.Conn. 1974).
P̂etitioners and the Solicitor General repeatedly suggest that
the Court of Appeals erroneously viewed the weight of the
respondents’ interest rather than the nature of it. However, the
petitioners and amicus ignore the analytical underpinnings of the
Court of Appeals decision. The interests asserted by the inmates
in this case were readily identifiable as implicating their liberty;
the only issue was whether the deprivations were substantial
enough to be protected by the Fourteenth Amendment. The
careful analysis by the Court of Appeals of the significance of
the deprivations to the respondents is consistent with the
approach in this Court’s prior decisions. See e.g., W olff v.
M cDonnell, 418 U.S. 539, 557 (1974) (prisoner’s interest must
have real substance). See also, Goss v. L opez, 419 U.S. 565, 576
(1975).
3sIt is clear that the nature of respondents’ interest affected as
a result of these deprivations is not dependent on whether these
losses are considered rights or privileges. M orrissey v. Brewer, 408
U S. 471, 482 (1972). See also, note 21, supra.
112
25
Therefore, the transfer of respondents on the basis of
allegations of misconduct from the relaxed, rehabilita
tive atmosphere of Norfolk to the rigid, restrictive
environments of maximum security institutions had a
traumatic affect on the prisoners’ lives36 and on the
residuum of their protected liberties.37
36Although the Court of Appeals considered geography
irrelevant in the present case (App. 147-148), many intrastate
transfers have serious geographical consequences. See United
States e x rel. Haymes v. M ontanye, 505 F.2d 977 (2d Cir. 1974)
cert, granted 422 U.S. 1055 (1975) (several hundred miles);
Stone v. Egeler, 377 F.Supp. 155 (W.D. Mich. 1973) affd. 506
F.2d 287 (6th Cir. 1974) (420 miles).
37In the face of these serious deprivations, the Solicitor
General contends that the liberty interests in W olff were only
recognized because “the State had bound itself by regulations
and a course of practice ... to impose solitary confinement [or
to forfeit good time] on ly on account o f m isconduct.” [S.G. Br.
at 20-22]. (emphasis supplied). Thus he argues that since neither
Massachusetts nor the federal government has similarly bound
itself to transfer a prisoner only because of misbehavior, there is
no protected liberty interest. The assumption of this argument is
that a statute or regulation must create a mutual understanding
between prisoners and prison officials that good time will not be
taken away nor solitary confinement imposed except upon
allegations of misconduct. Even if this argument is relevant to
the analysis of respondents’ property interest, it reflects a serious
misunderstanding of the nature of the liberty interest. See note
21, supra. A person’s liberty interest does not turn on the
perceived seriousness of the behavior which triggers its
deprivation; it depends upon the nature and seriousness of the
deprivations imposed. A prisoner’s liberty interest should be no
less implicated if good time were forfeited or if solitary
confinement were imposed after an intrastate transfer. Con
versely, an inmate’s liberty might not be implicated if the
sanction for serious misconduct was a brief cessation of lesser
privileges. The fact that Nebraska reserved forfeiture of good
time or solitary confinement for violations a major misconduct
does not define the substance or content of an inmate’s liberty; 113
it only serves to further substantiate the compelling need for a
hearing to ensure a reliable determination of whether the charged
behavior has occurred. Cf. In re Gault, 387 U.S. 1, 21 (1967);
Robbins v. Kleindienst, 383 F.Supp. 239, 248 (D.D.C. 1974).
26
b. L iberty In terest in Institutional Reputation.
The stipulation reflected that the respondents were
not merely transferred to more adverse conditions but
also that they were identified as troublemakers in their
institutional files (App. 62).
An inmate, like any other person in our society, has
a cognizable liberty interest in avoiding the adverse
consequences which flow from an arbitrary designation
or classification. The right to challenge a “ stigma” or
“badge of disgrace” does not turn on the status or
maturity of the individual, for an alleged alcoholic,
Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971),
or a school child in his formative years, Goss v. L opez,
419 U.S. 565, 574 (1975) is as entitled to the
protections of the due process clause as any other
citizen of our country. Nor is the prisoner any less
protected because he is incarcerated, since this liberty
interest attaches to all individuals, regardless of the
power of the State to deal with a particular activity or
endeavor. See e.g., Wisconsin v. Constantineau, supra,
400 U.S. at 436 (alcoholic beverages); Goss v. Lopez,
449 U.S. 565, 574 (1975) (elementary schools); Board
o f R egents v. R oth , 408 U.S. 564 (1972) (state colleges
and universities).
This liberty interest is substantially affected by the
notation in respondents’ files that they were transferred
from a medium to maximum security institution on the
basis of allegations of misconduct. The prisoner’s
identity within the prison is embodied in his institu
tional file. Cohen, The D iscovery o f Prison R eform , 21
114
27
Buffalo Law Review 855, 879 (1972).38 His progress
throughout the correctional system, the severity and
duration of his prison experience, his custody level39
and parole40 are too closely linked to his institutional
38This identification results, in large part, from the integration
of the inmate into the correctional system. E. Goffman, Asylum s
18-19 (Anchor ed. 1961). When a convicted person first enters
prison, he is evaluated and classified at a certain custody level.
Sirico, Prisoner Classification and Administrative Decisionmaking,
50 Texas L. Review 1229, 1230-1235 (1972) (Study of Federal
Correctional Institution at Texarkana, Texas). Given the nature
of the prison community, this file subsequently becomes a
repository of information about all aspects of the inmate’s
behavior. Preiser v. Rodriguez, 411 U.S. 475, 492 (1973).
39See generally, Gifis, Nature o f Decisionmkaing in a Prison
Community, 1974 Wisconsin Law Review 349 (Study of
Massachusetts Correctional Institution, Concord). The file on the
prisoner follows the prisoner through his term of incarceration
and affects “his future [within the correctional system] with
unwarranted authority,” Sirico, supra, note 38 at 1231. The
pressures and demands upon prison officials and employees in
the day to day administration of a prison system almost always
compel them to reach immediate decisions, affecting substantial
interests of prisoners, on the basis of this file. See D. Glaser, The
Effectiveness o f a Prison and Parole System 132 (Abridged
edition, 1969); Bourde, The Use o f Involuntary Inter-Prison
Transfer as a Sanction, 3 Am. Journal of Criminal Law 117, 134
(1974); Sirico, Prisoner Classification and Administrative D eci
sionmaking, 50 Texas L. Rev. 1229, 1240-1241 (1972); Bergeson
and Hoerger, Judicial M isconceptions and the Hidden Agenda in
Prisoners’ Rights Litigation, 14 Santa Clara L. Rev. 747, 766,
note 53 (1974).
D̂ecisions on parole are also based on hurried assessments of
an inmate’s file. See e.g., R eport on N ew York Parole: A
Summary, 11 Criminal Law Bulletin 213, 285 (1975); Foote,
“The Sentencing Function” 17, 25, reported in Annual Chief
Justice Earl Warren Conference on Advocacy in the United States
(American Trial Lawyers Foundation, 1972). Cohen, The -Qg
Discovery o f Prison R eform , 21 Buffalo Law Review, 855, 880
(1972); President’s Commission on Law Enforcement and the
(continued)
28
file to permit the negative implications arising trom
transfers to more adverse conditions of confinement on
the basis of allegations of serious misconduct to remain
unchallenged throughout his term of confinement.
Moreover, this adverse designation cannot be mitigated
or removed by virtue of the inmate s subsequent
conduct, no matter how exemplary, Cardaropoli v.
N orton, 523 F.2d 990, 995 at note 11 (2d Cir. 1975);
Catalano v. United States, 383 F.Supp. 346, 350 (D.
Conn. 1974). If this stigma has been attached without a
sufficient basis, the prisoner may, in effect, be punished
anew each time his record is reviewed. See G om es v.
Travisono, 490 F.2d 1209, 1213 (1st Cir. 1973) vac.
and remanded, 418 U.S. 909 (1974), opinion on
reconsideration after remand, 510 F.2d 537 (1974). Cf.
Burgett v. Texas, 389 U.S. 109, 115 (1967). See also,
Hudson v. Hardy, 424 F.2d 854, 856 (D.C. Cir. 1970).
Consequently, the interference with respondents’ reha
bilitation and eventual release is substantial, for it
would be unrealistic to assume that the Parole Board41
(footnote continued from preceding page)
Administration of Justice: Corrections 63 (1967). See the
description of the North Carolina Parole process in the B rief fo r
the United States as Am icus Curiae in Weinstein v. Bradford, No.
74-1287 at 6-7 for an illustration of the Parole Board’s
dependence on an inmate’s institutional tile.
41 The Solicitor General contends that the consideration of
illegal transfers by the Parole Board in the future is irrelevant to
the existence of a cognizable liberty interest because respondents
have no more than a “unilateral” expectation of parole.
Moreover, he argues that, even if the due process clause applies
to the parole release process, the prisoner could be adequately
protected by a hearing on the transfer decision before the Parole
Board. Finally, amicus argues that any adverse consequences of
the transfer can be avoided by expunging the record of the
;Qg transfer from the files before the Parole Board.
These arguments again reflect a failure to distinguish between
liberty and property interests, for this Court’s prior cases did not
require a showing of a vested right or interest to implicate the
(continued)
29
and other correction officials, is assessing the respond
ents! suitability for release upon parole or work-release
or for participation in other rehabilitative programs,
will ignore the fact that respondents were transferred
from Norfolk for setting fires, possessing weapons and
trafficking in contraband.
The transfers also seriously damage the respondents’
standing and associations in the highly disciplined,
authoritarian life of the prison community. Cf. Goss v.
L op ez , 419 U.S. 565, 575 (1975). At the transferee
institution, the respondents will undoubtedly be viewed
critically by prison officials and employees as well as by
inmates. Prison officials will ordinarily perceive the new
inmate as an adjustment problem or “ troublemaker”
(footnote continued from preceding page)
“liberty” interest in one’s reputation, not to a property interest.
For example, in Wisconsin v. Constantineau, 400 U.S. 433, 437
(1971), the Court did not require a showing that the respondent
had a vested interest in buying liquor in upholding the
individual’s right to challenge the “badge of infamy” in that case.
Second, Am icus ignores the nature of parole board decision
making and the considerable pressures on the Parole Board. It is
wholly impractical to conclude that a Parole Board will review
prison transfers, in addition to the myriad other factors it
considers, in making a parole decision. Moreover, even if the
Board did consider the transfer, the prison inmate would be
called upon to discuss an event which might have occurred some
time in the past, and the prisoner would have slight chance of
rebutting the adverse inferences flowing from a transfer based on
allegations of misconduct. United States e x rel. Haymes v.
M ontanye, 505 F.2d 977, 982 (2d Cir. 1974) cert, granted 422
U.S. 1055 (1975). Cf. P eyton v. R ow e, 391 U.S. 54, 62 (1968).
Finally, expungement of the notation of a transfer would be
inconsequential if the inmate’s file reflected, without any
explanation, his presence in another, more secure institution.
Indeed, such unexplained entries in a record would increase,
rather than minimize, the attention directed to the transfer. 117
30
who warrants close scrutiny and rigid controls.42
Difficulties of orientation of the most fundamental sort
could result for the alleged “ troublemaker” in the new
prison since “ labels generally influence the way in
which correctional employees view and deal with an
inmate on a day to day basis.”43 Also, fellow prisoners
are frequently hostile to transferees, possibly because
they view them as “ stool pigeons” who have been
transferred to protective custody reasons.44
In an effort to minimize the adverse consequences to
respondents’ reputations, the petitioners contend that
the criminal sentence is the stigma,45 and the additional
42See A ttica : The Official Report of the New York State
Special Commission on Attica, 121, 133 (Bantam ed. 1972)
[hereinafter A tt ic a ] .
43Sirico, supra at note 38, 1232. See A ttica , 133.
44 See the careful findings of the district court in Gom es v.
Travisono, 353 F.Supp. 457, 462 (D.R.l. 1972). One observer of
the prison community noted that the epithet of “stool pigeon” is
the worst possible “badge of infamy” for the prisoner in his
community. Sykes, supra note 28 at 87-90. Cf. Wieman v.
Updegraff, 344 U.S. 183, 191 (1952); Board o f R egents v. Roth,
408 U.S. at 565, 573 (1972).
45There is little doubt that a criminal conviction imposes a
stigma and hardship upon the inmate which often results in
indelible damage to his reputation in the outside world. Special
Project, Tiie Collateral Consequences o f a Criminal Conviction,
23 Vanderbilt Law Review No. 5 (May, 1970). Such
deprivations, however harsh, are tolerated, not because the
person is labelled a “criminal” but because he was afforded due
process protections prior to the deprivation of his liberty.
Similarly, a prisoner is afforded the protection of various
constitutional provisions, including the guarantee of due process
of law, regardless of the offensiveness of his original criminal
conduct. W olff v. M cDonnell, supra, 418 U.S. 539, 555-556
118 (1974).
31
characterization of an inmate as a troublemaker is of
little consequence. [Pet. Br. at 19, note 7.] However,
reputations, like any other liberty interests and
constitutional rights of the prisoners, are not left
behind at the prison gates, W olff v. M cD on n ell 418
U.S. 539 (1974). See also, Procunier v. M artinez, 416
U.S. 396, 428 (1974) (Marshall, J. concurring). The
necessity for restriction of the exercise of a prisoner’s
rights flows, not from a lack of sensitivity to the
dignity of the prisoner, but from a need to
accommodate legitimate penal objectives. However,
there is no legitimate penal objective which justifies the
imposition of an additional “badge of infamy” upon an
inmate in a fashion that will affect the nature, severity
and, perhaps length of his entire period of incarcera
tion. The chances of good faith error, misjudgment, or
official caprice are all too present to allow such state
action to be undertaken without due process safeguards.
Indeed, the particular circumstances of prisoners should
compel the Court to be more vigilant in ensuring an
adequate opportunity to challenge disparagements of
their character. Precisely because of their conviction
and sentence, prisoners have a substantial interest in
restoring their good name, especially in the face of
public accusations of the State that they continue to
engage in anti-social conduct within the correctional
environment. The “ slave of the State” doctrine,46 which
this argument of petitioners recalls, should remain a
discarded vestige of a former era and not become a
contemporary reality.
46R uffin v. Commonwealth, 62 Va. (21 Grath) 790, 794-796
(1871).
119
32
In summary, respondents have suffered immediate,
substantial and indeterminate adverse changes47 in the
scope and quality of their conditions of confinement.48
These changes deprive them of the “ liberty” protected
by the Due Process Clause and require the application
of minimal procedural protections prior to their
transfers.
47Petitoners and amicus substantially rely on Board o f Regents
v. R oth, 408 U.S. 564 (1972) to suggest that respondents’ liberty
interest was not implicated in their transfers. However, the vast
differences between the present situation and that in R oth are
more obvious than the similarities. R oth did not consider at all
the direct, immediate and adverse restraints upon bodily
movement which the respondents suffered and which remain at
the core of liberty. Also, the Court specifically noted in R oth
that the State did not make any charge of misconduct against
the teachers; the opposite is true on the record before this Court
since the transfers directly put at issue the respondents’
reputation and character. Finally, there was no evidence in Roth
that the State limited R o th ’s options for alternative opportuni
ties. In contrast to the sparse record in R o th, the petitioners’
stipulation acknowledges that respondents’ rehabilitative program
involvement will be affected by the notation in their file. See
also, Cardaropoli v. Norton, 523 F.2d 990, 995, note 1 I (2d Cir.
