Procunier v. Clutchette Brief for Appellees

    RAYMOND J. PROCUNIER, et al.,
Defendants-Appellants,

v s .

JOHN WESLEY CLUTCHETTE, et al.,
Plaintiffs-Appellees.

IN THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH -CIRCUIT

No. 71-2357

On Appeal from the United States District Court 
for the Northern District of California

BRIEF FOR APPELLEES

WILLIAM BENNETT TURNER
ALICE DANIEL 
12 Geary Street 
San Francisco, California 94108

FLOYD SILLIMAN 
SILLIMAN & HOUSE 
130 West Gabilan 
Salinas, California 93901

JOHN THORNE 
510 North Third Street 
San Jose, California

FAY STENDER 
5406 Claremont Avenue 
Oakland, Ciixii.oriUu 9‘̂oj.o

Attorneys for Piaiacif^s-.Vvv---



TABLE OF CONTENTS

TABLE OF AUTHORITIES................................  iv

STATEMENT OF THE C A S E ..........  1

STATEMENT OF FACTS ..................................  3

ISSUES PRESENTED ....................................  3

ARGUMENT ............................................  4
I. Introduction ..................................  4
II. The Consequences Of Disciplinary Proceedings 

At San Quentin Are Sufficiently Serious To 
Require Procedural Safeguards Against Error 
Or Arbitrariness ..............................  7
(a) Sentence to Isolation ....................  8
(b) Confinement to the Adjustment

Center or Segregation ....................  8
(c) Referral to the Adult Authority..........  10
(d) Assessment of Damages or

Forfeiture of Earnings ..................  11
(e) Referral to the District Attorney

for Prosecution..........................  13
III. The Current Disciplinary Procedures At 

San Quentin Are Inadequate To Ensure
Reliable Fact-Finding ........................  14
1. N o t i c e ..................................  16
2. Impartial Tribunal ......................  18
3. Counsel, Staff or Other Assistance . . . .  19
4. Confrontation and Witnesses ..............  25

Page

ii



Page

5. A Reasoned Decision Based on the
Evidence Adduced at the Hearing ..........  31

6. Record and Appeal........................  32
IV. A Prisoner May Not Be Subjected To

Disciplinary Punishment For Conduct That 
Constitutes A Crime And That May Be 
Referred To The District Attorney For 
Prosecution Unless He Is Provided At The 
Hearing With Counsel And With The Right
To Cross-Examine And Call Witnesses..........  38

CONCLUSION..........................................  42

APPENDIX

ill



TABLE OF AUTHORITIES

CASES Page

Arciniega v. Freeman, __ U.S. ___,
10 Cr. L. Rptr. 4050 (Oct. 26, 1971)

Barber v. Page, 390 U.S. 719 (1968)
Baxstrom v. Herola, 383 U.S. 107 (1966)
Bell v. Burson, 402 U.S. 535 (1971)
Berger v. California, 393 U.S. 314 (1969)
Berryhill v. Gibson, ___ F.Supp. ___,
40 U.S.L.W. 2147 (M.D. Ala. Sept. 3, 1971)

Bundy v. Cannon, 328 F.Supp. 165 
(D. Md. 1971)

Carothers v. Follette, 314 F.Supp. 1014 
(S.D. N.Y. 1970)

Carter v. McGinnis, 320 F.Supp. 1092 
(W.D. N.Y. 1970)

Covington v. Harris, 419 F .2d 617 
(D.C. Cir. 1969)

Dabney v. Cunningham, 317 F.Supp. 57 
(E.D. Va. 1970)

Davis v. Lindsay, 321 F.Supp. 1134 
(S.D. N.Y. 1970)

Duncan v. Louisiana, 391 U.S. 145 (1968)
Ellhamer v. Wilson, 445 F.2d 856 
(9th Cir. 1971)

Escalera v. New York City Housing Authority, 
425 F.2d 853 (2d Cir. 1970)

Fleming v. Tate, 156 F.2d 848 
(D.C. Cir. 1946)

Garrity v. New Jersey, 385 U.S. 493 (1967)

32
28
11
15.36 
25,27,28

19

9,18,19,
22,30,32

9.10.18.20.36

9

4

9

9
7,8

23

15,17,18,29,31

37
40

xv



Page

In re Gary W, 5 Cal.3d 296,
___ Cal. Rptr. ___ (1971)

Goldberg v. Kelly, 397 U.S. 254 (1970)

