Wolff Jr. v. McDonnell Brief Amicus Curiae

    IN THE

Bxxgxtm (tart of tl?o llntfrii BtuteB
October Term, 1973

No. 73-679

CHARLES WOLFF, JR., et al,

vs.
Petitioners,

t

ROBERT 0. McDONNELL, et al.,

Respondents.

On Writ of Certiorari to the United States Court 
of Appeals for the Eighth Circuit

BRIEF OF THE LEGAL AID SOCIETY 
OF NEW YORK, AMICUS CURIAE

W illiam E. H ellerstein 
J oel B erger
W arren H. R ichmond, III 

The Legal Aid Society 
Prisoners’ Rights Project 

119 Fifth Avenue 
New York, New York 10003 

(212) 677-4224 
Counsel for Amicus Curiae



T A B L E  O F  C O N T E N T S

PAGE

Interest of Amicus ..........................................................  1

Summary of Argument ....................................................  3

Argument
The Due Process Clause of the Fourteenth 

Amendment requires that a prisoner be afforded 
basic procedural protection prior to the imposi­
tion of prison discipline ..........................................  4

Conclusion' .......................................................................... 28

TA B L E  O F A U T H O R IT IE S
Cases:

Alverez v. Turner, 422 F. 2d 214 (10th Cir. 1970)   11

Braxton v. Carlson, 483 F. 2d 933 (3rd Cir. 1973) ......10,14
Bundy v. Cannon, 328 F. Supp. 165 (D. Md. 1971) ....... 22

Carrington v. Bash. 380 U.S. 89 (1965) ......................  14
Cole v. Arkansas, 333 U.S, 196 (1948) ..........................  21
Colligan v. United States, 349 F. Supp. 1233 (E.D.

Mich. 1972) ................................................................ 26
Collins v. Schoonfield, 344 F. Supp. 257 (D. Md. 1972) 22

Davis v. Alaska,------ U.S. ——, 42 U.S.L. Week 4295
(February 27, 1974) ..................................................  23

Dodson v. Haugh, 473 F. 2d 689 (8th Cir. 1972) ......... 24

Gagnon v. Scarpelli, 411 U.S. 778 (1973) ................ 2, 25, 26
Gault, In re, 387 U.S. 1 (1967) ........................................ 11, 21
Goldberg v. Kelly, 397 U.S. 254 (1970) ..................6,14, 21,

22, 25, 27
Gonzalez v. United States, 348 U.S. 407 (1955) ........... 27
Greene v. McElroy. 360 U.S. 474 (1959) ......................  6, 22



Hannah, v. Larche, 363 U.S. 420' (1960) ........................  6
Harman v. Forssenins, 380 U.S. 528 (1965) ................  14
Hill v. Texas, 316 U.S. 400 (1942) ................................  14

Johnson v. Avery, 393 U.S. 483 (1969) ........................  5
Joint Anti-Fascist Refugee Committee v. McGrath,

341 U.S. 123 (1951) ..................................................  6, 28

Kostal v. Tinsley, 337 F. 2d 845 (10th Cir. 1964) ....... 4

Landman v. Peyton, 370 F. 2d 135 (4th Cir. 1966) ..... 20
Landman v. Royster, 333 F. Snpp. 621 (E.D. Va,

1971) ................................................................21,22,24,26

McCloskey v. Maryland, 337 F. 2d 72 (4th Cir. 1964) 4
McDonnell v. Wolff, 483 F. 2d 1059 (8th Cir. 1973) .... 14
Monks v. New Jersey State Board of Parole, 58 N.J.

238,277 A. 2d 193 (1971) ..........................................  27
Morrissey v. Brewer, 408 U.S. 471 (1972) .................. 2, 5,11

Newkirk v. Butler, 364 F. Supp. 497 (S.D.N.Y. 1973) 8
Nieves v. Oswald, 477 F. 2d 1109 (2d Cir. 1973) ....... 16

Palmigiano v. Baxter, 487 F. 2d 1280 (1st Cir. 1973) .... 5, 7,
12,14, 26

Powell v. Alabama, 287 U.S. 45 (1932) ..........................  25

SEC v. Chenery Corp., 318 U.S. 80 (1943) ..................  27
Shapiro v. Thompson, 394 U.S. 618 (1969) ..................  14
Sostre v. McGinnis, 442 F. 2d 178 (2d Cir. 1971) (en 

banc), cert, denied sub nom. Sostre v. Oswald,

X I

PAGE

U.S. ex rel. Miller v. Twomey, 479 F. 2d 701 (7th Cir.

U.S. ex rel. Neal v. Wolfe, 346 F. Supp. 569 (E.D. Pa. 
1972) ............................................................................ 24



I l l

Washington v. Lee, 263 F. Supp. 327 (M.D. Ala. 1966),
a ff ’d 390 U.S. 333 (1 9 6 8 )............................................. 5

W illner v. Committee on Character and Fitness, 373
U.S. 96 (1963) .............................................................  6

Wisconsin v. Constantineau, 400 U.S. 433 (1970) .......  6

Statutes and Regulations:

7 New York Code o f Rules and Regulations:
§1.10(a) ..........................................................................  9
Chapter V, pt. 253 .........................................................  16
§253.5 ..............................................................................  8
§253.5(a) (3) .................................................................. 9
§253.5 (a) (4) .................................................................. 9

Miscellaneous Authorities:

A B A  Resource Center for Correctional Law and Legal 
Services, Survey of Prison D isciplinary P rac­
tices and Procedures (April, 1974) .......................... 13

Bennett, I  Chose P rison (1970) ......................................  19
Feit, P rison Discipline and the I nmate Sense, of1

I njustice (1971) .........................................................  19
Fox, Why Prisoners Riot, 35 F ed. Prob. 9, 13 (March,

1971) ................................................................................  12
Coffman, A sylums (1961) ................................................. 7
Coldfarb and Singer, A fter Conviction (1973) .........  19
Jacob, Prison Discipline and Inmate’s Rights, 5 Harv.