1975). Therefore, Roth highlights rather than diminishes the
nature and extent of respondents’ deprivations of liberty
stemming from the transfers.
48Lower courts have uniformly recognized, after careful and
considered analysis of various factual patterns, that similar
consequences of a transfer require the application of the Due
Process Clause. N ew kirk v. Butler, 364 F.Supp. 497, 503
(S.D.N.Y. 1973) aff’d 499 F.2d 1214 (2d Cir. 1974) vac. and
remanded with instructions to dismiss as moot, 422 U.S. 395
(1975); M ontanye v. Haymes, 505 F.2d 977 (2d Cir. 1974) cert,
granted 422 U.S. 1055 (1975); Carroll v. Sielaff, 514 F.2d 415
(7th Cir. 1975); S tone v. Egeler, 377 F.Supp. 115 (W.D. Mich.
1973) aff’d 506 F.2d 287 (6th Cir. 1974); White v. Gillman, 360
F.Supp. 64 (S.D. Iowa 1973); Aikens v. Lash, 371 F.Supp. 482
(N.D. Ind. 1974); Walker v. Hughes, 386 F.Supp. 32 vacating
375 F.Supp. 708 (E.D. Mich. 1974); R obbins v. Kleindienst, 383
(continued)
33
2. The Respondents Possess A Legitimate Claim of
Entitlement To The Rights And Benefits Attached to
Confinement At MCI, Norfolk Since Massachusetts
Has Organized Its Prisons To Provide Graduated
Conditions of Confinement On The Basis of Con
duct.49
The scope of property, like that of liberty, is not
constricted by rigid, formalistic definitions. Board o f
R egents v. R oth , 408 U.S. 564, 571-572 (1972).
Instead, the procedural protection of property “ is a
safeguard of the security of interest that a person has
already acquired in specific benefits.” Board o f R egents
v. R oth , supra, 408 U.S. at 576-577; Goss v. L opez,
supra, 419 U.S. at 573. These interests are “not created
by the Constitution. Rather they are created and their
dimensions are defined by existing rules or understand
ings that stem from an independent source such as state
(footnote continued from preceding page.)
F.Supp. 239 (D.D.C. 1974); Clonce v. Richardson, 379 F.Supp.
338 (W.D. Mo. 1974). See also, National Advisory Committee on
Criminal Justice Standards and Goals, Corrections, Standard 2.13
at 54-55 (1973) where an expert panel of individuals involved in
corrections recognized that a hearing is necessary because
“decisions [involving changes of custody levels] can have a
critical effect on the offender’s degree of liberty, access to
correctional services, basic conditions of existence within a
correctional system, and eligibility for release.” See also, Bourde,
The Use o f Involuntary Inter-Prison Transfer as a Sanction, 3
Am. Journal of Criminal Law 117, 159-163 (1974); Millemann
and Millemann, The Prisoner’s Rights to Staty Where He Is: State
and Federal Compacts Run A fou l o f Constitutional D ue Process,
3 Cap. U. L. Rev. 223 (1974); Note, Procedural D ue Process in
the Involuntary Institutional Transfer o f Prisoners, 60 Va. L.
Rev. 333 (1974).
49The Court of Appeals did not have to find that the transfer
of the respondents affected their property interest protected by
the Fourteenth Amendment since the majority recognized that
respondents’ liberty interest was implicated in their transfer.
34
law — rules or understandings that secure certain
benefits and that support claims of entitlement to those
benefits.” Board o f R egents v. R oth , 408 U.S. 564, 577
(1972) (emphasis supplied); Goss v. L opez, 419 U.S.
565, 572-573 (1975). Such understandings do not
necessarily have to flow from sources of positive law,
like statutes or administrative regulations, for “ [i] t is a
purpose of the ancient institution of property to
protect those claims upon which people rely in their
daily lives, reliance that must not be arbitrarily
undermined.” Board o f R egents v. R oth , 408 U.S. 564,
577 (1972); Perry v. Sindermann, 408 U.S. 593,
599-601 (1972).
To properly evaluate respondents’ property interests,
it is necessary to review briefly the complex interplay
of statutes and administrative practice which underlies
the Massachusetts correctional system.
Massachusetts statutes explicitly emphasize the reha
bilitation of the offender and his reintegration into the
community as the principal goals of corrections in the
state. These statutes specifically require the Commis
sioner of Corrections “ to establish, maintain and
administer programs of rehaiblitation [for prison
ers] . . . designed as far as practicable to prepare and
assist each such person to assume the responsibilities
and exercise the rights of a citizen of the Common
wealth.” M.G.L.A. Ch. 124, sec. 1(e) (1974 ed) and “ to
establish a system of classification for [prisoners] the
purpose of developing a rehabilitation program for each
such person.” M.G.L.A. Ch. 124, sec. 1(f) (1974 ed).
See also, M.G.L.A. Ch. 127, sec. 48 (1974 ed)
(establishing work-release). To effectuate this legislative
purpose, the Department of Correction has established
graduated conditions of confinement at the state
prisons within Massachusetts (App. 135), and incarcera-
35
tion in a particular prison results in the inmate’s
acquisition of various rights and benefits. These may
include a range of opportunities, including work-
release50 and educational programs, increased availa
bility of furloughs and eligibility for other rehabilitative
programs (App. 62).51 The “ bundle” of rights and
benefits available to a prisoner varies depending upon
where he is incarcerated.52
Furthermore, the inmate’s level of custody in
Massachusetts and opportunities for program involve
ment are related to his conduct within the prison
system.53 Transfer to lower custody status, with the
concomitant increase in benefits and opportunities, is
predicated upon the inmate’s “ capacity to take on
greater responsibility . . . giving him more freedom, so
that at release the transition from life in a correctional
S0Educational and work-release programs in Massachusetts
were established by M.G.L.A. Ch. 127, secs. 48 and 49 (1974
ed). For participation in these rehabilitative programs, the inmate
must “demonstrate that he is responsible and deserving of these
opportunities.” M.G.L.A. Ch. 127, sec. 49A (1974 ed).
5,See pages 21-22, supra.
52It is irrelevant, for purposes of the effect on respondents’
property interest, that Massachusetts did not have to create a
corrections system with graduated conditions of confinement.
Fano v. Meachum, (App. 150); Goss v. L opez, 419 U.S. 565, 574
(1975).
53A former Acting Commissioner of Correction described the
philosophy of the Massachusetts Department of Correction in the
following terms:
The classification process and the range of correctional
programs are meant to provide opportunities for
change ... As the inmate demonstrates his capacity to take
on greater responsibility, the controls of his correctional
environment should be relaxed, giving him more freedom,
so that at release the transition from life in a correctional 123
facility to life on the street will be a relatively smooth one.
Hearings B efore Subcom m ittee No. 3 on Corrections o j the
Committee on the Judiciary o f the House o f Representatives, 92
(continued)
36
facility to life on the street will be a relatively smooth
one.” 54 Within the correctional system, inmates thus
have the right to be treated “ with the kindness which
their obedience, industry and good conduct merit.”
M.G.L.A. Ch. 127, sec. 32 (1974 ed).
Therefore, an inmate in Massachusetts is entitled to
progress through a series of reduced controls and
increased program opportunities as long as he is not
involved in acts of misconduct which demonstrate his
inability to remain at that custody level. See also,
Daigle v. Hall, 387 F.Supp. 652, 659 (D. Mass. 1975).
Conversely, if the prisoner’s “ obedience, industry and
good conduct” do not merit confinement in a particular
institution, he may be transferred and lose the rights
(footnote continued from preceding page)
Congress (First Session) Part V: Prisons, Prison R eform and
Prisoners’ Rights, Massachusetts (December 18, 1971). Thus, the
prison system in the Commonwealth reflects a system of gradual
relaxation of controls and custody as an inmate progresses in
behavior.
The Solicitor General acknowledges that a similar situation
prevails in the federal system [S.G. Br. at 3, note 3]. See
Norman A. Carlson, The Federal Prison System : F orty-F ive Years
o f Change, 39 Federal Probation 37, 38 (June, 1975), where the
Director of the Federal Bureau of Prisons describes the federal
system as follows:
A correctional continuum emerged, designed to give
inmates an opportunity to improve their chance for
post-release success while making gradual transition from a
life of confinement to the freedom of society.
54See n ote 53, supra.
124
37
and benefits provided at that prison.55 Thus, a claim of
entitlement has evolved in Massachusetts from this
interrelationship of state law and administrative
practice, upon which prisoners legitimately can rely
when they move from one prison to another.56 Such an
arrangement allows state inmates to participate in the
rehabilitative programs at a particular institution and to
55Petitioners appear to concede as much when they state:
Any inmate confined within the Massachusetts correc
tional system is subject to transfer, no matter how
exemplary his conduct at an institution. As a matter of
practice, of course, this rarely occurs . . . [Pet. Br. at 22].
See also, E. Powers, supra, note 31:
The courts do not commit men to Norfolk. Selected
inmates sentenced to Walpole or Concord are transferred
there where most of them serve out their terms, while a
few, fou n d n ot suitable fo r a medium security institution,
are returned to their original institutions. Id. at 211.
(emphasis supplied.)
Ĉonsequently, the instant circumstances find their analogue
in Perry v. Sindermann, 408 U.S. 593 (1972) rather than in
Board o f R egents v. R oth , 408 U.S. 564 (1972), upon which the
petitioners rely. In the latter case, the notice of Roth’s faculty
appointment explicitly provided for the specific termination date
of his employment. Board o f R egents v. R oth , supra, 408 U.S. at
566. In Perry, however, the asserted property interest was an
understanding shared by faculty and administration of the
school’s tenure policy. Perry v. Sindermann, supra, 408 U.S. at
599-600. The respondents contend that a similar understanding
has developed in Massachusetts as a result of the emphasis on
rehabilitation and the establishment of graduated conditions of
confinement predicated on the behavior of the prisoner.
125
38
partake of the rights and benefits at that prison, absent
serious misconduct on their part.57
The record confirms the nature of respondents’
property interest in the instant case. Petitioners
terminated the prisoners’ participation in rehabilitative
programs at Norfolk and limited their opportunities for
such statutorily and administratively created programs
by transferring respondents to Walpole. In making these
determinations on the basis of allegations of
respondents’ misbehavior, petitioners concluded that the
prisoners’ conduct was “ prohibitive to rehabilitative
57Petitioners [Pet. Br. at 21] and the amicus [S.G. Br. at
13-14] misconceive the nature of the respondents’ property
interest. The respondents are not asserting a claim of entitlement
to be in a particular institution; they are contending that once
they are in a position to enjoy the rights and benefits at a
particular institution or classification level, they have a legitimate
claim of entitlement to these benefits. Furthermore, Massachu
setts may not be constitutionally obligated to establish a system
which stresses rehabilitation of the offender and his reintegration
into the community; however, the state has not only asserted
that rehabilitation and reintegration are the primary purposes of
corrections within its jurisdiction, but also, Massachusetts has
required the Commissioner to develop a series of programs,
opportunities and benefits for inmates to accomplish these
statutory goals. Cf. Goss v. L opez, 419 U.S. 565, 576; W olff v.
M cDonnell, supra, 418 U.S. 539, 557-558. See also, Goldberg v.
Kelly, 397 U.S. 254, 262 (1970).
It is interesting to note that the prisoners’ interest in the
present case is identical to that acknowledged by the Bureau of
Prisons in Cardaropoli v. Norton, 523 F.2d 990, 995 at note 11
(2d'Cir. 1975). The Bureau of Prisons’ contention in Cardaropoli,
as presented to the court, was that “[o]nly subsequent to the
[initial] classification, after the inmate has been enjoying the
benefits allowed within that classification, can he have a
legitimate claim o f entitlem ent to those benefits” [emphasis
supplied]. Tire Government’s position in this case, therefore,
appears grounded upon convenience, rather than upon consistent
constitutional analysis.
39
programming at MCI, Norfolk” (App. 175) or reflected
an unwillingness or inability “ to accept the responsi
bility comensurate [sic] with assignment to MCI,
Norfolk, a medium security facility” (App. 53).58
However, petitioners suggest that the losses suffered
by respondents are not of sufficient substance to affect
the property interest protected by the Due Process
Clause. Petitioners’ position is refuted by prior decisions
of this Court. As the Court recently noted:
[I] n determining whether due process require
ments apply in the first place, we must look not
to the ‘weight’ but to the nature of the interest at
stake . . . [T] he length and consequent severity of
a deprivation, while another factor to weigh in
determining the appropriate form of hearing “ is
not decisive of the basic right” to a hearing of
some kind . . . The Court’s view has been that as
long as a property deprivation is not de minimis,
its gravity is irrelevant to the question whether
account must be taken o f the Due Process Clause.
Goss v. Lopez, supra, 419 U.S. 565, 575-576
(emphasis supplied and citations omitted).
The deprivations to the respondents occasioned by
their transfers are certainly not de minimis. Within the
Massachusetts prison system, which emphasizes the
reintegration of the offender into the community,
educational and rehabilitative opportunities, work-
release and furloughs are critical for the prisoner and
enable him to establish a positive record for the Parole
Board.59 These benefits and opportunities also vitally
58See n ote 55, supra.
P̂articipation in these programs may have a real effect on
the duration of respondents’ sentences as well, for the
Massachusetts legislature has directed that additional good time
be awarded for participation in educational, vocational and other
rehabilitative programs. M.G.L.A. Ch. 127, sec. 129D (1974 ed).
40
assist the inmate with his own self-development. Thus,
the importance of these opportunities in the prison
environment cannot be over-emphasized, See Catalano
v. United States, supra, 383 F.Supp. at 351. Finally,
the exclusion of respondents from these programs is not
just a temporary one; it is indefinite and they could be
forever barred from participation in meaningful rehabili
tative activities. Cf. Goss v. Lopez, 419 U.S. 565, 576
(1975). Therefore, a prisoner in Massachusetts has a
legitimate claim of entitlement to rehabilitative op
portunities “ which is protected by the Due Process
Clause and which may not be taken away for
misconduct without adherence to the minimum pro
cedures required by that clause.” Goss v. Lopez, 419
U.S. 565, 574 (1975).
B. The Preservation of the Minimal Due Process
Protections Guaranteed by W olff v. McDonnell
Necessitates the Application of the Due
Process Clause to Petitioners’ Decisions to
Transfer Respondents.
Wolff v. McDonnell, 418 U.S. 539 (1974) reflects a
careful examination of the due process considerations
involved in internal prison administration. In an effort to
avoid the procedures mandated by Wolff, petitioners [Pet.
Br. at 28] and the amicus [S.G. Br. at 15-16] assert
that transfers to more adverse conditions of confine
ment, including those at issue in the present case,
involve totally different considerations than disciplinary
adjudications and, as a consequence, these transfer
decisions should be immune from the Wolff require
ments. Even if petitioners’ characterization of transfers
accurately reflects the decisionmaking process in
128
41
prisons, either in general or in the present record, it
begs the question of whether this Court, in order to
preserve the force of W olff, should require that
procedural due process be accorded a prisoner who is
transferred to more adverse conditions on the basis of
alleged misconduct. Since the position advanced by
petitioners has grave consequences for the continued
application of the constitutional safeguards ordered in
Wolff, their arguments should be closely scrutinized.
Petitioners’ contention, to be fully understood, must
be reviewed in the context of the close interrelationship
between prison discipline and the reclassification
transfer of an inmate to more restrictive conditions on
the basis of misbehavior.