Gonzales v. United States, 348 U.S. 407 (1955) 
Greene v. McElroy, 360 U.S. 474 (1959)
Griffin v. California, 380 U.S. 609 (1965)

11
14,15,18,
24,29,31
27
26
40

Jackson v. Godwin, 400 F.2d 529 
(5th Cir. 1968) 5,35

Johnson v. Avery, 393 U.S. 483 (1969) 22,36

Kent v. United States, 383 U.S. 541 (1966)
Klim v. Jones, 315 F.Supp. 109 
(N.D. Cal. 1970)

Landman v. Peyton, 370 F.2d 135 
(4th Cir. 1966)

Landman v. Royster, ___ F.Supp. ___,
U.S.L.W. 2256, No. 170-69-R 
(E.D. Va. Oct. 30, 1971)

Malloy v. Hogan, 378 U.S. 1 (1964)
Mathis v. United States, 391 U.S. 1 (1968)
Mayberry v. Pennsylvania, 400 U.S. 455 (1971)
In re McClain, 55 Cal.2d 78,
9 Cal. Rptr. 824 (1960)

McConnell v. Rhay, 393 U.S. 2 (1968)
Mead v. California Adult Authority,
415 F.2d 767 (9th Cir. 1969)

27

12

4

6,9,15,18,22,
29,30,32,36
40
39
19

11
23

24

v



Page

Mempa v. Rhay, 389 U.S. 128 (1967)
Meola v. Fitzpatrick, 322 F .Supp. 878 
(D. Mass. 1971)

Miranda v. Arizona, 384 U.S. 436 (1966)
Morris v. Travisono, 310 F.Supp. 857 
(D. R.I. 1970)

In re Murchison, 349 U.S. 133 (1955)
Nolan v. Scafati, 430 F .2d 548 
(1st Cir. 1970), aff'g 306 F .Supp. 1 
(D. Mass. 1969)

People v. Dorado, 62 Cal.2d 338,
42 Cal. Rptr. 169 (1965)
Pointer v. Texas, 380 U.S. 400 (1965)
Schuster v. Iierold, 410 F.2d 1071 
(2d Cir.), cert, denied, 396 U.S. 847 (1969)

Shapiro v. Thompson, 394 U.S. 618 (1969)
Simmons v. United States, 390 U.S. 377 (1968)
Slochower v. Board of Higher Education,
350 U.S. 551 (1956)

20,21

9
21,39

9,22,30,32
19

5,7,9,32

25,39
25

11
36
40

40

Sniadach v. Family Finance Corp., 
395 U.S. 337 (1969)

Sostre v. 
(2d Cir.

McGinnis, 442 F.2d 178
1971), petition for cert, pending

Specht v. Patterson, 386 U.S. 605 (1967)
Spevack v. Klein, 385 U.S. 511 (1967) 
Thompson v. Louisville, 362 U.S. 199 (1960)

Townsend v. Burke, 334 U.S. 736 (1948) •
United States v. Wade, 383 U.S. 218 (1967)

12,13,15

5
11,33
40
32

11
21



Page

United States v. Weston, F.2d , 
No. 26,850 (9th Cir. Sept. 3, 1971) 11,27,37
United States ex rel Bey v. Connecticut 
State Board of Parole, 443 F.2d 1079 
(2d Cir. 1971) 20,21,27

United States ex rel Campbell v. Pate, 
401 F .2d 55 (7th Cir. 1968) 11

United States ex rel Hancock v. Pate, 
223 F.Supp. 202 (N.D. 111. 1963) 10,11

United States ex rel Marcial v. Fay, 
249 F .2d 662 (2d Cir. 1957), 
cert, denied, 355 U.S. 915 (1958) 36
Williams v. New York, 337 U.S. 241 (1949) 27
Williams v. Patterson, 389 F.2d 374 
(10th Cir. 1968) 24

Williams v. Robinson, 432 F .2d 637 
(D.C. Cir. 1970) 9,13,36

Willner v. Committee on Character 
and Fitness, 373 U.S. 96 (1963) 26

Wisconsin v. Constantineau, 
400 U.S. 433 (1971) 15

Wright v. McMann, 321 F.Supp. 127 
(N.D. N.Y, 1970) 9,14,34

STATUTES, RULES AND REGULATIONS

42 U.S.C. Section 1983 1

Fed. R. Civ. P. 23 2

Adult Authority Policy Statement No. 16 
(June 19, 1964) 10

Vll



Page

Adult Authority Resolution No. 216 
(June 5, 1964) 10

California Penal Code, Section 2924 29
Federal Bureau of Prisons, 
Policy Statement No. 7400.6 
(Dec. 1, 1966) 22,30 f.