Civ. R ts.— Civ. L ib. L. R ev. 227 (1970) ..................  23
Kansas Penal System, Inmate Disciplinary Proce­

dures (August, 1972) ................................................. 13
Millemann., Prison Disciplinary Hearings And Proce­

dural Due Process—The Requirement Of A Full 
Administrative Hearing, 31 Md. L. R ev. 27 
(1971) .............................................................................. 15,23

PAGE



N.Y. Dept, of Corr. Serv., Inmates’ Rule Book (Rev.
ed. 1968) ......................................................................  21

New Y ork State Special Commission on A ttica 
(“ McKay Commission” ), T he Official R eport
on A ttica (1972) ......................................................  19

President’s Commission on Law Enforcement and the 
Administration of Jnstice, Task F orce R eport:
Corrections (1967) .................................................. 12, 24

South Carolina Dept, of Corrections, T he E merging
R ights of the Confined (1972) ............................  15

Vermont Department of Corrections, Disciplinary
Regulations (July, 1972) ........................................ 13

Wright, T he P olitics of P unishment (1973) ........... 18
Zimbardo, I nterpersonal Dynamics in a Simulated 

P rison (1972) ............................................................ 2 0



IN TfECE

Bvcpnm (tart of % Intfrfr
October Term, 1973

No. 73-679

Charles W olff, J r., et al.,

vs.
Petitioners,

R obert 0 . M cDonnell, et al.,
Respondents.

On Writ of Certiorari to the United States Court 
of Appeals for the Eighth Circuit

BRIEF OF TH E LEGAL A ID  SOCIETY 
OF NEW  Y O R K , AMICUS CURIAE

Interest of Amicus*

The Legal Aid Society is a non-profit organization in­
corporated under the laws of the State of New York for 
the purpose of providing legal assistance to persons too 
poor to afford the services of legal counsel.

* Letters of consent have been obtained from respondents’ coun­
sel and the Attorney General of the State of Nebraska, and are on 
file with the Clerk of the Court.



2

In September, 1971, the Society established a special 
litigation unit, the Prisoners’ Eights Project, to protect 
the rights of prisoners in New York State. Since its in­
ception, the Project has represented prisoners in a sub­
stantial amount of prison reform litigation in both state 
and federal courts. Project attorneys frequently visit New 
York prisons and receive a vast quantity of correspondence 
from prisoners and parolees.

Based on the Project’s experience with New York’s 
correctional system, amicus believes that the procedures 
by which prison discipline is imposed are of the utmost 
concern to the inmate population. As will be established 
in this brief, prison disciplinary action can affect not only 
the nature but also the duration of a prisoner’s confinement. 
Accordingly, there is a critical need for sufficient proce­
dural safeguards at disciplinary hearings in order to insure 
the fair imposition of prison discipline.

The purpose of this brief is to assist respondents in 
persuading the Court that the Fourteenth Amendment re­
quires the same rudimentary procedural safeguards at 
prison disciplinary proceedings as were applied to parole 
revocation proceedings in Morrissey v. Brewer, 408 U.S. 
471 (1972) and Gagnon v. Scarpelli, 411 U.S. 778 (1973). 
In support of our constitutional argument we will en­
deavor to convey to the Court what we have learned from 
our involvement with the New York prison system—an 
involvement which has led us to conclude that the pro­
cedural protection afforded by Morrissey and Gagnon is 
necessary to protect the interests of both the inmate and 
prison administration.



3

Amicus will not discuss the other issues in this case 
as we have not experienced substantial difficulties in these 
areas in New York State. As to each of these issues, how­
ever, we fully support the position of respondents.

Summary o f  Argument

The Court has frequently recognized that only through 
the application of traditional due process safeguards is 
accurate fact-finding insured and arbitrary governmental 
action avoided. In recent years, it has been established 
beyond a doubt that prisoners, like all citizens, are entitled 
to the protection of the Due Process Clause. Accordingly, 
rudimentary procedural protection should be afforded pris­
oners prior to the imposition of prison discipline.

Disciplinary action can cause a prisoner “ grievous loss”  
by substantially altering both the nature and duration 
of his confinement. The prisoner’s interest in avoiding that 
loss outweighs any interest the prison administration 
has in summary adjudication. Indeed, due process pro­
tection at prison disciplinary hearings would operate 
to promote, rather than defeat, the institutional goals of 
security and rehabilitation and would not present an un­
manageable administrative burden.

Although the lower courts have been in agreement that 
fair disciplinary proceedings are constitutionally required, 
some courts have held that the particular safeguards of 
confrontation, cross-examination, counsel and the right to 
call witnesses are not necessary to insure fairness. How­
ever, factual disputes are as likely to occur in prison dis-



4

eiplinary hearings as in other adjudicatory settings, and 
in such cases a fair inquiry into the facts cannot be had 
in the absence of these safeguards. Furthermore, the pecu­
liar nature of prison society creates a real possibility for 
abuse of the disciplinary process.

The minimum procedural requirements of the Due 
Process Clause have historically been the best techniques 
for discovering truth and insuring objective decision-mak­
ing. In the context of prison disciplinary hearings, these 
requirements should include (a) prior written notice of the 
charges; (b) an impartial tribunal; (c) the opportunity 
to confront and cross-examine adverse witnesses and to 
call witnesses in one’s own behalf; (d) representation by 
counsel and counsel substitute; and (e) a written statement 
of the evidence relied on and reasons for the decision.

A R G U M E N T

The Due Process Clause of the Fourteenth Amend­
ment requires that a prisoner he afforded basic pro­
cedural protection prior to the imposition of prison 
discipline.

I.

As recently as ten years ago, the customary judicial 
response to inmate allegations of mistreatment was to with­
hold relief in deference to the discretion of prison admin­
istrators.1 At that time, for all practical purposes, the

1. E.g., McCloskey v. Maryland, 337 F. 2d 72, 74 (4th Cir. 
1964); Kostal v. Tinsley, 337 F. 2d 845, 846 (10th Cir. 1964).



5

Constitution did not exist within prison walls. Today, 
however, after a decade of judicial decrees protecting the 
rights of those in custody, ' ‘ it is well established that pris­
oners do not lose all their constitutional rights and that the 
Due Process and Equal Protection Clauses of the Four­
teenth Amendment follow them into prison and protect 
them there from unconstitutional action on the part of 
prison authorities.”  Washington v. Lee, 263 F. Supp. 327, 
331 (M.D. Ala. 1966), a ff’d 390 U.S. 333 (1968). As the 
Court stated in Johnson v. Avery, 393 U.S. 483 (1969):

There is no doubt that discipline and administration 
of state detention facilities are state functions. They 
are subject to federal authority only where paramount 
federal constitutional or statutory rights supervene. 
It is clear, however, that in instances where state reg­
ulations applicable to inmates of prison facilities con­
flict with such rights the regulations may be invali­
dated. 393 U.S. at 486.