Classification has been described as “ the development
and administration of an integrated program of
treatment for the individual, with procedures for
changing the program when indicated.” 60 Obviously, as
petitioners concede, this process includes determinations
about allegations of misconduct “which [indicate]
inability to adjust in [the] general prison population” 61
[Pet. Br. at 28 and S.G. Br. at 15] [brackets supplied].
Through such a process, “ classification not only
contributes to the objectives of rehabilitation but also
to custody, discipline, work assignments, officer and
inmate morale, and the effective use of training
60 See the Regulations Governing Disciplinary and
Classification Procedures at the A dult Correctional Institutions,
State o f R h od e Island cited in Morris v. Travisono, 310 F. Supp.
857, 865 (D.R.l. 1970). These so-called Morris rules are often
cited as a reflection of the combined efforts of prisoners and
prison officials to devise a mutually accommodating system of
regulations (See e.g. Palmigiano v. Baxter, 487 F.2d 1280, 1285,
note 13 (1st Cir. 1973); therefore, they serve as an invaluable
source of the general principles of prison decisionmaking. 129
6lMorris v. Travisono, 310 F. Supp. 857, 868 (D.R.l. 1970).
42
opportunities.” 62 The transfer to more adverse con
ditions on the basis of misconduct is the principal
mechanism for increasing the number and degrees of
control on an inmate’s life in order to effectuate a
variety of penal objectives, including rehabilitation,
discipline and security. See e.g., Wolff v. McDonnell,
418 U.S. 539, 545, note 5 (4) (1974); Robbins v.
Kleindienst, 383 F.Supp. 239, 242-244 (D.D.C. 1974);
See also, Bourde, The Use o f Involuntary Inter-Prison
Transfer as a Sanction, 3 Am. Journal Criminal Law
117, 118 (1974).
The purpose of the disciplinary process has been
described in strikingly similar terms. Indeed, the
Nebraska prison officials in Wolff v. McDonnell, supra,
418 U.S. 539 (1974) asserted that the disciplinary
process has a “ major role on furthering the institutional
goal of modifying the behavior and value systems of
prison inmates sufficiently to permit them to live
within the law when they are released.” Id. at 562-563,
and 548, note 8. The disciplinary process, like the
classification process, often involves wide-ranging in
quiries into a prisoner’s behavior to further “ cor
rectional treatment goals.” Id. at 571 (App. 109).
Transfer is one of a variety of sanctions that may be
imposed to effectuate these purposes (App. 117);
Robbins v. Kleindienst, 383 F.Supp. 239, 244 (D.D.C.
1974) (Federal Bureau of Prisons).63
62Id. at 865.
63Bourde, The Use o f Involuntary Inter-Prison Transfer A s a
Sanction, 3 Am. Journal of Criminal Law 117, 118 (1974). The
author describes the use of the transfer as an adjunct to the
disciplinary process at the federal minimum security prison in
Seagoville, Texas.
130
43
Consequently, there is a substantial overlap between
the disciplinary process and the reclassification by
transfer of an inmate on the basis of misconduct. Both
involve factual inquiries into the behavior of the inmate
and the development of an appropriate response which
takes into account the needs of the institution and of
the individual. Thus, a transfer board might be called
upon to determine whether an inmate has demonstrated
“ poor institutional adjustment” on the basis of his prior
conduct, R obbin s v. Kleindienst, supra, 383 F. Supp. at
243 or, as the boards convened by petitioners were
required to do, to adjudicate whether specific inmates
were linked to the planning and execution of fires,
possessing contraband such as weapons, or trafficking in
drugs (App. 39). Similarly, a disciplinary board will
consider “the causes for the adverse behavior, the
setting and circumstances in which it occurred, the
man’s accountability, and the correctional treatment
goals.” W olff v. M cD onnell, supra, 408 U.S. at 571. The
lines are even further blurred when transfer is a possible
consequence of both classification and disciplinary
proceedings because, as correctional officials have can
didly realized, “ [i]n any penal system embracing several
institutions, transfer from one to another is often an
effective disciplinary procedure as well as an administra
tive necessity . . .” American Correctional Association,
Manual of Correctional Standards 416 (1972).64
Ŝee also, G om es v. Travisono, 510 F.2d 537, 539 (1st Cir.
1974) (in disciplinary transfers the premise of finding an
infraction and the consequences of such a finding cannot be
distinguished from the penalty and findings in Wolff}', Bourde,
The Use o f Involuntary Inter-Prison Transfer as a Sanction, 3
Am. Journal Criminal Law, 127, 129 (1975).
131
44
Of equal relevance, the transfer to more adverse
conditions of confinement and the disciplinary sanction
for misconduct have identical consequences for the
inmate. W olff v. M cD onnell, supra, 418 U.S. at note 19;
Fano v. M eachum , (App. 145, note 2). As a result of
either process, a prisoner’s educational and rehabilitative
programs can be substantially disrupted, his custody
level can be significantly altered, and his opportunities
for involvement in programs can be hindered.
The general interrelationship of these two processes is
starkly demonstrated by the record in the instant case.
The respondents were originally furnished with dis
ciplinary reports which charged them with alleged acts
of misconduct constituting major violations of institu
tional rules. If the inmates had been provided with
disciplinary hearings on these charges, they would have
been afforded the full range of due process required by
W olff, including notice, a hearing and a written
statement by the factfinders as to the evidence relied
on and the reasons for the disciplinary action. W olff v.
M cD onnell, 418 U.S. 539, 565 (1974). The disciplinary
board, after adjudication of the charged conduct, could
then have considered the respondents’ entire record
(App. 115) and could have imposed transfer as a
sanction (App. 117). By abruptly terminating the
disciplinary process and pursuing the classification
route, petitioners were able to avoid the strictures of
W olff, despite the fact that the alleged misbehavior
considered by the Board was the same as that charged
in the disciplinary reports.
The identical circumstances could arise in the future,
whether as a result of inadvertence or intent on the
part of prison officials. There is always the possibility,
of course, that officials might arbitrarily employ the
132
45
transfer device as a means of avoiding minimal due
process requirements. United States ex rel. Haymes v.
Montanye, 505 F.2d 977, 980, note 4 (2d Cir. 1974).
More likely, however, prison officials will be compelled
by the speed and momentum of events to forego the
more cumbersome disciplinary process for the ad
ministrative convenience of summary transfer, a
decision they might not reach upon calmer reflection.
Cf. Joint Anti-Fascist Refugee Committee v. McGrath,
341 U.S. 123, 149 (1950) (Frankfurter, J., concurring).
See also, Carlo v. Gunter, 520 F.2d 1293 (1st Cir.
1975). Or a particular official, in the exercise of his
good faith judgment, might misguidely propose transfer
for “rehabilitation,” “treatment” or “ experimentation”
which is indistinguishable from the imposition of a
sanction for misconduct. See e.g., Daigle v. Hall, 387
F.Supp. 652, 658 (D. Mass. 1975); Clonce v.
Richardson, 379 F.Supp. 338, 349 (W.D. Mo. 1974).6S
The procedural rights recognized in Wolff will be given
short shrift in such situations.
6sThe use of euphemistic labels as a guise for punishment is
already a reality in prison administration. See e.g., Hearings on
Behavior Modification Programs; Federal Bureau of Prisons, 64,
Subcommittee on Courts, Civil Liberties and the Administration
of Justice of the Committee on the Judiciary (93rd Congress, 2d
Session) (February 27, 1974); Individual Rights and the Federal
R ole in Behavior M odification 7-10, 31-34, Committee on the
Judiciary, United States Senate (93rd Congress, 2d Session)
(November, 1974). This result is inevitable since treatment
programs in prisons are invariably subordinated to custodial
needs, with obvious consequences for the daily life of the
inmate. Powelson and Bendix, Psychiatry in Prison, 14
PSYCHIATRY 73, 79, 80-83 (1951). Psychiatrists, with
experience in the prison environment, recognize that often “the
inmate is subjected to punitive practices which are represented as
designed for his rehabilitation.” Id. at 84.
133
46
Petitioners’ solution to this dilemma, however, is to
insulate transfer hearings from the due process clause
on the ground that these hearings are “ entirely
different” from disciplinary hearings [Pet. Br. at 28].
This suggestion, while possessing simplicity, lacks every
other virtue, for it would emasculate the constitutional
force of W o lff and would result in substantial confusion
in the administration of justice and of prisons in this
country. At the core of petitioners’ claim is the premise
that there is some magical distinction which obtains
from the use of labels such as “ transfer,” “adminis
trative,” “disciplinary” or “ punitive.” Yet petitioners
concede that these formal distinctions have little
meaning in the prison context for they recognize that
“ [a] transfer hearing . . . may bear aspects of a
disciplinary hearing insofar as allegations of past
misconduct may be heard” [Pet. Br. at 28] .66 Thus, the
need is still present, as in W olff, to ensure that the
reasons for such a transfer are reliably found as a
“ hedge against arbitrary determination of the factual
predicate for the imposition of the sanction.” W olff v.
M cD onnell, supra, 418 U.S. 571-572, note 19. The
“paradox” of different constitutional treatment for the
closely related disciplinary and transfer proceedings
would be apparent to both inmates and prison officials
since the need for reliable and accurate determination
of the facts at issue is no less significant in either
proceeding.67
66Respondents would agree that a prisoner does not have a
constitutional right to two hearings on allegations of misconduct;
therefore any adjudications at the disciplinary hearing could be
relied on at a subsequent transfer hearing, absent a showing of an
error on the face of the record or apparent procedural defects in
the prior proceeding. Cf.M orrissey v. Brewer, 408 U.S. 471,490
(1972).
67See G om es v. Travisono, 490 F.2d 1209, 1215 (1st Cir.
1973); vac. and remanded 418 U.S. 909 (1974) opinion on
reconsideration on remand 510 F.2d 537 (1st Cir. 1974).
47
Consequently, the gossamer distinctions proposed by
petitioners tend to obscure rather than clarify constitu
tional analysis.68 A similar realization led the Court to
reject the disquieting results of the right-privilege
doctrine as of little use in resolving issues of
constitutional magnitude. Morrissey v. Brewer, 408 U.S.
471, 481 (1972); Graham v. Richardson, 403 U.S. 365,
374 (1971); Goldberg v. Kelly, 397 U.S. 254, 262
(1970). The same results would obtain from elevating
petitioners’ emphasis upon labels to the level of
constitutional doctrine. Bourde, The Use o f Involuntary
Inter-Prison Transfer as a Sanction, 3 Am. Journal of
Criminal Law, 117, 159-163 (1974).
Finally, the consequences of requiring the application
of due process for the imposition of discipline but not
for transfer to more adverse conditions of confinement
on the basis of misconduct would be devastating for the
federal courts, prison officials and inmates. This
dichotomy would necessitate endless judicial inquiries
into whether a transfer to a higher custody status on
the basis of allegations of misconduct was, in actuality,
a “disciplinary” hearing. The judicial investigation into
the “ real” as opposed to the “ purported” motive or
“in recognition of this problem, many lower federal courts
have rejected “administration by label” and have focused instead
on the effects of the transfer upon the inmate and the functional
value of a hearing in the particular circumstances. See e.g.,
R osenberg v. Preiser, 388 F. Supp. 639 (S.D.N.Y. 1975);
R obbins v. Kleindienst, 383 F. Supp. 239, 248 (D.D.C. 1974);
Clonce v. Richardson, 379 F. Supp. 338, 349 (W.D. Mo. 1974);
Kessler v. Cupp, 372 F. Supp. 76, 77 (D. Ore. 1973). Post-W olff
cases have interpreted the decision in W olff to compel such
inquiries rather than an examination of “motive” or “purpose.”
See e.g. G om es v. Travisono, 510 F.2d 537, 541 (1st Cir. 1974);
Fano v. Meachum (App. 154, note 2). 135
48
purpose of the transfer would thrust the federal courts
into a morass of subjective inquiry in the highly
sensitive area of prison administration. See Fano v.
M eachum , (App. 155-156) (Campbell, J., dissenting).
Since each case would turn on its particular historical
facts, the volume of litigation would produce little of
consequence in the way of standards for prison
administrators or inmates.69 Cf. Procunier v. Martinez,
416 U.S. 396, 407 (1974).
Consequently, the petitioners’ approach would soon
transform the judicial guarantees of fairness in prisons,
so recently recognized in W olff, into hollow rights.
Permitting the transfer of an inmate to escape the
requirements of the Due Process Clause would signal
the fact that fundamental rights in prisons are
determined by prison officials, not by the Constitution.
For these reasons, minimal due process safeguards must
be provided prior to a transfer which results in adverse
changes in the overall conditions of confinement,
particularly in the present case since the transfer was
predicated on allegations of past misconduct.
69Tfiis should be contrasted with the facts which must be
evaluated when traditional constitutional analysis is employed
and the effects of the transfer upon the inmate and the
appropriateness of due process procedures in the particular
circumstances are being considered. The progeny of Goldberg v.
K elly, 397 U.S. 254 (1970) attests to the familiarity and
expertise of courts with these inquiries.
136
49
II.
THE TRANSFER HEARINGS FAILED TO
MEET MINIMAL DUE PROCESS REQUIRE
MENTS BECAUSE THE NOTICE OF THE
HEARINGS AND THE HEARINGS WERE
I N S U F F I C I E N T TO PROVIDE THE
PRISONERS WITH A MEANINGFUL
OPPORTUNITY TO RESPOND TO THE
ALLEGATIONS OF MISCONDUCT.
Since the respondents were deprived of many
substantial protected interests by their transfers, they
were entitled to hearings that met the minimal
requirements of the Due Process Clause. Board o f
Regents v. Roth, 408 U.S. 564, 569-578 (1972). The
Court, therefore, must determine what specific pro
cesses are required in order to afford a fair adjudication
of the relevant issues under the present set of
circumstances. Cafeteria and Restaurant Workers Union
v. Me Elroy, 367 U.S. 886, 895 (1961); Wolff v.
McDonnell, 418 U.S. 539, 560 (1974); Morrissey v.
Brewer, 408 U.S. 471, 481 (1972). In making this
determination in the instant case, “ there must be
mutual accommodation between institutional needs and
objectives and the provisions of the Constitution that
are of general application.” Wolff v. McDonnell, 418
U.S. 539, 556 (1974); Cafeteria and Restaurant Workers
Union v. McElroy, 367 U.S. 886, 895 (1961).
After balancing the opposing interests of the parties
in the present circumstances, the court of appeals ruled,
in a carefully reasoned opinion (App. 144-156), that
the hearings afforded the prisoners in this case were
constitutionally deficient since (1) the notices of
hearings given respondents were inadequate to inform
them properly of the serious allegations against them 137
50
(App. 152) and (2) no summary was provided
respondents of the in camera informant testimony
relied on by the hearing board (App. 151-152).
A. A Careful Balancing O f The Countervailing
Interests Demonstrates That The Respondents
Were Entitled To The Minimal Procedural
Requirements Extended To Prisoners In W olff
v. McDonnell.
This Court has already had the opportunity, in W olff,
to reflect at length on certain of the competing
interests of prison officials and prisoners in determining
the quantum of due process required for internal prison
hearings where prisoners suffer the loss of good conduct
time or a major adverse change in the conditions of
confinement. The inmates in this case have an interest
identical to the prisoners in W o l f f0 in avoiding the
immediate and substantial deprivations which result
from transfer to more adverse conditions on the
grounds of alleged misconduct without due process of
law. Moreover, the function of the respondents’
hearings was to adjudicate allegations of serious
misconduct on the part of the prisoners.71 Therefore,
both parties had an equal interest in ensuring that the
70In some respects, the consequences of respondents’ transfers
may be more serious than those flowing from the loss of good
time or from solitary confinement. Good time may be restored to
the inmate in the future while the stigma associated with an
intrastate transfer based on allegations of misconduct will be
permanent, regardless of the subsequent exemplary behavior of the
inmate. Also, solitary confinement is usually of limited duration.