San Quentin Institution Plan, 
Section ID-III-02 17,26

OTHER AUTHORITIES

Hirschkop & Milleman, The Unconstitutionality 
of Prison Life, 55 Va. L. Rev. 795 (1969) 30

Jacob and Sharma, Justice After Trial: 
Prisoners' Need for Legal Services in 
the Criminal-Correctional Process,
18 Kan. L. Rev. 493 (1970) 22

New York Atty. Gen. Op. 409/70,
Feb. 11, 1971; 8 Cr. L. Rptr. 2486 39
President's Commission on Law Enforcement 
and Administration of Justice, Task 
Force Report, Corrections, 13 (1967) 35
President's Commission on Law Enforcement 
and Administration of Justice, Task 
Force Report, Corrections, 86 (1967) 22,23,30
Tobriner, Due Process Behind Prison Walls, 
The Nation, Oct. 18, 1971. 4

viii



IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

No. 71-2357

RAYMOND J. PROCUNIER, et al.,
Defendants-Appellants,

v s .

JOHN WESLEY CLUTCHETTE, et al.,
Plaintiffs-Appellees.

On Appeal from the United States District Court 
for the Northern District of California

BRIEF FOR APPELLEES

STATEMENT OF THE CASE

This is a civil action under 42 U.S.C. Section 1983, 
brought by state prisoners seeking relief for deprivation of 
constitutional rights secured by the due process and equal 
protection clauses of the Fourteenth Amendment.

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Plaintiffs are California prisoners confined at 
San Quentin State Prison. Plaintiffs brought this action 
on their own behalf and, pursuant to Rule 23 of the Federal 
Rules of Civil Procedure, on behalf of all other inmates 
of San Quentin affected by the disciplinary practices and 
punishments challenged in this case.

An evidentiary hearing was held on December 4,
1970, where the court heard live testimony from a prison
administrator and received certain documentary evidence.
After extensive briefing, the court below rendered a decision

1/(CR 118), now reported at 328 F.Supp. 767, granting 
plaintiffs (1) a declaratory judgment that the disciplinary 
procedures followed at San Quentin were constitutionally 
defective where certain serious punishments were imposed on 
prisoners, (2) an injunction against further disciplinary 
hearings under such defective procedures, (3) an injunction 
expunging punishments imposed on the individual plaintiffs, 
and (4) an injunction requiring the defendant prison officials 
to submit a new plan for the conduct of disciplinary 
proceedings in accordance with the court's decision.
Execution of the judgment was stayed pending appeal, except 
for the portion requiring submission of a new disciplinary 
plan. The officials sought a stay of this provision, which

1/ "CR" refers to the Clerk's Record on Appeal.

V
-2-



was denied by this Court on September 13, 1971, and rehearing 
en banc was denied on October 18, 1971.

STATEMENT OF FACTS

The appellant prison officials do not challenge
any of the findings of fact made by the district court. The
court's extremely thorough findings are all amply supported

2/
by the evidence.

ISSUES PRESENTED

1. Whether the consequences of disciplinary 
proceedings at San Quentin are sufficiently serious to 
require procedural safeguards against error or arbitrariness.

2. Whether the disciplinary fact-finding 
procedures followed at San Quentin meet rudimentary standards 
of due process.

3. Whether a prisoner may be subjected to 
disciplinary punishment for conduct that constitutes a crime 
and that may be referred to the district attorney for 
prosecution unless he is provided at the hearing with counsel 
and with the right to cross-examine and call witnesses.

2/ Citations to the record supporting all of the district 
court's findings are contained in our post-hearing 
memorandum filed December 22, 1970, at pp. 50-65 of the 
Clerk's Record.

-3-



ARGUMENT

I. Introduction

In discussing the general problem in this case,
and the decision below in particular, Justice Mathew Tobriner
of the California Supreme Court stated the precise issue
before this Court: "Will inmates be accorded a due process
hearing before being subjected to disciplinary penalties
which are not only onerous in themselves but usually result

1/in an extension of the prison term?"