Lower courts have not hesitated to intervene in internal 
prison affairs to protect prisoners from arbitrary, capri­
cious or discriminatory treatment. The Due Process Clause 
has thus been invoked in prison cases to provide protection 
against discriminatory and arbitrary infliction of “ griev­
ous loss”  upon prisoners by their keepers. Palmigiano v. 
Baxter, 487 F. 2d 1280 (1st Cir. 1973); U.S. ex rel. Miller 
v. Twomey, 479 F. 2d 701 (7th Cir. 1973); Sostre v. Mc­
Ginnis, 442 F. 2d 178 (2d Cir. 1971) (en banc), cert, denied 
sub nom. Sostre v. Oswald, 404 U.S. 1049 (1972).

In Morrissey v. Brewer, 408 U.S. 471 (1972), the specific 
requirements for minimum due process were made appli­



6

cable to parole revocation proceedings. Although Morris­
sey marked the first instance where the Court extended such 
procedural protection to individuals in custody, that deci­
sion is but another statement of the Court’s frequent recog­
nition that only through traditional due process safeguards 
is accurate fact-finding insured and arbitrary governmental 
action avoided. Joint Anti-Fascist Refugee Committee v. 
McGrath, 341 U.S. 123 (1951); Greene v. McElroy, 360 IT.S'. 
474 (1959); Willner v. Committee on Character and Fitness, 
373 U.S. 96 (1963); Goldberg v. Kelly, 397 U.S. 254 (1970). 
Thus, the Court’s statement in Wisconsin v. Constantineau, 
400 U.S. 433, 436 (1970): “ It is significant that most of 
the provisions of the Bill of Bights are procedural, for it 
is procedure that marks much of the difference between 
rule of law and rule by fiat. ’ ’

On numerous occasions this Court has described due 
process as a flexible concept. “  [I]ts exact boundaries are 
undefinable and its content varies according to specific 
factual contexts.”  Hannah v. Larche, 363 U.S. 420, 442 
(1960). The flexibility of the standard was thus articulated 
in Goldberg:

The extent to which procedural due process must be 
afforded the [individual] is influenced by the extent to 
which he may be “ condemned to suffer grievous loss,”  
Joint Anti-Fascist Refugee Committee v. McGrath, 341 
U.S. 123, 168 (1951) (Frankfurter, J. concurring), and 
depends upon whether the [individual’s] interest in 
avoiding the loss outweighs the governmental interest 
in summary adjudication. 397 U.S. at 262-63.

In applying this test to prison disciplinary hearings it 
becomes clear that prior to the imposition of any discipli­



7

nary sanction an inmate should at least be afforded the 
rudimentary procedural safeguards set down in Goldberg. 
These safeguards include (a) prior written notice of the 
charges; (b) an impartial tribunal; (c) the opportunity to 
confront and cross-examine adverse witnesses and to call 
witnesses in one’s own behalf; (d) representation by coun­
sel and counsel substitute; and (e) a written statement of 
the evidence relied on and reasons for the decision. As will 
be established herein, only through the application of these 
safeguards will the interests of both the inmate and the 
prison administration be protected.

II.

There can be no doubt that an inmate who is charged 
with a violation of institutional rules is threatened with a 
“ grievous loss”  within the meaning of Goldberg. While 
it is obvious that inmates do not enjoy all the liberties of 
free persons, any liberties which they retain thereby achieve 
a greater significance. Palmigiano v. Baxter, supra, 487 
F. 2d at 1284; U.8. ex rel. Miller v. Twomey, supra, 479 
F. 2d at 719. Thus, their interest in fair disciplinary pro­
ceedings cannot be minimized. As Professor Goffman has 
observed:

In general, the punishments meted out in total institu­
tions are more severe than anything encountered by 
the inmate in his home world. In any case, conditions 
in which a few easily controlled privileges are so im­
portant are the same conditions in which their with­
drawal has a terrible significance. Goetmax, A sylums 
50-51 (1961).



8

In New York, disciplinary decisions greatly affect an 
inmate’s liberty within the prison system. For example, an 
inmate might be confined at one of seven maximum security 
institutions or at a medium security institution such as the 
Wallkill Correctional Facility. At the latter, inmates are 
permitted far more freedom of movement and have access 
to many more rehabilitative programs.2 The determina­
tion whether an inmate is a suitable candidate for place­
ment in Wallkill depends in large part on his disciplinary 
record at maximum security facilities.3 Furthermore, once 
an inmate is at Wallkill, a single disciplinary infraction 
might result in his transfer back to a maximum security 
institution.4

Disciplinary infractions also determine the degree of 
liberty an inmate may have within his particular institu­
tion. Each institution in New York State contains a “ spe­
cial housing unit”  where an inmate may be confined for up 
to sixty days as a result of a serious disciplinary infraction. 
7 NYCRR §253.5. In a special housing unit, an inmate is 
deprived of many of the liberties of prison life. He is

2. See, Newkirk v. Butler, 364 F. Supp. 497, 500 fS.D.N.Y. 
1973):

[T ]he conditions [in the maximum security institutions] 
contrast strikingly with those in Wallkill. * * * The cells are 
locked, the guards armed, the access to library and recrea­
tional facilities more limited, the space more crowded, and 
the rehabilitation programs significantly less extensive.

3. Walter Dunbar, former Executive Deputy Commissioner, New 
York Department of Correctional Services, testified to this fact on 
November 28, 1972 during the trial of Newkirk v. Butler, supra, n. 2.

4. This practice is described in “ The Wallkill Story,”  a mimeo­
graphed public relations pamphlet distributed by the New York De­
partment of Correctional Services,



9

segregated from the general prison population, confined to 
Ms cell for at least twenty-three hours a day, denied par­
ticipation in educational and industrial programs and de­
nied the opportunity to earn wages.5

A  third consequence of disciplinary action might be 
removal from a rehabilitative program such as school, in­
dustrial training, work release or furlough. 7 NYCRR 
§253.5(a) (3). Participation in such programs is generally 
severely limited. As a result, removal might well mean 
that the inmate will not receive another such opportunity 
for months or even years.