See M.G.L.A. Ch. 127, sec. 40 (1975 ed.) However, this is not the
case when an inmate is transferred to more restrictive conditions,
for he may remain there indefinitely.
71 See Brief For Respondents, pp. 2-4.138
51
decisions to transfer had been reached fairly and on the
basis of accurate and reliable information.72 Richardson
v. Perales, 402 U.S. 389, 401-402 (1971); Gagnon v.
Scarpelli, 411 U.S. 778, 785 (1973); R obbins v.
Kleindienst, 383 F. Supp. 239, 247-248 (D.D.C. 1974).
A hearing in this context would be far from an empty
form and would prod prison officials to live up to their
obligations to review the facts impartially. The state has
an interest similar to the inmate’s in ensuring reliable
and accurate information, an interest acknowledged by
the petitioners in the instant case when they afforded
prisoners a “hearing” to inquire into the allegations of
misconduct.73
P̂etitioners recognize this interest as well when they
acknowledge that the state’s concern in the security of its
institutions cannot be served by transfers based on “arbitrary or
capricious information.” (Pet. Br. 33). Petitioners assert,
however, that the requirement of accuracy is satisfied by the
good faith of prison officials. (Pet. Br. 23). However, “a
conclusion [that] satisfies one’s private conscience does not
[necessarily] attest to its reliability.” Joint Anti-Fascist R efugee
C om m ittee v. McGrath, supra, 341 U.S. 123, 171 (1951). Errors
may also have unintentional origins. See, Sirico, Prisoner
Classification and Administrative Decisionmaking, 50 Texas L.
Rev. 1229, 1242-1243 (1972). Good intentions on the part of
prison administrators do not obviate the need for due process.
Cf. In re Winship, 397 U.S. 358, 365-366 (1970).
As one observer of prisons has noted, abdication to the “good
faith” of prison administrators has unfortunate consequences:
The elusive goal of rehabilitation spawns decisionmakers
desirous of unfettered discretion ot tinker with the
prisoners’ fates. Secure in the knowledge o f their own good
faith, they o ften do n ot appreciate their ability to err,
becom e indifferent to the awesom e pow er they wield, and
fa il to recognize the responsibility placed on them by the
lack o f checks on their discretion. Sirico, supra at
1239-1240.
Ŝee note 72, supra. 139
52
In light of these considerations and of the balance
already struck in W olff, petitioners are required to
provide minimal due process protections unless they can
demonstrate that legitimate penal objectives justify
further limitations in the instant case.
Numerous interests are asserted by petitioners and
amicus for not requiring transfer hearings. However,
many of these interests have already been accom
modated by the balance struck in W olff. The others are
not appropriate for consideration on the record before
this Court since the respondents’ transfers were based
on allegations of serious prior misconduct.
1. Security needs, avoidance of “tensions” and rehabili
tation.
Petitioners and the Solicitor General argue that
security needs, rehabilitation and the avoidance of
“ tensions” necessitate a summary transfer process.
However, the Court in W olff accommodated these
interests in requiring minimal due process protections
for disciplinary proceedings in the unremitting tension
of a maximum security prison. W olff v. M cD onnell, 418
U.S. 539, 562 (1974). Petitioners and amicus have not
pointed to anything in the medium security environ
ment of Norfolk which prevented them from con
ducting hearings for respondents on the allegations of
prior misconduct. Vague, generalized notions of prison
security, unsupported by the present record, should not
be sufficient to tip the careful balance struck by Wolff.
Moreover, contrary to their position, [Pet. Br. at
24-25] [S.G. Montanye 42-45],74 the results of careful
T̂he Am icus relies primarily on the case of Braxton v.
140 Carlson, 483 F.2d 933 (3rd Cir. 1973) [S.G. Montanye at 43],
which was decided before W olff v. M cDonnell, 418 U.S. 539
(1974).
53
investigations into prison decisionmaking prove that a
reduction in tensions obtains from fair procedures in
prisons. See e.g., Note, Bargaining in Correctional
Institutions: R estructuring The R elation B etw een The
Inm ate and The Prison A u th ority , 81 Yale L.J. 726
(1972); D. Glaser, E ffectiveness o f a Prison and Parole
System 87 (Abridged ed. 1969); The President’s
Com m ission on Law E nforcem ent and Adm inistration
o f Justice: C orrections 83 (1967). Indeed, it is likely
that tensions would be exacerbated by an unexplained
decision or, as in the instant case, by a ritualistic,
Kafkaesque process, rather than by the provision of a
hearing, for in the former situations, the prisoner can
only assume that prison officials acted arbitrarily and
unreasonably. See Catalano v. United States, 383 F.
Supp. 346, 351 (D. Conn. 1974). See also C lonce v.
Richardson, 379 F. Supp. 338, 351 (W.D. Mo. 1974).
Finally, both national commissions which have
recently studied prisons have concluded that rehabilita
tion is not furthered by “authoritarian control” [S.G.
Br. Montanye at 26] 75 but by procedures which avoid
reactions to arbitrariness by maximizing an inmate’s
participation in decisions which affect his life. Presi
d en t ’s Com m ission on Law E nforcem ent and Adm inis
tration o f Justice: C orrections 13, 82-84 (1967);
National A dvisory Com m ission on Criminal Justice
Standards and Goals: Corrections 55 (1973). See also,
75A careful reading of Glaser, The Effectiveness o f a Prison
and Parole System 122-123 (1969) and Olilin, M odification o f
the Criminal Value System, in The S ociology o f Punishment and
Correction (1962), which are cited by amicus fS.G. Montanye at
26], supports a position contrary to that asserted by the Solicitor
General. Both authors stress the need for fairness in proceedings
and closer inmate-staff relationships as a means of ensuring
rehabilitation of the prisoner. 141
54
I). Fogel, We A re The Living P roof: The Justice M odel
o f C orrections 204-208 (1975); Fox, Why Prisoners
R iot, 35 Fed. Prob. 9 (1971); Note, Bargaining In
Correctional Institutions: Restructuring The Relation
B etw een The Inm ate and the Prison A u th ority , 81 Yale
Law Journal 726 (1974); Cf. Palmigiano v. Baxter, 487
F.2d 1280, 1283 (1st Cir. 1973); Landman v. P eyton ,
370 F.2d 135, 141 (4th Cir.) cert, den., 385 U.S. 881
(1966).76
2. The “Emergency” Justification
The petitioners and amicus argue that the require
ment of a hearing would prevent prison officials from
dealing with emergencies. The record in this case,
however, belies this contention, for the petitioners were
able to handle adequately a perceived emergency by
segregating the respondents (App. 55-56) and by still
affording them a “ hearing” prior to their transfers. The
appropriateness of the “ emergency” justification should
await a record that suggests that prison officials were
prevented by an emergency from providing any hearings
for inmates charged with past misconduct.
In addition, this Court had already recognized that
there are “ extraordinary situations where some valid
governmental interest is at stake that justifies post
poning the hearing until after the event.” Boddie v.
C onnecticut, 401 U.S. 371, 379 (1971). See also. La
Batt v. T w om ey, 513 F.2d 641, 645-646 (7th Cir.
76Prison officials in Massachusetts also recognize the close
relationship between rehabilitation and fair proceedings. Com
missioner’s Bulletin 72-1 describes the policy of the disciplinary
rules as follows: “These rules are promulgated in the belief that a
142 speedy and fair adjudication o f alleged wrong-doing coupled with
meaningful sanctions contributes to the maintenance o f security
and the rehabilitation o f the r e s i d e n t(App. 109) (emphasis
supplied)
55
1975); Goss v. Lopez, 419 U.S. 565 (1975); Gomes v.
Travisono, 490 F.2d 1209, 1215 (1st Cir. 1973) vacated
and remanded sub nom. Travisono v. Gomes, 418 U.S.
909 for reconsideration in light of Wolff v. McDonnell,
opinion on reconsideration after remand 510 F.2d 537
(1st Cir. 1974); Hoitt v. Vitek, 361 F. Supp. 1238, 1253
(D. N.H. 1973), aff’d 497 F.2d 598, 600 (1st Cir. 1974).
Consequently, in emergency situations, prison
officials would still be able to postpone whatever
procedures are required. See Gomes v. Travisono, 510
F.2d 537, 539 (1st Cir. 1974); La Batt v. Twomey, 513
F.2d 641, 645-646 (7th Cir. 1975). The “ emergency”
doctrine, rather than the wholesale authorization of
summary transfers, reflects an appropriate concern for
the pressures on prison authorities without sacrificing
the inmate’s rights to procedural fairness.77
3. The asserted need to make discretionary decisions
Petitioners repeatedly assert that the question of
transfer should be left to the sound discretion of prison
officials (Pet. Br. 26, 27, 28, 33).
However, the record again does not support
petitioners’ argument. Petitioners are unable to point to
anything in the present record that would suggest that
their discretion was limited in the instant case by the
77However, the necessary due process protections should be
provided “as soon as practicable” after the transfer. Goss v.
Lopez, supra, 419 U.S. 565, 582-583 (1975). See also H oitt v.
Vitek, 497 F.2d 598, 600 (1st Cir. 1974) (unreviewable
discretion of prison officials in what they view to be an
emergency is not open ended or time limited).
143
56
provision of hearings for the respondents prior to their
transfers. Moreover, the nature of the hearings afforded
the respondents does not support petitioners’ general
assertion that transfer proceedings involve broad
discretionary considerations; indeed the very opposite
appears to be the case, for the record reflects that the
decisions to transfer respondents were based on
adjudications of allegations of the prisoners’ prior
misconduct.78
Furthermore, regardless of the circumstances, “ (a)
simple factual hearing will not interfere with the
78Petitioners find support for their argument in Judge
Campbell’s dissent in Fano v. Meachum, where he concludes that
summary transfers are warranted:
(A)dministrative realities may sometime necessitate the
flexibility to transfer even on the basis of demonstrably
inadequate information .... A forty percent risk that an
inmate will disrupt or set a fire may in some circumstances
be too great to take. (App. 153)
However, this dictum in the dissenting opinion overstates the
issue in the present case, for the respondents do not question the
adequacy of the information relied on by the petitioners, but
instead, challenge the failure of the petitioners to provide the
prisoners with adequate notice of this information or with any
meaningful opportunity to be heard when charges of prior
misconduct are being considered. The question of whether a
prison official can act on “demonstrably inadequate information”
should await a proper record before this Court.
Also, the discretion of prison officials is not unfettered. The
touchstone of due process is the protection of the individual
from the arbitrary action of government, W olff v. M cDonnell,
418 U.S. 539, 558 (1974). Due process is a qualitative concept,
not a quantitative one that depends on the percentage of error of
a decision maker. Therefore, the quantum of information
available to a prison official is not the relevant consideration;
prison officials still retain the flexibility to act upon limited
information as long as they “act fairly.” W olff v, M cDonnell, 418
U.S. 539, 565 (1974).144
57
exercise of discretion.” Morrissey v. Brewer, 408 U.S.
471, 483 (1972); Gagnon v. Scarpelli, 411 U.S. 778,
785 (1973); Robbins v. Kleindienst, 383 F. Supp. 239,
246-247 (D.D.C. 1974). See also, E. Kimball and D.
Newman, Judicial Intervention in Correctional Decisions
- Threat and Response, 14 Crime and Delinquency 1, 9
(1968). Once factual matters are verified, erroneous
information is corrected, and other relevant data is
obtained from the inmate, there would be little room
to challenge the considered, good faith exercise of
discretion, unless the determination was arbitrary and
capricious in the circumstances. Cf. Ferrell v. Huffman,
350 F. Supp. 164 (E.D. Va. 1972). Thus, the discretion
of correctional officials would not be impinged upon by
affording prisoners a hearing, and the opportunity for
reliable and successful decisions would be more likely.
4. The Asserted Unsuitability of the Issues For
Resolution
Petitioners (Pet. Br. at 25) and amicus [S. G.
Montanye at 45, 46] assert that transfer decisions raise
issues that are unsuitable for the provision of minimal
due process protections since transfers may involve
determinations of predictive behavior, the appropri
ateness or availability of rehabilitative programs or
other administrative concerns. However, regardless of
the validity of this contention in other circumstances, it
lacks any substance in the present record since the
respondents’ hearings focused solely on allegations of
past misconduct. Petitioners could hardly argue that
these issues were unsuitable for determination at a
hearing, for they conducted such hearings on these
allegations in the instant case. Moreover, lower federal 145
58
court decisions since Wolff have repeatedly recognized
the need for due process procedures, even when the
transfers were not triggered by a specific act of
misconduct, but were based on assessments of prior
conduct, Carlo v. Gunter, 520 F.2d 1293 (1st Cir.
1975); Robbins v. Kleindienst, 383 F. Supp. 239
(D.D.C. 1974); Catalano v. United States, 383 F. Supp.
346 (D. Conn. 1974); Clones v. Richardson, 379 F.
Supp. 338 (W.D. Mo. 1974). These cases realistically
conclude that nearly all prison decisions which have
adverse consequences for the inmate, regardless of the
purported purposes, involve determinations of past
conduct where facts might be in dispute or in error.
Finally, as the amicus concedes, transfer hearing
always involve factual issues [S.G. Br. 17]; therefore, a
hearing would still be necessary for the appropriate
resolution of the issues at hand. In the instant case, the
controverted facts are obvious since the respondents
were charged with allegations of prior misbehavior. In
the other situations suggested by petitioners, past
conduct may still be at issue and may form an
important aspect of the transfer decision; therefore, the
need for inmate involvement to resolve disputed facts,
correct erroneous information or verify information in
the file is no less compelling. The hearing would also
provide the inmate with a brief opportunity to present
reasons to the decisionmaker why he should not be
transferred to a closer custody status and to call
extenuating circumstances to the attention of the
Board. Prison officials cannot plausibly claim to know
so many facts about each inmate, that there is no
146
59
information that the inmate could possibly contribute
that would influence a transfer decision.79
Consequently, the record before this Court fails to
support any of the justifications suggested by
petitioners for failing to afford the respondents the
minimal requisites of due process.80
În a few situations, such as overcrowding, where objective
conditions or facts extrinsic to the inmate’s prior conduct leave
little room for question, a hearing may not be necessary as long
as the inmate is afforded an adequate opportunity to respond to
the transfer decision. Presumably, the inmate, if informed of the
objective, non-arbitrary character of the decision, would waive
his hearing. G om es v. Travisono, 510 F.2d 527, 541 (1st Cir.
1975). If the prisoner is not afforded a hearing, however, the
record should clearly demonstrate that his prior conduct did not
play any role in the transfer decision. See R osenberg v. Preiser,
388 F. Supp. 639 (S.D. N.Y. 1975).
P̂etitioners’ argument that these hearings would be
administratively burdensome is equally unpersuasive. First, the
record in this case fails to support this assertion, for the
petitioners did conduct hearings on the allegations of
respondents’ prior misconduct.
Second, available statistical evidence does not suggest that
such hearings would impose a greater burden upon petitioners
than disciplinary hearings. During 1973, the Federal Government
alone conducted 19,000 misconduct hearings. W olff v.