The issue is an important one because "under our 
constitutional system, the payment which society exacts for 
the transgression of the law does not include relegating the 
transaressor to arbitrary and capricious action." Landman

4/v. Peyton, 370 F.2d 135, 141 (4th Cir. 1966). Indeed, the

3/ Tobriner, Due Process Behind Prison Walls, The Nation, 
October 18., 1971, 367 , 369. Because of its relevance 
to this case, Justice Tobriner's article is reproduced 
in full as an Appendix to this brief.

£/ The Attorney General states that in reviewing prison
disciplinary proceedings the courts should only require 
a "clear showing that the punishment was not imposed 
arbitrarily or capriciously" (appellants' brief, pp. 11-12). 
This may be true as to a particular punishment, but it 
seems inappropriate for the courts to sit in review of 
individual disciplinary decisions of all kinds. We submit 
that the proper judicial function is to insure that 
constitutionally sound procedures are followed in the administration of discipline; if the institution 
"established internal procedures for reviewing its own 
decisions and redressing grievances it could largely 
eliminate any occasion for judicial challenges, and any 
residual litigation could be readily disposed of on summary 
judgment." Covington v. Harris, 419 F.2d 617, 627 
(D.C. Cir. 1969) (Bazelon, J.).

-4-



courts have a
"duty to protect the prisoner from unlawful 
and onerous treatment of a nature that, of 
itself, adds punitive measures to those 
legally meted out by the court. . . . Any
further restraints or deprivations in 
excess of that inherent in the sentence 
and in the normal structure of prison life 
should be subject to judicial scrutiny."
Jackson v. Godwin, 400 F.2d 529, 532, 535 
(5th Cir. 1968) .

In Nolan v. Scafati, 430 F .2d 548 (1st Cir. 1970),
the court pointed out that procedural safeguards are required
whenever prison authorities may impose a serious punishment
upon a prisoner charged with violating a prison rule.
Admittedly, the question of what punishments are serious
enough to require what procedural safeguards was "largely
unexplored." 430 F.2d at 550. As the Second Circuit has
acknowledged, there is no doubt that prisoners are entitled
to due process in prison disciplinary proceedings: "The
difficult question, as always, is what process was due."
Sostre v. McGinnis, 442 F .2d 178, 196 (2d Cir. 1971),

5/
petition for cert, pending.

5/ The Court in Sostre reversed a district court decision 
requiring "trial-type" procedural safeguards in "every" 
prison disciplinary proceeding, and declined to state 
whether prisoners were entitled to more than "adequate 
notice," an opportunity to reply to the charges, and 
"reasonable investigation into the relevant facts."
442 F.2d at 203. "[Djecision as to what are wholly 
acceptable minimum standards [of procedural due process] 
is left for another day through case-by-case development." 
Id. at 206. The Court's reluctance to decree general 
procedural protections was undoubtedly influenced by the 
(continued on next page)

-5-



The appellee prisoners in this case do not dispute 
the authority of prison officials to administer prison 
discipline. The necessity for, or the appropriateness of 
disciplinary controls is not an issue in this case. The 
court below gave full deference to the judgment of prison 
officials as to the type of prisoner conduct requiring 
disciplinary controls and the kinds of disciplinary 
punishments that may be imposed. The narrow issue here is 
whether prisoners must be afforded procedural safeguards 
essential to a fair factual determination before they can 
be subjected to punishments substantially altering the nature 
of their imprisonment or prolonging the term of their 
incarceration.

We do not propose that a full panoply of procedural
6/

safeguards should be required in every case. The district

5/ (continued)
record -- there were no disputed facts in the punishment 
of the individual prisoner and the record did not establish 
systematic procedural deficiencies. Also, Sostre was not 
a class action and did not involve any disciplinary 
proceedings of other prisoners. See Landman v. Royster,
___ F.Supp. ___, No. 170-69-R (E.D. Va. Oct. 30, 1971).

6/ Where the prisoner pleads guilty to the charge, or there 
are no disputed facts, for example, many safeguards 
designed to insure accurate fact-finding are not required. 
In no event do we contend that a prison disciplinary 
proceeding must be conducted like a criminal trial. Thus, 
we do not contend that there, should be a jury trial or 
even a judge, that rules of evidence must be followed, 
that guilt must be proved beyond a reasonable doubt, that 
a verbatim transcript must be made and preserved, etc.
But in no case can the rudimentary safeguards of notice 
and a fair hearing be dispensed with.