In addition to jeopardizing an inmate’s institutional 
liberty and his access to rehabilitative programs, disci­
plinary infractions also indirectly jeopardize his liberty in 
the traditional sense by reducing his chances for parole 
release. In New York, an inmate’s disciplinary record is 
a major factor in determining his eligibility for parole. 
7 NYCRR §1.10(a). Indeed, the Board of Parole has, on 
occasion, postponed an inmate’s parole release hearing 
pending the outcome of disciplinary proceedings against 
him.6 On other occasions, the Board has rescinded an un­
executed grant of parole where the potential parolee was

5. As a less severe punishment, an inmate may also be ‘ ‘keep- 
locked” for up to sixty days. 7 N YCRR §253.5 (a ) (4 ). This in­
volves the same deprivations as confinement in a special housing unit 
except that the inmate is confined to his own cell and thus is not 
segregated from the inmate population.

6. For example, in July, 1973, the New York State Board of 
Parole postponed the parole release hearing of James Arnold, an in­
mate at the Great Meadow Correctional Facility and a client of 
amicus, because of institutional disciplinary charges pending against 
him. After Arnold was found guilty of these charges, the Board 
denied parole release and held him for an additional year.



10

found guilty of a disciplinary infraction after the grant of 
parole, but before Ms actual release.7

Consequently, inmates possess a significant quantum of 
liberty which may be threatened by disciplinary action. 
Unless there exists a substantial countervailing interest on 
the part of prison administrators, due process requires that 
there be sufficient procedural safeguards at disciplinary 
hearings to preclude deprivations of that liberty as the 
result of inadequate and, at times, biased factual deter­
minations.

Prison administrators generally proffer three basic jus­
tifications in support of summary decision-making in the 
disciplinary process: first, that imposition of discipline is 
not truly adversarial in nature but merely a component 
of the rehabilitative and therapeutic scheme of incar­
ceration;8 second, that a requirement of due process pro­
tection prior to punishment would constitute a threat to 
institutional security;9 and third, that procedural protec­
tion at disciplinary hearings would create a severe admin­
istrative burden and result in additional expenditure of 
public funds.10

7. For example, Reginald Cook, an inmate at the Greenhaven 
Correctional Facility and a client of amicus, was granted parole on 
October 16, 1973, and was scheduled to be released on November 
21, 1973. Prior to the release date, Cook was disciplined for several 
institutional infractions. On November 15, 1973, Cook was told that 
the Board of Parole had rescinded his parole and that he would have 
to wait another four months for release consideration.

8. See, Braxton v. Carlson, 483 F. 2d 933 (3rd Cir. 1973).
9. See, Brief of Petitioners, p. 28.

10. Id. at p. 41.



11

In light of the decisions of this Court and the writings 
of correctional authorities, these purported justifications do 
not withstand analysis. Indeed, it can he shown that due 
process protection at prison disciplinary hearings is con­
sistent with the interests of prison administrators as it 
tends to promote, rather than defeat, the goals of security 
and rehabilitation.

The argument that due process does not apply where 
adjudicatory proceedings are rehabilitative or therapeutic 
has been firmly rejected by the Court. In In re Gault, 387 
U.S'. 1 (1967), the Court rejected the invocation of parens 
patriae as justification for withholding procedural safe­
guards at juvenile proceedings. Similarly in Morrissey v. 
Brewer, supra, 408 U.S. 471, the Chief Justice noted that 
the procedural protections required therein were consistent 
with the purposes of parole:

[Sjociety has a further interest in treating the parolee 
with basic fairness: fair treatment in parole revoca­
tions will enhance the chance of rehabilitation by avoid­
ing reactions to arbitrariness. 408 U.S. at 484!1

That fairness operates as a constructive force in re­
habilitative efforts has also been recognized by the Presi­
dent’s Commission on Law Enforcement and Administra­
tion of Justice:

The necessity of procedural safeguards should not be 
viewed as antithetical to the treatment concerns of 
corrections. The existence of procedures both fair in 11

11. Prior to the Morrissey decision, the rehabilitative nature of 
revocation proceedings had been used as a justification for denying 
procedural protection. See, Alverez v. Turner, 422 F. 2d 214, 217 
( 10th Cir. 1970) (parole revocation hearing need not be adversarial 
since “ the decision to revoke parole is prognostic.” ).



1 2

fact and perceived to be fair by offenders is surely 
consonant with the “ collaborative regime”  emphasized 
as desirable by modern corrections, in which staff and 
offenders are not cast as opponents but are united in 
a common effort aimed at rehabilitation. In a prison 
no less than in society as a whole, respect for and co­
operation with authority requires the guaranty of fair­
ness. President’s Commission on Law Enforcement 
and the Administration of Justice, Task F obce R e- 
poet: Cobbectioxs 13 (1967).

In addition to jeopardizing rehabilitation, the pris­
oner’s impression of disciplinary hearings as unfair may 
engender such bitterness as to present a threat to prison 
security. As Chief Judge Coffin has observed:

[T]he orderly care with which decisions are made by 
the prison authority is intimately related to the level 
of respect with which prisoners regard that authority. 
There is nothing more corrosive to the fabric of a 
public institution such as a prison than a feeling among 
those whom it contains that they are being treated 
unfairly. Palmigicmo v. Baxter, supra, 487 F. 2d at 
1283.

Unfair disciplinary methods have in fact been termed 
one of the major causes of prison riots :

Readiness to riot results from predisposing causes 
such as * * * oppressive custodial discipline, sadistic 
staff quick to write disciplinary charges against in­
mates, and a general punitive attitude by administra­
tion and line personnel. Fox, Why Prisoners Biot, 35 
F ed. P bob. 9, 13 (March, 1971).

It is undisputed that in emergency situations prison 
officials have the right to act promptly and immediately,



13

and we do not urge that an administrative hearing is neces­
sary prior to the imposition of discipline in such cases. 
The normal disciplinary case, however, does not occur in 
an emergency setting. In the ordinary course of prison 
affairs, administrative hearings would have no detrimental 
effect on security. Bather, the impression of fairness en­
gendered by such hearings would seem far more likely to 
prevent inmate disturbances.