M cDonnell, 418 U.S. 539, 574 (1974). In the instant case the
Solicitor General states that the number of medium to maximum
security transfers only numbered about 1,200 in fiscal year 1975
(S.G. Br. at 3). Tlrere are no transfer figures for Massachusetts
cited by the petitioners; however, it is safe to assume that the
proportions are similar. Since procedural safeguards are offered in
the area of prison discipline, which involves a substantially
greater number of cases, the petitioners could hardly assert that
it would be burdensome to provide transfer hearings.
147
60
B. The Hearings Provided The Prisoners Did Not
Comply With The Minimal Requirements of
the Due Process Clause.
1. Respondents Were Entitled To A Sufficiently Detailed
Notice To Allow Them To Prepare Adequately for
The Hearings.
In Wolff v. McDonnell, 418 U.S. 539 (1974), this
Court held that the minimum requirements of pro
cedural due process entitle a prisoner to “ advance
written notice of the claimed violation,” 418 U.S. 539,
563 (1974). At a minimum, the notice must “ inform
[the inmate] of the charges and . . . enable him to
marshal the facts and prepare a defense.” Wolff v.
McDonnell, 418 U.S. 539, 564 (1974) [brackets
supplied]; Goldberg v. Kelly, 397 U.S. 254, 267-268.
Thus a primary function of this notice is “ to clarify
what the charges are, in fact.” Id. at 564. Without
sufficient notice, it is doubtful that the prisoner could
“benefit from any hearing that was provided.” Friendly,
Some Kind o f Hearing, 123 U. Penn. L. Rev. 1267,
1281 (1975). See also, Morgan v. United States, 304
U.S. 1, 3-4 (1938). In the present context, this notice
should at least inform the inmate of the reasons why he
may be transferred and apprise him of the underlying
facts or adverse information which may be considered.
See Almanza v. Oliver, 368 F. Supp. 981, 986 (E.D.
Va. 1973); Catalano v. United States, 383 F. Supp.
346, 352 (D. Conn. 1974).
However, the notice to respondents in this case
provided none of this vital information and failed to
perform the requisite functions.81 Rather than clarify
81 The sufficiency of notice is challenged in this case, not the
timing of the notice. The prisoners were notified several days in
148 advance of the hearings and, in light of the serious allegations of
misconduct, notice at that time was required.
61
the charges of serious misconduct, it obfuscated them.
As the district court recognized, the notice did not even
state the time and place of the alleged offense with
reasonable accuracy (App. 137, 152). There was no
indication of where the alleged violations had occurred,
who had participated in them, when they had taken
place, or what “ instruments” had been possessed. Such
notice certainly was insufficient to inform adequately
the respondents of the charges against them and to
enable them to prepare an appropriate defense.
The “hearings” demonstrate the utter inadequacy of
the notices. Since respondents had no relevant informa
tion about the charges, the only plausible defense
available to them was to make bald assertions that they
were not involved in the alleged misconduct (App. 71,
75, 81-82, 94-95, 100, 105), or to introduce general
information about their character or reputation (App.
70, 99, 105). The respondents were left to grope in the
dark for some evidence, some statement that would
convince the skeptical board of their position.82
Absent adequate notice, the pitfalls for the unwary
or innocent are obvious: their denials of involvement in
specific incidents can be interpreted as evidence of
participation (App. 100). It is hardly surprising that the
guilty individual may be in a better position in such
circumstances because his knowledge of specifics might
enable him to contrive a credible explanation for his
conduct. In addition, inmates were unable to prepare
necessary defenses to the allegations of misconduct. For
example, Dussault and DeBrosky were charged with
possessions of instruments or materials that might be
used as “ weapons” (App. 39, 40, 64). However, had the
82See Brief for Respondents, p. 4, note 6.
149
62
inmates known of the particular “ instruments” or
“ materials” in question, they might have demonstrated
that the “ weapons” were used for institutional trades
rather than for any illegal purposes (App. 70, 72, 94).
The hearings, for the most part, focused on irrelevant
matters as the prisoners struggled to impress the Board
with the reasons as the prisoners struggled to impress
the Board with the reasons why they should stay at
Norfolk.83 However, the Board treated the information
presented by the inmates as immaterial because the
relevant inquiry had already been concluded by the
time respondents and counsel were invited to reenter
the hearing room.84 The hearing was, therefore, an
exercise in futility for the inmate whose feeble efforts
underscored the functional inadequacy of the notice.
See also, Greene v. McElroy, 360 U.S. 474, 496-497
(1959); Sostre v. McGinnis, 442 F.2d 178, 198 (2nd
Cir. 1971). The procedures so proudly touted by the
petitioners [Pet. Br. at 6-7] only provided formal,
ritualistic trappings for a “ secret one-sided determina
tion of facts decisive of rights.” Joint Anti-Fascist
Refugee Committee v. McGrath, 341 U.S. 123, 170
(1951) (Frankfurter, J. concurring). See also Morgan v.
United States 304 U.S. 1 (1938).
83See Brief for Respondents, p. 4, note 6.
MIn at least one case, the inmate, upon entering the room,
was informed by the Board that it had already concluded that
the informant information was reliable before affording the
prisoner any opportunity to be heard (App. 59).
150
63
2. The Respondents Were Entitled In The Particular
Circumstances Of The Present Case To A Summary Of
The Informant Information To Ensure A Meaningful
Opportunity To Be Heard Prior To Their Transfers.
Petitioners assert that they were not constitutionally
required to provide the respondents with a summary of
the in camera informant information which formed the
basis of the board’s decisions because its disclosure
“ would . . . seriously compromise the physical safety of
the informants.” (Pet. Br. at 30). Petitioners’ con
tention reflects a misunderstanding of the limited scope
of the Court of Appeals’ decision which merely applied
traditional notions of due process to the actions ol
prison officials.
Contrary to the broad assertions of the petitioners,
the requirement of a summary of informant informa
tion in the specific circumstances of this case adds
nothing to what is already required by Wolff. As the
Court of Appeals stated, one of the minimal require
ments in a prison hearing is a “ written statement as to
the evidence relied on and the reasons for the
disciplinary action” (App. 150). In view of this
requirement, the limited issue raised by the instant
record is whether there is any constitutional difference
between providing the inmate, subsequent to the
hearing, with a statement of the evidence relied on to
support the allegation of misconduct and supply the
identical information to the prisoner at the hearing.
Petitioners have not suggested, however, that such a
constitutional distinction could be maintained nor can
they point to anything in the record that would justify
such a finespun analysis. Instead, petitioners assert a
blanket right to refuse to provide a summary of the
informant information. Since petitioners’ position im-
151
64
pinges directly on the fundamental rights to a written
statement and to a meaningful opportunity to be heard,
it must be carefully analyzed. The Court of Appeals
recognized that the present case only involved a limited
inquiry because Institutional Order 4310.1, which is the
product of correctional expertise in Massachusetts,
provides a source of guidance for the appropriate
procedures to be followed by prison officials in these
circumstances (App. 151). This order requires that a
summary of informant information be supplied to
inmates in internal prison proceedings where allegations
of major misconduct are at stake and where serious
sanctions, including transfers, may be imposed (App.
117) .85
Thus, state prison officials in Massachusetts have
established a standard of due process governing the
present circumstances and have already determined that
the provision of a summary of informant information is 85
85This order represents a balance between the need for
informant information in the prison context and the realistic
recognition of the unreliability of this information. Numerous
commentators have concluded that prison informants are
unreliable, for self-interest, revenge or other venal motives may
generate their information. Therefore, they are prone to
fabrications, inaccuracies, or exaggerations. G. Sykes, The S ociety
o f Captives, 87-89 (Princeton University Press); McCorkle and
Korn, “Resocialization Within Walls”, Annals of American
Academy of Political and Social Science, 293: 88-89 (May,
1954); Wilmer, The R o le o f The “R a t” In The Prison, 29 Fed.
Probation 44-45 (March, 1965). The fact that I.O. 4310.1 was in
effect at Walpole at the time of respondents’ hearings cannot
shield petitioners from their constitutional obligations, for
petitioner Hall, the Commissioner of Correction, is charged with
notice of its contents and with ensuring that the Constitution is
not ignored in state prisons (App. 136).
152
65
not unduly burdensome or unworkable in the prison
context. See Wolff v. McDonnell, 418 U.S. 539, 569
(1974); Palmigiano v. Baxter, 487 F.2d 1280, 1286
(1973). Therefore, the only consideration in the present
set of circumstances was whether petitioners were able
to justify their failure to provide similar protections to
inmates at Norfolk.86 However, petitioners were unable
to point to any evidence in the record to justify such a
failure. The district court and Court of Appeals gave
short shrift to the vague notions of “ prison security”
postulated by petitioners, for these arguments are
significantly undercut by the fact that the procedures
were being followed at Walpole. If petitioners could
have supplied some other reason unique to the security
of Norfolk, a medium security prison, which would
have justified more stringent procedures for the use of
informant information than those followed at maximum
security prisons, they certainly would have done so.
The Court of Appeals, therefore, recognized that, in the
present case, petitioners could not provide any
justification for the substantial encroachments on the
minimal procedures guaranteed by Wolff (App. 151-52).
Petitioners contend, however, that Wolff sanctions
their failure to provide a summary of the informant
information and rely upon the dictum of the Court that
there “ may be . . . occasions when personal or institu
tional safety are so implicated, that the statement [of
evidence and reasons] may properly exclude certain
items of evidence.” Wolff v. McDonnell, 418 U.S. 539,
565 (1975) (emphasis supplied). Besides ignoring the
thrust of the Court of Appeals’ decision, the petitioners
misconstrue the import of this Court’s language. The
86See note 9, supra.
153
66
limited exception articulated in Wolff, which may
permit the exclusion of particular items of evidence,
does not mean that all items in the statement may
properly be eliminated, nor does it permit the petitioners
to transform the opportunity to be heard into a hollow rit
ual. Cf. Gonzalez v. United States, 304 U.S. 1 (1938). See
also, Friendly, Some Kind o f Hearing, 123 U. Penn. L. Rev.
1267, 1283 (1975). The discretion of prison officials in
these circumstances has been sharply circumscribed,
since the “ written statement” is necessary to meet “ the
minimum requirements of procedural due process,”
Wolff v. McDonnell, 418 U.S. 539, 563 (1974). Their
discretion is even more limited in the present
circumstances because the petitioners have already
promulgated a regulation which provides for the release
of a summary of informant information.
The Court of Appeals appropriately realized that, in
light of these limitations on the discretion of prison
officials in Massachusetts, petitioners’ could not merely
assert, without justification, that none of the informa
tion could have been supplied to the respondents at
their hearings. Moreover, the petitioners did not
demonstrate on the record how “personal safety” or
“ institutional safety” would have been implicated by
the release of something less than the entire summary
which, at the very least, would have apprised the
inmate of the time, place and nature of the charges.
Thus, the Court of Appeals was eminently correct in its
recognition that the failure of the petitioners to release
the summary of the allegations of misconduct was not
only fundamentally unfair but also permitted a limited
exception to swallow up the constitutional rule.
154
CONCLUSION
67
The respondents’ transfers to substantially more
adverse conditions of confinement on the basis of
allegations of misconduct resulted in significant changes
in their freedom of movement and substantially limited
their involvement in important rehabilitative programs.
The notation in their files only exacerbated these
immediate deprivations and affixed a permanent stigma
on their reputations within the prison community.
Furthermore, respondents had a legitimate claim of
entitlement to the various rights, benefits and op
portunities associated with incarceration at Norfolk, a
medium security institution, and their transfer to
maximum security prisons impinged on this funda
mental property interest. Finally, as respondents have
argued, the application of the Due Process Clause to the
transfer of respondents to more adverse conditions of
confinement on the basis of allegations of misconduct
would prevent the swift demise ol the constitutional
rights so recently recognized in W olff Any of these
factors, standing alone, should compel the application
of the Due Process Clause to respondents’ transfers.
When combined, they highlight the overwhelming
reasons for ensuring that a prisoner who is transferred
to more adverse conditions of confinement on the basis
of misbehavior is afforded the protections of the Due
Process Clause.
The determination of what process is due in the
present circumstances involves a balancing of the
interests of the inmate in avoiding a summary transfer
and of the interests of correctional officials in the
pursuit of legitimate correctional goals. In the instant
case, this inquiry is not very broad, tor the interests
asserted by the petitioners have either been accom- 155
68
modated by the balance struck in W olff or lack any
evidentiary support in the record before this Court.
Therefore, those minimal due process procedures which
are afforded in prison disciplinary hearings to ensure
reliable and accurate adjudications of allegations of
misconduct should be required. Respondents do not
seek a trial-type proceeding; they merely contend that
adequate notice, a meaningful opportunity to be heard
and a written statement of the evidence relied on in
reaching the decision is fundamentally fair in the
present circumstances.
The petitioners, however, seek complete immunity
from these procedural requirements, despite the fact
that respondents’ hearings involved determinations of
allegations of past misconduct. The devastating implica
tions of the petitioners’ position are clearly illustrated
by the present record. The petitioners rely on W olff v.
M cD onnell, a decision that articulated the minimal
requirements of due process in internal prison hearings,
to justify notices that did not even apprise the inmates
of the time and place of the alleged misconduct,
hearings that did not provide the inmate with any
opportunity to rebut the charges of misbehavior, and
written statements that do not contain any reference to
the evidence relied upon. The discretion afforded prison
officials does not permit them to redraw so cavalierly
the iron curtain between the prisons of this country
and our Constitution.
156
69
For all of the reasons mentioned in the Brief, the
respondents submit that the judgment of the Court of
Appeals for the First Circuit should be affirmed.
Respectfully Submitted:
RICHARD SHAPIRO
Prisoners’ Rights Project
294 Washington Street
Room 638
Boston, Massachusetts 02108
ANNE HOFFMAN
Prisoners’ Rights Project
294 Washington Street
Room 638
Boston, Massachusetts 02108
(617) 482-2773
157
No. 75-252
Hn % Itapratt? (Emtrt of % Mnxtvb £>tatwi
October Term , 1975
Larry Meachum , et a l ., petitioners
v.
A rthur Fano , et a l .
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIRST CIRCUIT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
R obert H . B o r k ,
Solicitor General,
R ic h a r d L . T h o r n bu r g h ,
Assistant Attorney General,
F r a n k H . E asterbroo k ,
Assistant to the Solicitor General,
Jerom e M. F e it ,
Ja m e s A . R o t h s c h il d ,
Attorneys,
Department of Justice,
Washington, D.C. 20530.
159
I N D E X
Page
Question p resen ted _____________________________ 1
Interest o f the United S tates_________________ 2
S ta tem en t_______________________________________ 3
Introduction and sum m ary o f argum ent _____ 11
A rgum ent _______________________________________ 19
The Due Process Clause does not require
notice and opportunity fo r hearing on the
propriety -o f a transfer o f a prisoner be
tween institutions o f different security
classification s______________________________ 19
A . A transfer to closer custody does not
deprive a prisoner o f “ liberty” or
“ property” ------------------- 19
B. The fa ct that a transfer m ay later be
taken into account in m aking a deci
sion whether to release an inmate
does not mean that the transfer it
self involves “ liberty” or “ property” ,, 26
C on clu sion ______________________________________ 30
C ITA TIO N S
C ases:
Arnett v. Kennedy, 416 U.S. 1 3 4 ------------ 13
Board of Regents v. New Left Education
Project, 404 U.S. 5 4 1 ---------------------------- 8
Board of Regents v. Roth, 408 U.S. 564., 20, 25
Cardaropoli v. Norton, 523 F .2d 990------- 25
Carlo v. Gunter, 520 F .2d 1293 ------------- 24
Clay v. Henderson, 524 F .2d 9 2 1 ------------ 13, 24
Daigle v. Hall, 387 F . Supp. 6 5 2 ------------ 9
161
n
Cases— Continued Page
Gagnon v. Scarpelli, 411 U.S. 7 7 8 ________ 7
Geneva Towers Tenants Organization v.
Federated Mortgage Investors, 504 F.
2d 483 ___________________________________ 26
Gilmore v. Lynch, 400 F .2d 228, certio
rari denied, 393 U.S. 1 0 9 2 _____________ 8
Goldberg v. Kelly, 397 U.S. 254 _________ 25
Goss v. Lopez, 419 U.S. 565 ______________ 20, 25
Graham v. State Department of Correc
tion, 392 F. Supp. 1262 ____________ __ 24
Holland v. Ciccone, 386 F .2d 825, certio
rari denied, 390 U.S. 1045 ___________ 24
Lokey v. Richardson, C .A. 9, No. 74-1256,
decided Decem ber 6, 1975 _____________ 24
McCarty v. Woodson, 465 F .2d 822--------- 8
Montanye v. Haymes, No. 74-520, certio
rari granted, 422 U.S. 1055--------- 2 ,1 1 ,1 2 ,1 5 ,
21, 24
Moore v. Attorney General, 473 F .2d
1375 _____________________________________ 24
Morrissey v. Brewer, 408 U.S. 4 7 1 ______ 7, 28
Oklahoma Natural Gas Co. v. Russell, 261
U.S. 290 _________________________________ 8
Pell v. Procunier, 417 U.S. 8 1 7 __________ 7
Perry v. Sindermann, 408 U.S. 5 9 3 _____ 21
Phillips y . United States, 312 U.S. 246— 8
Procunier v. Martinez, 416 U.S. 396------- 7
Raper v. Lucey, 488 F .2d 7 4 8 ____________ 26
Sands v. Wainwright, 491 F .2d 417, cer
tiorari denied sub nom. Guajardo v.
Estelle, 416 U.S. 992 _________________ 7 ,8
Schumate v. People of the State of New
York, 373 F. Supp. 1 1 6 6 ______________ 24
162
Cases— Continued Page
Scott v. Kentucky Parole Board, No. 74-
6438, certiorari granted, Decem ber 15,
1975 ______________________________________ 27
Sostre v. McGinnis, 442 F .2d 178, certio
rari denied sub nom. Sostre v. Oswald,
404 U.S. 1049 __________________________ 22
Weinstein v. Bradford, No. 74-1287, va
cated as moot, December 10, 1975____ 27
Wolff v. McDonnell, 418 U.S. 539.__.8, 9 ,1 0 ,1 5 ,
20, 21, 23, 24, 25, 28, 29
Constitution, statutes, and regulation:
United States Constitution:
Sixth A m endm ent____________________ 6
Eighth A m endm ent__________________ 12
Fourteenth A m endm ent______________ 6
18 U.S.C. 4081 ________________________ 24
18 U.S.C. 4 0 8 2 (b ) ____________________ 24
18 U.S.C. 4161 _______________________ 24
18 U.S.C. 4165 ______________-____________ 24
28 U.S.C. 2281 _______________________ 7
42 U.S.C. 1983 ________________________ 6
28 C .F .R . 2.13 ________________________ 28
M iscellaneous:
Bureau o f Prisons Policy Statement No.
7400.5D (1975) _____ 22
Com m issioner’s Bulletin 7 2 -1 -------------------- 7
Currie, The Three-Judge District Court
in Constitutional Litigation, 32 U. Chi.
L. Rev. 1 (1964) ______________________ 8
Departm ental Order 4400.1 ----------- ------ — 7
Institution Order 4310 -------------- 9
1X1
163
3u % B>uprmp (Eourt o f % f la ir s
October Term , 1975
No. 75-252
Larry Meachum , et al ., petitioners
v.
A rthur Fano , et a l .
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIRST CIRCUIT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
QUESTION PRESENTED
The United States will address the question
whether the Due Process Clause requires notice and
opportunity fo r hearing on the propriety o f a trans
fer o f a prisoner between prisons o f different security
classifications.1
1 We do not discuss the question whether, if the Due Process
Clause applies, the particular procedures followed by the state
officials in this case were adequate. Nor do we discuss the
court of appeals’ argument (Pet. App. 35-36) that the Equal
(1)
165
2
INTEREST OF THE UNITED STATES
Like Montanye v. Haymes, No. 74-520, certiorari
granted, 422 U.S. 1055, the instant case presents
questions regarding the procedures prison officials
must follow when deciding to move inmates from
one place o f incarceration to another. Although this
case involves only the practices o f prisons in a single
state, the Court’s decision m ay directly affect the
existing practices and procedures fo r management
and control o f prisoners in other prison systems, in
cluding the federal prison system. Our interest in this
case is sim ilar to that expressed at pages 1-4 o f our
brie f amicus curiae in Montanye.2
U nlike Montanye, this case involves transfers be
tween institutions o f different custody levels. The
United States has a particular interest in that ele
ment o f the case because, unlike some States, the fed
eral governm ent m aintains a prison system in which
prisoners are confined at various levels o f custody
according to the nature o f the offense committed, the
character and mental condition o f the prisoner, and
the prisoner’s discipline, care, and treatm ent needs.
Federal prisons are broadly divided into minimum,
Protection Clause requires administrators to use identical
procedures in all prisons. As to the latter, however, we observe
that if the court of appeals were correct, it would be impos
sible to experiment with different procedures in different
prisons in order to analyze the effects of each; every prisoner
would acquire an entitlement to the most favorable procedure
in effect at any prison, and experimentation and change would
be discouraged.
2 We are furnishing the parties’ counsel with copies of that
brief.
166
3
medium, and m axim um security institutions; other
prisons serve special populations such as youthful
offenders and narcotics addicts.
D uring fiscal year 1975, 518 inmates in the federal
prison system w ere transferred from m edium secur
ity institutions to maxim um security institutions, and
621 inmates were transferred from minimum secur
ity prisons to medium or m axim um security institu
tions. N um erous prisoners also were transferred
w ithin a single prison to different w ork and rehabili
tative program s; m any o f these latter transfers re
sulted in consequences to the inmate sim ilar to those
that would occur as a result o f transfers between in
stitutions o f different security classifications.3
STATEMENT
1. Between A ugust 13, 1974, and October 23, 1974,
nine serious fire s4 were set in the M assachusetts Cor
rectional Institution at N orfolk , a medium security
institution. Prison officials received inform ation from
3 Each institution has within it different degrees of that
custody level: close, medium, and minimum. “Close custody”
usually entails restriction to the prison’s security perimeter;
“medium custody” means that the inmate may work outside
the security perimeter under direct supervision; “minimum
custody” means that the inmate may work outside of the
security perimeter under periodic checks. A prisoner in mini
mum custody at a maximum security institution may there
fore enjoy conditions less restrictive than those imposed upon
a prisoner in close custody at a medium security institution.
4 Firemen from outside the prison had to be summoned to
extinguish the fires.
167
4
inform ants that certain inmates were responsible fo r
the fires and fo r other disturbances in the prison.
Those inmates, including respondents, were taken
from the general population and placed in the Re
ceiving Building, an adm inistrative detention area
used to process new inmates.5 6
On October 25, 1974, each respondent w as given a
disciplinary report setting forth the reasons fo r his
removal from the general population.6 On November
4, 1974, each respondent w as given notice o f an im
pending classification hearing. The notice stated :
(1 ) that fo llow ing the classification hearing a recom
mendation concerning the inm ate’s institutional
status or transfer w ould be m ade; (2 ) that the in
mate would be confined in “ an aw aiting action area”
pending the hearing; and (3 ) that inform ation had
been received accusing the inmate o f certain illegal
activities. Some prisoners were accused o f possessing
weapons or ammunition, others with involvement in
the planning and execution o f one or more o f the
serious fires, and still others with trafficking in nar
cotics (Pet. App. 18, 2 4 ).
Individual classification hearings were held fo r the
respondents in early November. Each respondent was
5 The facts of this statement are taken from the opinion of
the district court (Pet. App. 16-20). The facts stated by the
court were taken from a pretrial stipulation.
a The offenses charged were referred to the local district
attorney for possible prosecution. In conformity with Massa
chusetts prison regulations no disciplinary proceedings were
held. See Pet. App. 29, n. 1.
168
5
represented by counsel. The classification board
opened each hearing by reading a prepared statement.
The respondent w as then ordered to leave the room
while the board heard the inform ants’ testimony, re
layed by petitioner Superintendent L arry Meachum,
a fter which the respondent was brought back into the
room and inform ed that the inform ants’ testim ony
supported the charges contained in the notice. The
respondent was allowed to present evidence on his
own behalf, and each denied involvement in the par
ticular in fraction charged. Several respondents also
presented testim ony and w ritten statements on their
behalf from corrections officers. The board also heard
testim ony from each respondent’s social worker.
The board recommended that respondent Royce be
placed in adm inistrative segregation fo r 30 days, a f
ter which a second classification hearing would be
held. The board recommended that respondents Fano,
Dussault, and McPherson be transfered to W alpole, a
maximum security prison, and that respondents De-
Brosky and H athaway be transferred to Bridgewater,
a prison with both maximum and medium security
sections. Respondents were not given a w ritten state
ment o f the board ’s reasons or o f the evidence on
which the board relied. They were orally inform ed
that the recommendations were based upon in form a
tion provided by inform ants. The inform ation was
not disclosed even in sum m ary form , nor were the
names o f the inform ants provided.
The board ’s recommendations were reviewed per
sonally by petitioner W illiam Dawber, then A cting
169
&
Deputy Commissioner fo r Classification and Treat-,
ment, and by petitioner Frank Hall, Commissioner o f
Corrections. The board’s recom m endations as to re
spondents Fano, Dussault, Hathaway, and M cPher
son w ere accepted. Respondent D eBrosky w as ordered
to be transferred to W alpole instead o f Bridgewater.
Respondent Royce w as ordered to be transferred to
W alpole instead o f being placed in adm inistrative
segregation.
Respondents were not subjected to disciplinary pun
ishment upon arrival at their new prisons. They
suffered neither loss o f good time nor confinement in
disciplinary segregation.
2. On Decem ber 12, 1974, respondents filed an
amended com pla in t7 in the United States D istrict
Court fo r the D istrict o f Massachusetts. It named
as defendants Superintendent Meachum, Commis
sioner Hall, and A cting D eputy Commissioner Dawber,
individually and in their official capacity. The com
plaint, brought under 42 U.S.C. 1983, charged that
petitioners had violated the Constitution by placing
respondents in segregation cells w ithout prior notice
7 On November 4, 1974, a civil rights action under 42 U.S.C.
1983 had been filed by 17 inmates at Norfolk. The complaint
contended that plaintiffs’ removal from the general population
at Norfolk and their placement in administrative detention
constituted punishment without due process of law and vio
lated their rights under the Sixth and Fourteenth Amend
ments. The inmates sought a declaratory judgment, an order
requiring Superintendent Meachum to' return them to the
general prison population, expungement from their records
of any disciplinary reports, and punitive and compensatory
damages.
170
7
and by transferring them to other institutions as
punishment w ithout adequate notice and hearing.8
Respondents each sought $1,000 com pensatory and
$10,000 punitive damages, declaratory relief, and
an injunction requiring petitioners to return them
to N orfolk until more extensive hearings had been
held.8
8 Respondents sought to represent the class of all others
similarly situated, but the district court declined to certify
the case as a class action. Pet. App. 17.
8 There is a substantial question whether this case is
properly before the Court. The prisoners’ civil rights action
contended that procedures in effect throughout the Massa
chusetts prison system are unconstitutional. The amended
complaint specifically attacked the adequacy of Departmental
Order 4400.1. The district court also apparently concluded
that Commissioner’s Bulletin 82-1, which establishes proce
dures to be used before disciplinary boards, is defective be
cause it extends those procedures to disciplinary segregation
but not to transfers (Pet. App. 23).
Constitutional challenges seeking injunctions against state
regulations of statewide applicability must be heard by district
courts of three judges. 28 U.S.C. 2281. Many of the in-prison
due process cases that have been considered by this Court
have been heard on appeal from a three-judge district court.
See, e.g., Pell V. Procunier, 417 U.S. 817; Procunier V. Mar
tinez, 416 U.S. 396. (Other cases, such as Morrissey v. Brewer,
408 U.S. 471, and Gagnon V. Scarpelli, 411 U.S. 778, arose in
habeas corpus-, no injunction was sought.) In an exhaustive
discussion of the applicability of Section 2281 to due process
challenges to prison conditions and regulations, the Fifth
Circuit has unanimously held en banc that in situations of this
sort a three-judge court must be convened. See Sands V.
Wainwright, 491 F.2d 417, certiorari denied sub now,. Guajar
do V. Estelle, 416 U.S. 992. Even if the practices under attack
are “permitted” rather than “compelled” by the existing reg-
171
8
The district court held that petitioners’ transfers
exposed them to conditions o f confinement sign if
icantly less advantageous than those they had en
joyed at N orfolk (Pet. App. 2 0 ) . Concluding that the
transfers were essentially disciplinary in nature
(ibid.), the court held that petitioners were required
to furnish respondents with pre-transfer hearings
sim ilar to those required by this Court (see Wolff v.
McDonnell, 418 U.S. 539) fo r loss o f good time
credits accumulated under state law. The district
court found that those procedures had not been ob
served here: (1 ) respondents were not given a sum-
ulations, a three-judge court still would appear to be required.
See Sands V. Wainwright, supra, 491 F.2d at 427-429; Gilmore
V. Lynch, 400 F.2d 228 (C.A. 9), certiorari denied, 393 U.S.
1092; McCarty V. Woodson, 465 F.2d 822 (C.A. 10). Cf.
Oklahoma Natural Gas Co. V. Russell, 261 U.S. 290, 292. But
cf. Phillips V. United States, 312 U.S. 246. See generally Cur
rie, The Three-Judge District Court in Constitutional Litiga
tion, 32 U. Chi. L. Rev. 1 (1964).
It may be that the practices followed in respondents’ trans
fer hearings in Norfolk are not followed statewide. If that is
so, a three-judge court would be unnecessary. Wolff V. McDon
nell, 418 U.S. 539, 542, n. 1; Board of Regents V. New Left
Education Project, 404 U.S. 541. The fact that institutions
such as Walpole have adopted supplemental procedures for
use by disciplinary (but not necessarily classification) boards
(see Pet. App. 20-23, 35-36) may indicate the lack of a uni
form statewide practice. On the other hand, the fact that the
State’s commissioner of corrections considers an appeal from
a transfer decision in any prison may indicate that the prac
tice is statewide. Neither the district court nor the court of
appeals passed upon this matter.
However that may be, we do not pursue the questions fur
ther, for the federal government has no independent interest
in their resolution.
172
9
m ary o f the inform ation provided by the inform ants
and relied upon by the classification board; and (2 )
respondents were not given a pre-hearing description
o f the nature o f the alleged in fractions adequate to
allow them to prepare a defense.10
The district court entered a “ prelim inary order”
directing petitioners to return respondents to the gen
eral population at N orfolk until they had been ac
corded a hearing in conform ity with regulations then
in force fo r disciplinary hearings at W alpole (Pet.