The argument that basic due process protection at dis­
ciplinary hearings would cause an undue administrative 
burden and expense may well be illusory. A  recent survey 
of nationwide disciplinary practices conducted by the 
American Bar Association’s Resource Center for Correc­
tional Law and Legal Services12 indicates that many juris­
dictions have not found the burden unmanageable. The 
survey found that twenty-nine jurisdictions presently allow 
inmates to call relevant witnesses at disciplinary hearings, 
twenty-eight allow inmates to cross-examine adverse wit­
nesses and fourteen permit the inmate representation by 
counsel. While some of these jurisdictions have adopted 
such safeguards as a result of litigation, others have done 
so on their own initiative.13

However, the question of whether or not procedural due 
process would cause an administrative or financial burden 
is without constitutional significance. The Court has re­

12. A B A  Resource Center for Correctional Law and Legal Serv­
ices, Survey of Prison Disciplinary Practices and Procedures (April, 
1974).

13. See, Kansas Penal System, Inmate Disciplinary Procedures 
(August, 1972) ; Vermont Department of Corrections, Disciplinary 
Regulations (July, 1972).



14

jected at every turn arguments that have urged limitations 
in the definition of constitutional rights based upon asser­
tions of unavailable resources by the States. Goldberg v. 
Kelly, supra, 397 U.S. at 266; Harman v. Forssenius, 380 
U.S. 528, 542 (1965); Shapiro v. Thompson, 394 U.S. 618, 
633 (1969); Carrington v. Rash, 380 U.S. 89, 96 (1965). 
In short, the meaning of the Due Process Clause does not 
fluctuate in proportion to the number of persons who seek 
justifiable refuge in it. The rights afforded by the Consti­
tution are personal rights “ which the State must respect, 
the benefits of which every person may demand * * *. [I]ts 
safeguards extend to all.”  Hill v. Texas, 316 U.S. 400, 406 
(1942).

III.

Having applied the Goldberg test to prison disciplinary 
proceedings, the lower courts are in agreement that the 
inmate’s interest in fair decison-making outweighs any 
governmental interest which would sacrifice fairness. There 
has, however, been significant disagreement as to precisely 
what procedural safeguards are necessary to insure fair­
ness in the prison context. McDonnell v. Wolff, 483 F. 2d 
1059 (8th Cir. 1973) [this case]; Palmigiano v. Baxter, 
supra, 487 F. 2d 1280; U.S. ex rel. Miller v. Twomey, supra, 
479 F. 2d 701; Sostre v. McGinnis, supra, 442 F. 2d 178; 
Braxton v. Carlson, 483 F.2d 933 (3d Cir. 1973).

Sostre, the leading case rejecting basic procedural pro­
tection, involved a disciplinary proceeding in which there 
had been no real dispute of fact. The only issue concerned 
the propriety of Sostre’s admitted jailhouse lawyering, his 
refusal to discuss a black liberation group referred to in



15

his letters and a reference in a letter to his impending ‘ ‘ lib­
eration. ’ ’ Upon this record, the court of appeals held that 
Sostre was entitled to a “ minimally fair and rational”  in­
quiry based upon “ facts rationally determined.”  442 F. 2d 
at 198. However, the court declined to require the specific 
due process safeguards of confrontation, cross-examina­
tion, counsel, and the right to call witnesses.

Sostre’s holding that a “ minimally fair and rational 
inquiry”  can be had in the absence of full due process pro­
tection has been severely criticized and for good reason. 
As Professor Millemann has written:

It is an empty promise to guarantee fairness while 
omitting the tools necessary to accomplish that fair­
ness. I f  there is no requirement of due process at a 
disciplinary hearing, then the proceeding would sim­
ply follow this scenario: inmate Jones comes before 
a disciplinary panel; inmate Jones is told that he has 
been accused of committing a certain act of miscon­
duct ; inmate Jones is asked what “ his side of the 
story is ” ; and, in the overwhelming number of cases, 
inmate Jones is told that he is guilty. Without vehi­
cles for discovering truth and insuring objectivity ad­
ministrative proceedings become a sham and a means 
for legitimizing arbitrariness. Millemann, Prison Dis­
ciplinary Hearings And Procedural Due Process—The 
Requirement Of A Full Administrative Hearing, 31 
M d . L . R ev. 27, 50 (1971).

See also., South Carolina Dept, of Corrections, The E merg­
ing R ights of the Confined 108 (1972).

The Second Circuit itself recently east doubt on the 
continued vitality of the Sostre standard. In a prison



16

discipline case containing numerous factual disputes con­
cerning the role of certain inmates in the Attica rebellion, 
the court held that the right to cross-examination as well 
as to other due process safeguards had not been “ inesca­
pably foreclosed”  by Sostre and noted that in Sostre, “ we 
did not state that none of the rejected safeguards were 
ever to be constitutionally required in any case * * 
Nieves v. Oswald, 477 F. 2d 1109, 1113 (2d Cir. 1973).

Factual disputes are as likely to arise in prison disci­
plinary hearings as in any other adjudicatory setting. 
When such disputes occur, it is virtually impossible for an 
inmate to establish innocence at a hearing conducted in 
accordance with the Sostre standard. For example, in July 
of 1973, three inmates at the Great Meadow Correctional 
Facility were accused by another inmate of having raped 
him. Institutional disciplinary hearings were held where 
each of the three denied this serious charge and named 
alibi witnesses to establish that each was not even present 
at the time and place of the alleged rape. Each also re­
quested an opportunity to confront and cross-examine the 
inmate levelling the accusation and to be permitted repre­
sentation by counsel. In accordance with the rules gov­
erning prison disciplinary hearings in New York State,14 
all of these requests were denied, no witnesses were called, 
and the three prisoners were disciplined solely on the basis 
of the accusing inmate’s written allegations.15

14. 7 N YCRR, Ch. V, pt. 253.
15. Superintendent’s Proceedings of James Arnold, Joseph Elfe 

and Neurha Short, Great Meadow Correctional Facility, Comstock, 
New York, July 31, 1973. These facts are the subject of a civil rights 
action, Elfe, et al. v. Preiser, et al., 73 CV 482, filed by the Prisoners’ 
Rights Project in October, 1973, in the United States District Court 
for the Northern District of New York.