App. 2 3 ) . Petitioners also w ere ordered to prom ul
gate regulations, to be reviewed by the court, estab
lishing procedures that would govern future transfer
hearings involving inform ant testim ony11 (ibid,).
10 Superintendent Meaehum stated in an affidavit (Pet.
App. 26) that giving respondents a more detailed description
would have created a substantial risk of revealing the identity
of the informants and would have placed their lives in danger.
Meaehum further stated that no fires had been set after the
removal of respondents and others from the general popula
tion at Norfolk, and that he believed that if respondents were
returned to the general population at Norfolk there would be
a very great risk of further disruption.
11 The court’s order required these regulations to; conform
with existing regulations at Walpole and with the order of the
court in Daigle V. Hall, 387 F. Supp. 652 (D. Mass.). The
Walpole regulations, also known as Institution Order 4310,
require that if testimony is taken in the prisoner’s absence
before a disciplinary board (but not a classification board),
then the presiding officer must give the inmate a summary
of the information in question and state the board’s reason for
such protective action (Pet. App. 21). In Daigle, the court
held that before an inmate could receive a classification that
resulted in an adverse change in conditions of confinement he
must receive a Wolff-type hearing.
173
10
The district court scheduled a fu ture hearing on the
claim fo r dam ages and on the various claim s o f eleven
other plaintiffs.
3. A divided court o f appeals affirmed (Pet. App.
28 -41 ). It held that transfers from medium to m axi
mum security institutions involve such “ significant
m odification o f the overall conditions o f confinement”
as to affect “ the ‘liberty ’ protected by the Fourteenth
Am endm ent” (Pet. App. 34) and therefore that pris
oners m ay not be deprived o f their interests in re
m aining in a particular prison w ithout due process
o f law.
Turn ing to the question o f w hat process is due, the
court held that hearings should be sim ilar to those
required by Wolff v. McDonnell, supra, fo r loss o f
good time. U nder that standard the hearings given
respondents were held to be defective. The court
rejected petitioners’ argum ent that the inform ants’
inform ation had been withheld to protect the in form
ants ; it observed that because the State provides such
inform ation fo r disciplinary hearings at W alpole, it
cannot “ even in the exercise o f the discretion recog
nized in Wolff” deny sim ilar procedures to those im
prisoned at N orfolk (Pet. App. 3 6 ).
Judge Campbell dissented (Pet. App. 37 -41 ), dis
agreeing with the m ajority ’s conclusion that prison
transfers affect a “ liberty” or “ property” interest o f
an inmate. In Judge Campbell’ s view, changes in con
ditions o f confinement, such as those involved here,
do not im plicate “ liberties” o f a prisoner but “ fall
w ithin the state’s general right to confine, safeguard,
174
11
and rehabilitate” (Pet. A pp. 3 9 ) , and since prisoners
have no legitim ate claim o f entitlement to remain in a
prison where they have been placed, proceedings lead
ing to their transfer need not com ply w ith the Due
Process Clause.
INTRODUCTION AND SUMMARY OF ARGUMENT
This case should be controlled by the same prin
ciples that, w e have argued, govern Montanye v.
Haymes, No. 74-520, certiorari granted, 422 U.S.
1055. Both cases present the question whether the
Due Process Clause applies to the transfer o f a pris
oner from one place o f incarceration to another.
Here, unlike the case in Montanye, respondents were
transferred to institutions where they would be placed
in closer custody. In our view, this distinction does
not call fo r a different result. Our argum ent that
the Due Process Clause requires no notice or hearing
on the propriety o f a disciplinary transfer is set forth
in our b rie f in Montanye, and w e summarize it here.
W e then discuss the differences between this case and
Montanye.
1. The Due Process Clause applies only in those
circum stances in which governm ental action deprives
an individual o f “ liberty” or “ property.” Thus an
evaluation o f respondents’ claim m ust begin with an
inquiry into whether respondents were deprived o f
liberty or property. This inquiry does not turn, as
the court o f appeals held, on the gravity o f the de
privation, but rather looks to the characteristics o f
the asserted interest.
175
12
Rem oving a prisoner from a prison into which he
has been placed does not deprive him o f liberty.12 He
w as deprived o f his liberty upon conviction, sentence,
and incarceration. The very fa ct o f his conviction fo r
a crime, and the legitim ate placem ent o f his person
into the hands o f a custodian who w ill be responsible
fo r his safekeeping and the supervision o f the most
intim ate details o f his life, extinguishes any liberty
interest he m ay possess in selecting his place o f resi
dence. The prisoner therefore is not deprived o f his
liberty by being moved from one prison to another.
The Constitution does not create a liberty interest
in being free o f the potentially less advantageous cir
cumstances o f a different prison, even i f the differ
ence amounts to “ grievous loss.” The conviction and
authorized incarceration o f any person entitles his
custodian to expose him to at least that range o f cus
todial conditions reasonably anticipated by the judge
pronouncing the sentence, so long as those conditions
do not independently violate the E ighth Amendment.
Certainly a prisoner has an “ interest” in rem aining
in a prison the conditions o f which he prefers to those
o f some alternative prison. But that interest is not
constitutionally cognizable as a “ liberty” interest. The
loose constellation o f constitutionally based values that
underlies the analysis o f claim s o f “ liberty” does not
pertain to the day-to-day living conditions o f persons
law fu lly confined. A prisoner’s interests relating to
the identity or physical location o f his place o f con
12 An expanded version of this argument appears at pages
14-30 of our brief in Montanye.
176
IB
finement are founded not on constitutional concepts
o f liberty but on the statutes, regulations, and rules
that govern the term s and conditions o f his confine
ment. H is interests are no m ore expansive than those
established by such statutes, regulations, and rules,
and are more closely related to “ property” than to
“ liberty.”
This Court’ s decisions make clear that a legitimate
claim o f entitlement under a statute, regulation, or
rule w arranting the procedural protections o f due
process exists only when the State has bound itself
to take, or refra in from taking, specified actions on
the basis o f determinable facts. A s Mr. Justice W hite
noted in his concurring and dissenting opinion in
Arnett v. Kennedy, 416 U.S. 134, 181:
W here Executive discretion is not limited,
there is no need fo r a hearing. In the latter
event, where the statute has provided * * * no
conditions at all, * * * no hearing is required.
It is likewise clear that a legitimate claim o f entitle
ment arises only from positive law and not from the
individual’ s unilateral expectations.
U nder Massachusetts (and federal) law, the deci
sion where to confine a prisoner is completely discre
tionary.13 N o set o f facts respondents could prove or
attempt to prove would entitle them to remain in an
institution where they had tem porarily been placed.
13 The Bureau of Prisons “possesses the absolute authority,
absent a showing of abuse of discretion, to designate the place
of a prisoner’s confinement and to administer transfer mat
ters.” Clay v. Henderson, 524 F.2d 921, 924 (C.A. 5).
177
14
Even i f a prisoner were able to prove, in connection
with a proposed disciplinary transfer, that he was
innocent o f any in fraction o f the prison ’s rules, prison
officials still w ould retain discretionary authority to
effect the transfer. Because decisions concerning in
stitutional placement are not governed by any particu
lar controvertible facts but instead are discretionary,
respondents could under no circum stances have a
legitim ate claim o f entitlement either to remain in
one prison or to be moved to another. A ccordingly,
respondents have no constitutionally protected liberty
or property interest in the place o f their confine
m ent; respondents’ only “ interest” is a hope or ex
pectation to be confined in whatever prison he deems
most advantageous to him self. But the Constitution
does not require that any particular procedures be
used before a State acts to disappoint an individual’ s
unilateral expectations.
N or does any constitutionally protected interest
arise from the mere fa ct that a prisoner’s transfer
m ay be m otivated by disciplinary considerations.
W here “ punishment” does not amount to a depriva
tion o f constitutionally protected liberty or property,
the procedural protections o f due process do not apply.
2. Even when a prisoner has been deprived o f a
liberty or property interest, it is necessary to examine
all interests at stake in order to determine how much
“ process” is due. W e submit that even i f a prisoner’s
transfer from one place o f incarceration to another
does implicate his liberty or property, the Court
should hold that procedures less form al than notice
178
15
and opportunity fo r personal hearing are adequate
to accommodate the legitim ate interests o f the prisr
oner and the com peting interests o f prison adm inis
tration.14
I f it were reasonably feasible to distinguish be
tween a disciplinary transfer and a nondiseiplinary
or adm inistrative transfer, it m ight be appropriate to
strike the constitutional balance by providing the
same procedural protections that are currently pro
vided in connection with punitive sanctions such as
loss o f good time. See Wolff v. McDonnell, 418 U.S.
539. But disciplinary and adm inistrative “ reasons”
are inextricably intertwined in most transfer deci
sions; a conscientious prison adm inistrator, seeking
to place a prisoner in the institution m ost likely to
provide a satisfactory m ixture o f confinement, pun
ishment, and rehabilitative opportunities, w ill o f
course consider the prisoner’s record o f behavior and
com pliance with prison rules. A distinction between
disciplinary and adm inistrative transfers therefore
would be difficult to draw in practice, and even more
difficult fo r the jud iciary to adm inister on a case-by-
case, post hoc basis, fo r in almost every prisoner’s
record there w ill be some incident upon which he
could base a colorable claim that the transfer w as in
tended to punish him. In short order, prison officials
could well be compelled to adopt uniform and elab
orate procedures fo r all transfers in order to m ini
14 An expanded version of this argument appears at pages
30-47 of our brief in Montanye.
179
16
mize disputes and litigation and preserve a semblance
o f order in decision-m aking. That result would, we
believe, be most unfortunate, fo r there are compelling
reasons, applicable to both adm inistrative and dis
cip linary transfers, fo r allow ing such decisions to be
made inform ally.
The range o f reasons fo r which an inmate m ay be
transferred is quite broad. These include the initial
classification decision to transfer an inmate to an
institution apparently most suitable fo r the inm ate;
placement in an institution nearer the offender’s re
lease point; placement in an institution more appro
priate to the length o f time rem aining to be served;
placement in an institution containing more appro
priate train ing or medical facilities ; rem oval from
an institution to which adjustm ent has been poor;
transfers to reduce excessive population or increase
deficient population; and removal fo r the safety of
the transferred inmate or other inmates. M any of
these causes fo r transfer do not turn upon objective
inm ate-specific fa cts o f the sort most appropriate to
trial-type determination. Some o f them require only
the determ ination o f “ legislative” facts with regard
to which the inmate could offer little o f importance.
Others m ay offer appropriate occasions fo r entertain
ing the inm ate’s views, but these m ay be obtained
w ithout a form al adversarial hearing in every case.
Other transfers are made because o f suspicions that
are incapable o f objective p roof in the particular
case but nevertheless ju stify action.
180
17
O f course, even in m any o f the foregoin g categories,
inm ate-specific fa cts m ay to some extent be relevant
to the transfer decision, and hearings would on occa
sion operate to prevent a transfer prom pted in part
by a mistaken view as to those facts. But it is the
judgm ent o f prison authorities that the institutional
costs o f providing procedures to reduce the risks o f
mistakes o f this sort outweigh the benefits to be de
rived from such procedures.
Provision o f a trial-type hearing on every transfer
occasion does not necessarily increase the w elfare o f
prisoners as a group. It has been contended with some
cogency that converting the relationship between the
inmate and his custodian into a form ally “ adver
sarial” one m ay interfere with the rehabilitative goal
o f these institutions and make prison life more acri
m onious than is otherwise necessary. N otice o f the
transfer m ay increase the probability that inmates,
disappointed by the prospect and despairing o f their
ability to prevent it, m ay act violently tow ard their
custodians or other inmates.
W hat is more, to the extent a hearing w ill operate
to keep w ithin a particular prison one who otherwise
would leave, it also w ill keep out o f the presum ably
“ more desirable” institution one who otherwise would
gain en try : one inmate’s gain is another’s loss.
F inally, even when a specific disciplinary infraction
is alleged, the hearing could not usefully explore the
wisdom o f m aking a transfer decision, fo r adm inis
trators retain discretion to transfer despite the lack
o f transgression. Accordingly, w e submit, the Due
181
18
Process Clause should not be held to require notice
and opportunity fo r a hearing when prison adminis
trators do no m ore than allocate their charges to
whatever prison, and fo r whatever constitutionally
permissible reason, the adm inistrators deem best fo r
the prisoner and the prison system.
3. A ll o f these argum ents apply as well to trans
fers to m ore secure institutions. A prisoner is “ de
prived” only o f the conditions he enjoyed prior to the
transfer. I f those conditions are not liberty or prop
erty, the Due Process Clause does not apply. Neither
the court o f appeals nor respondent has suggested
any method by which the identity or security classi
fication o f the transferee prison can influence whether
petitioner had a legitim ate claim o f entitlement to
remain where he w as once housed.
The court o f appeals thought that a “ liberty” inter
est w as established because respondents w ere exposed
to closer custody in the receiving prisons than at N or
folk . This confuses the inquiry into “ grievous loss”
(w hich is measured by the extent o f the change in
conditions) w ith the question whether the prisoner
had a legitimate claim o f entitlement to what was
taken away. Only i f he has such a claim is it neces
sary to address the subsidiary “ grievous loss” ques
tion.
4. N or is our analysis affected by the fa ct that
transfers to maxim um security institutions m ay a f
fect the likelihood o f respondents’ being granted
parole. A n inm ate’s desire to be paroled in the future
is itself neither liberty nor property, and therefore
182
19
the Due Process Clause does not apply to events that
m ay disappoint the inm ate’s expectations.
ARGUMENT
THE DUE PROCESS CLAUSE DOES NOT REQUIRE
NOTICE AND OPPORTUNITY FOR HEARING ON
THE PROPRIETY OF A TRANSFER OF A PRISONER
BETWEEN INSTITUTIONS OF DIFFERENT SECUR
ITY CLASSIFICATIONS
B. A Transfer to Closer Custody Does Not Deprive a
Prisoner of “Liberty” or “Property”
The foundation fo r the holding o f the court o f ap
peals that transfers, between institutions o f different
security classifications require procedural due process
is its observation (Pet. App. 34) that such transfers
involve “ not a simple loss o f privileges * * * but a
significant m odification o f the overall conditions o f
confinement.” The court held that respondents had
been deprived o f “ liberty” because (Pet. App. 32)
“ the detriment worked by an intrastate transfer from
a m edium -security institution to a m axim um -security
prison is seriotis enough to trigger the application o f
due process protections” (emphasis added).
W e subm it that the court, o f appeals has confused
the two inquiries essential in due process cases: first,
whether a liberty or property interest is involved, and,
second, whether the deprivation amounts to “ grievous
loss.” The court o f appeals appears to have believed
that all deprivations involving a serious or grievous
loss must, fo r that reason, affect a “ liberty” interest.
That is incorrect. “ [T ]o determine whether due proe-
183
20
ess requirements apply in the first place, w e m ust look
not to the ‘w eight’ but to the nature o f the interest
at stake.” Board of Regents v. Roth, 408 U.S, 564,
570-571 (em phasis in orig in a l). See also Goss v.
Lopez, 419 U.S. 565, 572-576.
The “nature o f the interest at stake” is the same
regardless o f the destination o f the transferred pris
oner. He has been “ deprived” o f the conditions pre
vailing in the place where he used to be confined.
That deprivation is the same whether he is trans
ferred to another prison o f the same security level
or to a prison using greater security precautions. The
amount o f loss is greater in the latter case, but the
nature o f the loss is the same. F or that reason, the
presence or absence o f a “ liberty” interest in a con
tinuation o f residence at the old institution m ust be
determined w ithout regard to the identity o f the re
ceiving institution.