17

In a second case, an inmate at the Ossining Correctional 
Facility was charged with challenging a correction officer to 
a fight. At the disciplinary hearing, the inmate pleaded not 
gnilty and submitted a list of five inmate witnesses whom he 
wished to have testify. Each of these witnesses would have 
corroborated the inmate’s story that the officer had pro­
voked the incident by pushing the inmate without any jus­
tification or provocation. As in the previous example, the 
witnesses were not permitted to testify and the inmate was 
found guilty solely on the basis of the officer’s wmitten 
report.16

In each of these examples, the inmates faced with dis­
ciplinary action were left with “ a reasonable opportunity 
to explain [their] actions”  [Sostre v. McGinnis, supra, 442 
F. 2d at 198] as their only means of defense. In the first 
example, this explanation could only be a declaration that 
they did not know anything about the incident in question. 
In the second, any explanation would necessarily involve 
asking the prison disciplinary board to believe the word 
of a single inmate over the word of a correctional officer. 
There can be little question that both of these defenses are 
of minimal worth.

In cases such as those detailed above, the absence of 
full procedural protection necessarily prevents the “ mini­
mally fair and rational inquiry”  into the facts assumed 
possible by Sostre. Indeed, without greater procedural 
protection than a Sostre-tjpe rule affords, there is likely 
to be no genuine inquiry.

16. Superintendent’s Proceeding of Dennis Yarrell, Ossining 
Correctional Facility, Ossining, New York, January 10, 1972.



18

Observers of bearings similar to those countenanced by 
Sostre have noted the disciplinary board’s inclination to 
accept a reporting officer’s version of the facts without 
questioning its accuracy. Erik Olin Wright, who attended 
Adjustment Committee Proceedings at San Quentin, de­
scribed the normal procedure:

When [the prisoner] entered the room he was told by 
the chairman of the committee to sit down and then 
was read the formal charge of which he was accused. 
The chairman then asked the prisoner what he had to 
say for himself. There followed a brief interrogation 
by each of the committee members, after which the 
prisoner was told to leave the room and wait outside. 
The committee then discussed the case for two or three 
minutes and reached a decision about what punishment 
should be given the prisoner. In none of the cases 
which I witnessed was there any discussion of the 
possible innocence of the accused prisoner; all that 
was discussed was the appropriate harshness of the 
punishment. Wright, The P olitics oe P unishment 
83-84 (1973) (emphasis added).

Ronald Goldfarb and Linda Singer have witnessed the same 
phenomenon in other states :

In Wisconsin, for example, there are hearings before 
a Disciplinary Committee whenever a prisoner is pun­
ished for a “ substantial”  violation. However, based on 
his observations of the procedure at the State Reform­
atory, a legal intern concluded: “ In essence, the com­
mittee takes the facts as stated in the [guard’s] con­
duct report to be true, thus creating a presumption of 
guilt which is difficult if not impossible for the inmate



19

to overcome.”  Our observations of hearings in pris­
ons in other states bear out this conclusion. When 
there is a substantial question of a prisoner’s guilt, 
the usual practice is to find him guilty but give him 
a mild sentence. Goldfarb and Singer, A fter Convic­
tion 493 (1973).17

The procedural protection afforded by Sostre is also 
inadequate because of the peculiar nature of prison society. 
Certain unique pressures and relationships exist in prisons 
which make the need for a close examination of the facts 
underlying disciplinary action particularly acute. An ex­
ample of this has been described by a former Director of 
the Federal Bureau of Prisons:

[T]he prison society has its way of enforcing its rules. 
Gambling, for example, is illegal in federal prisons. 
* * * [W ] elching on a bet, however, is a sin to be 
avenged by some subtle method, such as planting dope 
or a knife beneath the offender’s bed and tipping off 
an officer. Bennett, I Chose P rison 28 (1970).

Another reality of prison life is that prison guards are 
likely to be poorly educated,18 and poorly trained19 yet

17. Indeed, many inmates have expressed the belief that protesta­
tions of innocence may result in a harsher penalty. Thus, in the face 
of this heavy presumption of guilt, they will admit the violation re­
gardless of whether or not they are guilty. See, Feit, P rison D is­
cipline  and  th e  I nm ate  Sense of I njustice  33 (1971).

18. See the testimony of John B. Greenholtz, Chairman, Ne­
braska Board of Paroles, and former Deputy Warden, Nebraska 
Penal and Correctional Complex. Appendix, p. 19.

19. See generally, N ew  Y ork State Special Com m ission  on 
A ttica  ( “ McKay Commission” ), T he  O fficial  R eport on A ttica 
27-28 (1972).



2 0

vested with, near total control over the lives of inmates.20 
In view of this, there exists a real possibility that they will 
misuse their authority.21 Thus, disciplinary procedures 
such as those established in Sostre, which permit an in­
mate to be punished solely on the basis of a guard’s writ­
ten report, will necessarily constitute an invitation to arbi­
trariness.

IV.

Throughout our constitutional history, the minimum 
procedural requirements of the Due Process Clause have 
proven to be the most effective devices for the discovery 
of truth and insuring objective decision-making. Although 
their value has been repeatedly underlined by the Court,

20. For an analysis of the possible effects of this total control on 
the guards themselves, see Zimbardo, I nterpersonal D ynam ics  
in  a  S im ulated  P rison (1972). Professor Zimbardo created a 
simulated prison at Stanford in which well-adjusted college students 
role-played prisoners and guards for an extended period of time. At 
the termination of the study, Zimbardo concluded that:

Being a guard carried with it social status within the prison, 
a group identity (when wearing the uniform), and above all, 
the freedom to exercise an unprecedented degree of control over 
the lives of other human beings. This control was invariably 
expressed in terms of sanctions, punishment, demands and with 
the threat of manifest physical power. There was no need for 
the guards to rationally justify a request as they did in their 
ordinary life, and merely to make a demand was sufficient to 
have it carried out. Id. at 41.

21. See, Landman v. Peyton, 370 F. 2d 135, 140 (4th Cir. 1966) :
Acton’s Classic proverb about the corrupting influence of ab­
solute power is true of prison guards no less than other men. 
In fact, prison guards may be more vulnerable to the corrupting 
influence of unchecked authority than most people. It is well 
known that prisons are operated on minimum budgets and that 
poor salaries and working conditions make it difficult to attract 
high calibre personnel. Moreover, the “ training”  of the officers 
in methods of dealing with obstreperous prisoners is but a eu­
phemism in most states.



21

it will be helpful to discuss briefly the necessity of each in­
dividual procedural requirement in the context of prison 
disciplinary hearings.

(1) Prior Written Notice of the Charges

The most clearly established principle of due process 
is that timely and adequate notice must be furnished the 
party proceeded against. Cole v. Arkansas, 333 U.S. 196, 
201 (1948); In re Gault, 387 U.S. 1, 33 (1967); Goldberg v. 
Kelly, supra, 397 U.S. at 267-268. In prison, notice is 
particularly important because the rules governing inmate 
conduct are generally extremely vague and uncertain.22 23 
Without specific written notice of the charges an inmate 
will have no opportunity to adequately present his version 
of the incident or to insure that the hearing is kept within 
bounds. Landman v. Royster, 333 F. Supp. 621, 660 (E.D. 
Va. 1971).28

(2 )  Impartial Tribunal

Whether or not an individual receives a fair hearing 
ultimately depends on the fairness of the tribunal.

In prison, the nature of institutional society creates se­
rious doubt as to whether any prison employee could be a

22. In New York, for example, there are prohibitions against 
such things as “vulgar language” , “ insolence” and “ boisterous noise” . 
N.Y. Dept, of Corr. Serv., Inmates’ Rule Book, Rules 6, 7, 42 (Rev. 
ed. 1968).

23. The Prisoners’ Rights Project recently filed a civil rights 
action in the United States District Court for the Southern District 
of New York seeking, inter alia, an order compelling the Commis­
sioner of Correctional Services to promulgate and distribute a com­
plete listing of all rules and regulations governing inmate conduct 
“ in sufficiently clear and explicit language so as to prevent incon­
sistent application, arbitrariness and favoritism.”  Betancourt, et al. 
v. Preiser, et al., 74 Civ. 1113.



2 2

truly impartial member of an disciplinary tribunal. Tims, 
some lower court decisions have required that at least one 
member of the tribunal be from outside the prison staff. 
See Bundy v. Cannon, 328 F. Supp. 165 (D. Md. 1971); 
Collins v. Schoonfield, 344 F. Supp. 257 (D. Md. 1972). At 
a minimum, however, each member of the tribunal must be 
free of any prior involvement with the incident under ex­
amination so that he may decide the case on the basis of 
the evidence at the hearing. Landman v. Royster, supra, 
333 F. Supp. at 653.

(3 )  Confrontation, Cross-examination and Witnesses

The right to confront and cross-examine opposing wit­
nesses has been accepted as being appropriate and neces­
sary “  [i]n almost every setting where important decisions 
turn on questions of fact.”  Goldberg v. Kelly, supra, 397 
U.S. at 269. The importance of these rights cannot be 
overestimated. As Chief Justice Warren wrote in Greene 
v. McElroy, 360 U.S. 474 (1959):

Certain principles have remained relatively immuta­
ble in our jurisprudence. One of these is that where 
governmental action seriously injures an individual, 
and the reasonableness of the action depends on fact 
findings, the evidence used to prove the Government’s 
case must be disclosed to the individual so that he has 
an opportunity to show that it is untrue. While this 
is important in the case of documentary evidence, it is 
even more important where the evidence consists of 
the testimony of individuals whose memory might be 
faulty or who, in fact, might be perjurers or persons 
motivated by malice, vindictiveness, intolerance, prej­
udice, or jealousy. We have formulized these protec­
tions in the requirement of confrontation and cross- 
examination. * * # This Court has been zealous to



23

protect these rights from erosion. It has spoken out 
not only in criminal cases * # * [citing] but also in all 
types of cases where administrative and regulatory 
actions were under scrutiny. 360 U.S. at 496-97.

In Davis v. Alaska,  ----- - U.S. ——, 42 U.S.L. Week 4295
(February 27,1974), the Court again underscored the para­
mount importance of the right of cross-examination not­
withstanding the state’s strong and legitimate policy of 
preserving the confidentiality of juvenile records. 42 
U.S.L. Week at 4299.

That prison guards, like other citizens, may at times 
be motivated by “ malice, vindictiveness, intolerance, prej­
udice or jealousy”  is beyond doubt. The necessity for con­
frontation and cross-examination, therefore, is no less in 
the context of prison disciplinary hearings. Significant 
denials of liberty based upon the unchallenged testimony 
of a faceless accuser are simply not consistent with con­
cepts of fundamental fairness and traditional notions of 
procedural due process. Millemann, Prison Disciplinary 
Hearings And Procedural Due Process—The Requirement 
Of A Full Administrative Hearing, supra, 31 Md. L. Rev. 
at 51; see also Jacob, Prison Discipline and Inmates’ 
Rights, 5 Harv. Civ. Rts.— Civ. Lib. L. Rev. 227, 247 (1970).

The traditional rationale for denying cross-examination 
at prison disciplinary hearings has been that the question­
ing of correctional officers by inmates would erode the in­
mate-staff relationship.24 This rationale, however, is based 
on an archaic correctional philosophy the most current 
attribute of which is its frequent repudiation. As the

24. See Brief of Evelle J. Younger, Attorney General of the State 
of California, Amicus Curiae, at p. 10.



24

President’s Commission on Law Enforcement lias found, 
“ [d]enying offenders any chance to challenge arbitrary 
assertions of power by correctional officials * * * [is] in­
consistent with the correctional goal of rehabilitation, 
which emphasizes the need to instill respect for and will­
ingness to cooperate with society and to help the offender 
assume the role of a normal citizen.”  T ask F orce B eport: 
Corrections 82 (1967). Numerous lower courts, in requir­
ing confrontation and cross-examination, have also rejected 
this rationale.25 As Judge Merhige has stated:

The Court appreciates the concern of prison officials 
that interrogation by prisoner of the guard force may 
be at variance with their ordinary respective positions 
in the penal hierarchy. Because most disciplinary 
cases will turn on issues of fact, however, the right 
to confront and cross-examine witnesses is essential. 
Landman v. Royster, supra, 333 F. Supp. at 653.