The test invoked by the court o f appeals— “ a sign if
icant m odification o f the overall conditions o f con
finement” — w as derived from a footnote in Wolff v.
McDonnell, supra, 418 U.S. at 571-572, n. 19. That
footnote compared the effects o f deprivation o f good
tim e w ith those o f imposition o f solitary confinement.
The Court concluded from this com parison that be
cause solitary confinement “ represents a m ajor
change in the conditions o f confinement and is nor
m ally imposed only when it is claimed and proved
that there has been a m ajor act o f m isconduct”
(ibid.), the Constitution would require the same m ini
184
21
mum procedural safeguards as are required fo r loss
o f good time. But the source o f the prisoner’s interest
in avoiding solitary confinement w as that the State
had bound itself by regulations and a course o f prac
tice (a s in Perry v. Sindermann, 408 U.S. 593) to
impose solitary confinement only on account o f mis
conduct. That practice created a legitimate claim o f
entitlement and, because imposition o f solitary con
finement would also create “ grievous loss,” minimum
procedural protections were required.
The basis fo r a sim ilar conclusion is lacking here—
neither Massachusetts nor the federal governm ent has
bound itself by statute, rule, or settled course o f prac
tice to transfer a prisoner only because o f misbe
havior. Indeed, the contrary is the case. M ost trans
fers w ithin the federal system are fo r adm inistrative
rather than disciplinary reasons (see Montanye Br.
2-3, 38 -41 ). A prisoner therefore has no reasonable
expectation, and therefore no legitimate claim o f en
titlement, to rem ain in a particular prison unless and
until he violates prison rules. Indeed, in this case the
transfers o f respondents appear to have been based
upon “ suspicion” rather than upon facts “ proved”
according to judicial standards. A s w e argued in
Montanye (B r. 40-41, 45 -47 ), the ability to make
transfers “ on suspicion” is a necessary part o f the
powers o f prison administrators.
In the absence o f some legitimate claim o f entitle
ment on the inmate’ s part to remain in a particular
prison, he has no liberty interest in doing so. The
footnote discussion o f solitary confinement in Wolff
185
22
is consistent w ith this analysis and does not support
the judgm ent o f the court o f appeals.15
15 What is more, solitary confinement is radically unlike the
normal confinement conditions in which a prisoner is placed.
Its basic ingredient is isolation from human contact, an isola
tion that affects an inmate psychologically as well as physi
cally. Sostre V. McGinnis, 442 F.2d 178, 190 (C.A. 2), cer
tiorari denied sub nom. Sostre V. Oswald, 404 U.S. 1049. An
inmate sent to solitary confinement usually cannot acquire
good time, cannot possess property, cannot participate in any
prison programs, is closely supervised, and his movement is
curtailed. Solitary confinement thus produces a loss of free
dom apart from that taken away by incarceration in general,
in even the most secure institutions. In the federal system, an
inmate can be placed disciplinary segregation (the federal
equivalent of solitary confinement) only if he poses a serious
threat to life, property, himself, staff, other inmates, or the
security of the institution. Bureau of Prisons Policy Statement
No. 7400.5D (1975). In view of the nature of solitary con
finement it could be argued that it is so great a change
in the quality of life, beyond whatever conditions were au
thorized by the original judgment of conviction, that it pro
duces a loss of “liberty” even if there is no rule or settled
course of practice reserving its use for prisoners who have
violated the institution’s rules.
Prison transfers to maximum security institutions do not
implicate interests of similar magnitude. The major difference
between medium and maximum security institutions in the
federal prison system is in size and security. Most maximum
security institutions are large and walled-in, while most medi
um security institutions are smaller and fenced-in. Housing in
maximum security prisons is generally in multiple occupancy
cell houses, although housing can also be in open dormitories
and individual cells. Housing at medium security prisons
varies considerably, both within and among institutions.
Inmates may be housed in open dormitories, multiple occu
pancy cubicles, cells, or dormitory rooms.
A large percentage of inmates at maximum security insti
tutions are confined in “close custody” , while at medium
security institutions a greater percentage of inmates are con-
186
23
Just as no “ liberty” interest is im plicated in the
transfer o f prisoners between prisons o f different se
curity levels, so a prisoner has no “ property” in
terest in rem aining in a particular place or a par
ticular condition o f confinement.
The court o f appeals suggested (Pet. App. 34, n.
6 ) that the creation o f a prison system containing
institutions with divergent conditions o f confinement
is sim ilar to the creation by the State o f the good
tim e credits involved in Wolff. W e disagree. In
Wolff the State had created by statute an entitlement
to good time and had specified that good time was
to be forfe ited only fo r serious misbehavior. The
creation o f a prison system w ith institutions o f
various security classification is not analogous, be
cause the State has not ordained any fa cts or set o f
facts that will entitle the prisoner to be placed in,
fined in “medium custody” or “minimum custody” . Both types
of institutions have inmates in all three custody levels. Maxi
mum security institutions usually house older adults, those
who have longer sentences, or those convicted of more serious
offenses—that is, inmates who may be considered greater
security risks.
In the federal system both types of institutions have an
extensive range of programs available to inmates, including
educational, vocational, recreational, group and individual
counseling, and prison industries. In maximum security
prisons the programs are more oriented to industrial work. A
large percentage of the inmates in both types of federal insti
tutions participate in these programs.
While transfers between institutions of different security
levels thus may involve some changes in conditions of con
finement, they do not occasion the type of changes in condi
tions of confinement created by solitary confinement.
187
24
or to rem ain in, a particu lar institution. A good
tim e credit system creates entitlements vesting in the
inm ate; the entitlements are revocable only when
certain events come to pass. See 18 U.S.C. 4161 and
4165. A diversified system o f penal institutions, on the
other hand, is established so that the State can best
attain its en ds: incarceration, confinement, deterrence
and ( i f possible) rehabilitation. Unless such a system
is created with the provision that inmates are to be
incarcerated at a specific level o f custody and are not
to be transferred except on the basis o f certain deter
minable facts, no property right or legitim ate claim
o f entitlement is created.16
The federal governm ent has created no such claim
o f entitlement to a specific place or condition o f
confinement. The governing federal statutes (18
U.S.C. 4081 and 4 0 8 2 ( b ) ) expressly grant federal
prison officials fu ll discretion over the placement and
tran sfer o f prisoners. See Clay v. Henderson, 524
F .2d 921, 924 (C .A . 5 ) ; Moore v. Attorney General,
473 F .2d 1375 (C .A . 5 ) ; Holland v. Ciccone, 386
F .2d 825 (C .A . 8 ) , certiorari denied, 390 U.S. 1045.
Congress has specifically declared that, fo r federal
16 A number of courts have held that any change in the level
of custody, even within an institution, must be preceded by
a full Wolff-type hearing. See Lokey V. Richardson, C.A. 9,
No. 74-1256, decided December 6, 1975; Carlo V. Gunter, 520
F.2d 1293 (C.A. 1); Graham v. State Department of Correc
tion, 392 F. Supp. 1262 (W.D.N.C.); Schumate V. People of
the State of New York, 373 F. Supp. 1166 (S.D.N.Y.). For
the reasons discussed in the text and in our brief in Montayne,
we submit that these cases were incorrectly decided.
188
25
prisoners, transfers shall not be conditioned on any
particu lar set o f facts. This, in short, is not a case
like Wolff “ where the procedural protections o f the
Due Process Clause were triggered by official can
cellation o f a prisoner’s good-tim e credits accumulated
under state law, although those benefits were not
m andated by the Constitution.” Goss v. Lopez, supra,
419 U.S. at 573 (em phasis a d ded ).17
17 At least one court of appeals has rejected an argument
similar to the one we have made here, holding that it “attempts
to resurrect the now-discredited right-privilege dichotomy as
an analytical approach to due process * * Cardaropoli v.
Norton, 523 F.2d 990, 995, n. 11 (C.A. 2). We submit that
this characterization misconceives the thrust of our argument.
Under the right-privilege distinction, benefits created by
substantive constitutional guarantees were “rights,” and
those created by statute were “privileges” subject to unfet
tered governmental control. A State could defend a claim that
it had denied due process of law by answering that, because
the State was not constitutionally required to give the benefit
in question to anyone, plaintiff could not complain that he had
not received it, no matter how arbitrary the State’s decision
and no matter what sort of discrimination the State may have
practiced. Thus, even entitlements founded on statutory guar
antees were not enforceable in practice.
The question whether there is a “ liberty” or “property”
interest—an inquiry established by the Constitution itself-—
is quite different. This Court held in Both, supra, that “prop
erty” interests are founded only upon statutes, rules, or settled
course of practice. The question in a case of this sort, there
fore, is whether any statute, rule, or practice has created for
the prisoner a legitimate claim of entitlement contingent upon
specific facts. If it has done so, the Due Process Clause applies
even though the entitlement may be a “privilege” that could be
revoked at any time by altering the rules that created the en
titlement. For example, one deprived of welfare is protected
by the Due Process Clause. Goldberg v. Kelly, 397 U.S. 254.
And if a State provides that any individual who is “unem
189
26
B. The Fact That a Transfer May Later Be Taken Into
Account in Making a Decision Whether to Release
an Inmate Does Not Mean That the Transfer Itself
Involves “Liberty” or “Property”
A s a separate ground fo r its holding that a trans
fe r deprives a prisoner o f “ liberty,” the court o f
appeals observed that prison transfers may affect
the likelihood o f parole. This was based on an agree
ment reached by the parties that “ determination [s ] to
transfer P laintiffs, and the basis therefore, w ill be
noted on their institutional record and w ill be con
sidered by the Parole Board * * *” (Pet. App. 3 3 ).
W e submit, to the contrary, that the fa ct that trans
fers m ay be considered in m aking parole determ ina
ployed” shall be entitled to receive unemployment compensa
tion, the expectation of benefits would be a property interest,
because benefits would be contingent upon provable facts.
An applicant for unemployment benefits therefore would be
entitled to due process of law. Cf. Geneva, Towers Tenants
Organization V. Federated Mortgage Investors, 504 F.2d 483,
495-496 (C.A. 9) (Hufstedler, J., dissenting); Raper v. Lucey,
488 F.2d 748 (C.A. 1) (application for a driver’s license).
(What process would be “due” in these cases would depend,
of course, upon the balance between the interests of the indi
vidual and those of the government.)
Under our argument, the applicability of the Due Process
Clause turns not upon the source of the rule arguably creating
a claim of entitlement, or upon the label attached to the claim,
but upon whether there is a legitimate claim of entitlement—
that is, whether any rule of law provides that inmate-specific
facts entitle an inmate to remain in a particular prison or to
defeat an attempt by his custodians to put him elsewhere.
The right-privilege dichotomy depended upon the source of
the rule in question; the inquiry into liberty or property looks
to the nature of the entitlement created, and to whether there
is a rule at all.
190
27
tions does not require that the transfer procedures
com port w ith due process.
1. A s w e argued in our b rie f amicus curiae in
Weinstein v. Bradford, No. 74-1287, vacated as moot,
December 10, 1975, a prisoner’s application fo r parole
does not im plicate the procedural protections o f the
Due Process Clause.18 W hile a prisoner has an “ in
terest” in being released on parole, that interest is
neither “ liberty” nor “ property” until the release
actually takes place. P rior to that time, the prisoner’s
desire to be released on parole is no m ore than a
unilateral expectation on his part.
Denial o f an application fo r parole does not de
prive a prisoner o f liberty. A prisoner is deprived
o f his liberty, fo r the fu ll term o f his sentence, upon
conviction and incarceration. The prisoner who ap
plies fo r parole stands in no danger o f losing liberty;
to the contrary, liberty is what he seeks. A n adverse
decision w ill merely continue him in his constitu
tionally valid confinement.
N or does a prisoner have a property interest in
parole, unless a State has made parole determinations
that turn on certain determinable facts. W here parole
is based on discretionary action (a s it is in the federal
system ) no set o f facts a prisoner could prove or
18 Copies of our brief in Weinstein are being- furnished to
the parties. The Solicitor General has authorized the filing of
a brief as amicus curiae in Scott V. Kentucky Parole Board,
No. 74-6438, certiorari granted, December 15, 1975, which
presents the Weinstein issue.
191
28
attempt to prove w ould entitle him to parole. In
such a situation there can be no legitim ate claim o f
entitlement to be released on parole.
Since an application fo r parole therefore can be
denied w ithout a fu ll hearing, it is perm issible fo r
the parole board to consider inform ation generated
without a fu ll hearing.
2. Even i f the Due Process Clause applies to the
parole application process, prison transfers could
be considered by a parole board whether or not the
transfer decision had been made a fter a Wolff-type
hearing. I f the Due Process Clause applies to parole
release decisionmaking, a prisoner applying fo r pa
role would have a fu ll opportunity fo r an oral hear
ing and a right to a statement o f reasons fo r the
board ’s decisions. A t the hearing he could challenge
the propriety o f the transfer decision 19 or the weight
to be given to that decision.
U nder regulations now in effect, the United States
Board o f Parole grants an inmate a hearing on his
parole application. 28 C.F.R . 2.13 (1 9 7 5 ). The pris
oner is interviewed by the hearing officer and may
offer evidence in support o f his parole request. This
hearing gives an inmate the fu ll opportunity to ex
plain or challenge any transfer appearing on his
record. It is also the practice o f United States Board
19 We would argue, in an appropriate case, that a transfer
decision made after a full hearing is not open to reexamina
tion in a later parole hearing. Cf. Morrissey v. Brewer, suprav,
408 U.S. at 490. But this argument is inapplicable where the
prisoner was transferred without a hearing.
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o f Parole hearing officers fu lly to investigate transfers
before taking them into account in m aking their pa
role determinations. The Constitution plainly does not
require that facts that could influence parole be deter
mined tw ice a fter fu ll hearings; a single hearing
should suffice.
This argum ent is consistent with the usual prac
tice in parole release hearings. The parole board
receives and considers evidence from all sources and
o f all degrees o f reliability. The board considers
hearsay, docum entary evidence, and so on. The pris
oner then is free to challenge the accuracy or value
o f that evidence and to present contrary evidence.
The evidence is not inadmissible m erely because it
has been generated by procedures other than notice
and an opportunity fo r hearing.
3. Finally, even i f the possibility o f an adverse
effect upon parole applications is enough to indicate
that the transfer decision affects liberty or property,
it does not follow that the transfer itself is invalid
unless preceded by a Wolff-type hearing. It is pos
sible to elim inate the effect upon parole by expunging
a prisoner’s records. As Judge Campbell observed
(Pet. App. 4 1 ) , i f an adverse effect upon parole is the
constitutional harm to be avoided, the goal can be
achieved by forbidding “ the use o f the fa ct o f trans
fe r by the parole board unless the charges upon
which the transfer was based were established in a
m anner com porting with due process.” The trans
fers themselves, however, would not be open to at
tack. Therefore, even i f the potential effect upon
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80
parole means that the transfer hearings furnished
to respondents were inadequate, the court o f appeals
has selected the w rong remedy.
CONCLUSION
F or the foregoing reasons, the judgm ent o f the
court o f appeals should be reversed.
Respectfully submitted.
Robert H. Bork,
Solicitor General.
R ichard L. Thornburgh,
Assistant Attorney General.
Frank H. Easterbrook,
Assistant to the Solicitor General.
Jerome M. Feit,
James A. Rothschild,
Attorneys.
January 1976.
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