Witnesses are also necessary to a fair hearing. “ Fact 
finding is not complete unless illuminated by the testimony 
of witnesses called by both adversaries.”  U.S. ex rel. Neal 
v. Wolfe, 346 F. Supp. 569, 574-75 (E.D. Pa. 1972). Obvi­
ously in any situation where an inmate may have alibi wit­
nesses he will not be able to present a defense unless they 
are permitted to testify.26

25. Amicus relies on the Brief of Respondents for a full listing 
of these decisions.

26. See Dodson v. Hough, 473 F. 2d 689, 690-91 (8th Cir. 
1972) :

[I]n  this case Iowa’s procedure should be reviewed to determine 
whether _ they were likely to have established the truth of the as­
serted violation. * * * For all we know, Dodson may be able 
to show that he could have called witnesses at his disciplinary 
hearing who would have established an airtight alibi or mistaken 
identification by the correctional officer who testified against him. 
* * * Without an examination of any of the underlying facts, 
the district court erred in dismissing this action.



25

(4 )  Counsel and Counsel Substitute

The right to counsel has long been recognized as an 
essential element of due process. As was said in Powell 
v. Alabama, 287 U.S. 45 (1932), “ The right to be heard 
would be, in many cases, of little avail if it did not com­
prehend the right to be heard by counsel.”  287 U.S. at 68- 
69. Counsel can help delineate the issues, present the 
factual contentions in an orderly manner, conduct cross- 
examination, and generally safeguard the interests of the 
individual. Goldberg v. Kelly, supra, 397 U.S. at 270-71.

In the prison setting, the absence of counsel may ren­
der all other procedural safeguards meaningless. Mr. Jus­
tice Powell’s observation in Gagnon v. Scarpelli, 411 U.S. 
778, 786-87 (1973), easily adapts itself to the context of 
prison disciplinary hearings:

[T]he effectiveness of the rights guaranteed by Mor­
rissey may in some circumstances depend on the use 
of skills which the probationer or parolee is unlikely 
to possess. Despite the informal nature of the pro­
ceedings and the absence of technical rules of proce­
dure or evidence, the unskilled or uneducated proba­
tioner or parolee may well have difficulty in presenting 
his version of a disputed set of facts where the pres­
entation requires the examining or cross-examining 
of witnesses or the offering or dissecting of complex 
documentary evidence.

Amicus is well aware that requiring the states to ap­
point counsel in all disciplinary hearings might present 
an unnecessary administrative burden, and thus such a 
requirement is not urged herein. However, because of the



26

vital need for counsel in some disciplinary cases, we urge 
the Court to adopt the test set forth in Gagnon and rule 
that counsel should he provided in those cases where,

after being informed of his right to request counsel, 
the [inmate] makes such a request, based on a timely 
and colorable claim (i) that he has not committed the 
alleged violation * # # or (ii) that, even if the violation 
* * * is uncontested, there are substantial reasons 
which justified or mitigated the violation * * * and 
that the reasons are complex or otherwise difficult to 
develop or present. Gagnon v. Scarpelli, supra, 411 
IT. S'. at 790.

In all disciplinary cases, however, an inmate should be 
permitted to bring retained counsel [Palmigiano v. Baxter, 
supra, 487 F.2d 1280; Landman v. Royster, supra, 333 F. 
Supp. 621] or where none is available, a counsel substitute 
such as a law student or fellow inmate. See, Colligan v. 
United States, 349 F. Supp. 1233, 1238 (E.D. Mich. 1972). 
The assistance of counsel would enable an inarticulate in­
mate to present his case in an organized fashion and would 
insure that all procedural safeguards are observed. The 
presence of counsel might benefit the prison administration 
as well. As the court noted in Palmigiano:

Counsel might provide correctional administrators 
with useful guidance in novel situations where no pro­
cedural rules had as yet been developed. And because 
the precise rudiments of prison disciplinary hearings 
exist in a developing area of the law where no firm 
guidelines exist, trained legal counsel may be of im­
portant assistance in reaching accommodations be­
tween inmates and administrators which would avoid 
the necessity of continued litigation. 487 F. 2d at 1292.



27

(5 )  W ritten Findings o f Fact and Reasons for  the Decision

The concept of fundamental fairness has led the Court 
to declare that administrative bodies must provide written 
finding's of fact and reasons. Goldberg v. Kelly, supra, 397 
U.S. at 271; Gonzalez v. United States, 348 U.S. 407 (1955); 
SEC v. Chenery Corp., 318 U.S. 80 (1943). Similarly, re­
quiring disclosure of reasons upon which disciplinary rul­
ings are based is crucial to the maintenance of fairness, as 
it will preclude insulation of such decisions from scrutiny. 
Indeed, where there is no statement of findings of fact and 
reasons for the disciplinary decision, the harm caused by 
the vagueness of prison regulations27 is greatly com­
pounded. Cf. Monks v. New Jersey State Board of Parole, 
58 N.J. 238, 277 A. 2d 193 (1971).

In sum, the need for the procedural safeguards out­
lined above is as great in prison as in other areas. And 
what Mr. Justice Frankfurter once wrote in a related con­
text merits restatement here:

Man being what he is cannot safely be trusted with 
complete immunity from outward responsibility in de­
priving others of their rights. At least such is the con­
viction underlying our Bill of Rights. That a conclu­
sion satisfies one’s private conscience does not attest 
its reliability. The validity and moral authority of a 
conclusion largely depends on the mode by which it 
was reached. Secrecy is not congenial to truth-seeking 
and self-righteousness gives too slender an assurance 
of rightness. No better instrument has been devised 
for arriving at truth than to give a person in jeopardy

27. See footnote 23, ante.



28

of serious loss, notice of the case against him and op­
portunity to meet it. Nor has a better way been found 
for generating the feeling, so important to a popular 
government, that justice has been done. Joint-Anti 
Fascist Refugee Committee v. McGrath, supra, 341 
TT.S. at 171-172 (concurring opinion).

Conclusion

For the above reasons the judgm ent of the court 
below  should be affirmed.

Respectfully submitted,

W illiam E. H ellebstein 
Joel B eegee
W abben H. R ichmond, III 

The Legal Aid Society 
Prisoners’ Rights Project 

Counsel for Amicus Curiae



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