-6-



court followed the approach of requiring fair procedures 
only where warranted by the severity of the consequences 
which may flow from a finding of guilty; the possible range 
of punishments must be evaluated. Cf. Duncan v. Louisiana,
391 U.S. 145, 159-160 (1968); Nolan v. Scafati, 430 F.2d 548
(1st Cir. 1970). Accordingly, the court considered (1) the 
consequences of San Quentin disciplinary proceedings and 
(2) the procedural safeguards appropriate to such proceedings.

II. The Consequences Of Disciplinary Proceedings At 
San Quentin Are Sufficiently Serious To Require 
Procedural Safeguards Against Error Or Arbitrariness.

As the district court found, the most serious 
disciplinary punishments that follow a finding of guilt 
of some prison infraction are (a) sentence to isolation,
(b) confinement to the Adjustment Center or segregation,
(c) referral to the Adult Authority, (d) assessment of damages 
or forfeiture of earnings, and (e) referral to the District

VAttorney for prosecution.

7/ The Attorney General discusses only the disciplinary
proceedings in the case of individual plaintiff Clutchette, 
stating the officials' version of the incident and 
concluding that Clutchette suffered only minor changes 
in his status —  transfer to isolation and loss of several 
privileges —  as a result of the proceedings (appellants' 
brief, p. 4). This overlooks not only the fact that 
Clutchette's detailed affidavit (P. Exh. 1) sets forth 
a very different version of what actually happened but 
the crucial considerations that (1) this is a class action 
involving punishments that may be imposed on all San 
(continued on next page)

-7-



(a) Sentence to Isolation

Isolation is a form of solitary confinement. The 
prisoner is transferred from the general prison population 
to an extremely restrictive form of confinement that cuts 
him off from all prison programs and other prisoners. The 
harsh conditions of life in isolation are described in detail 
in the district court's findings (CR 130-132).

(b) Confinement to the Adjustment Center or Segregation

Although confinement to isolation could not exceed 
thirty days, confinement to the Adjustment Center or segregation 
could be indefinite. Indeed, as the district court found, a 
prisoner could remain there for the duration of his sentence. 
Again, such confinement operates to isolate the prisoner 
from all prison programs and meaningful contact with other 
prisoners. The conditions of life in the Adjustment Center 
or segregation are described in factual detail by the district 
court (CR 132-133).

Confinements to isolation, the Adjustment Center or 
segregation radically alter the nature of a man's imprisonment. 
This has been recognized by federal courts throughout the

7/ (continued)
Quentin prisoners regardless of their status, and (2) the 
principal factor in judging what procedural safeguards 
are required is the possible range of punishments that 
may be imposed, not simply the punishment imposed in a 
particular case. Cf. Duncan v. Louisiana, supra, 391 U.S. 
at 159-160.

-8-



country and it is now well established that disciplinary
confinement cannot be imposed without rudimentary procedural
due process. See Landman v. Royster/ ___ F.Supp. ___,
No. 170-69-R (E.D. Va. Oct. 30, 1971); Bundy v. Cannon,
328 F.Supp. 165 (D. Md. 1971); Meola v. Fitzpatrick, 322
F.Supp. 878 (D. Mass. 1971); Wright v. McMann, 321 F.Supp.
127 (N.D. N.Y. 1970); Carothers v. Follette, 314 F.Supp.
1014 (S.D. N.Y. 1970); cf. Williams v. Robinson, 432 F.2d
637 (D.C. Cir. 1970); Nolan v. Scafati, 430 F.2d 548 (1st Cir.

£/
1970); Morris v. Travisono, 310 F.Supp. 857 (D. R.I. 1970).

Moreover, the California Director's Rules state 
that assignment to segregation or the Adjustment Center 
signifies that an inmate is regarded as "a menace to himself 
or others, or to property, or to the morale of the general 
population" (D4205). Thus, such confinement will almost 
inevitably result in denial of parole because the implication 
of incorrigibility cannot be overlooked by the Adult Authority. 
As one federal court remarked, assignment to segregation is 
serious not only because of the harsh conditions but because

8/ Compare Dabney v. Cunningham, 317 F.Supp. 57 (E.D. Va.
1970)(prisoner ordered released from punitive segregation 
because the officials made no showing of a factual basis 
to justify such confinement); Carter v. McGinnis, 320 
F.Supp. 1092, 1097 (W.D. N.Y. 1970) (segregation justified
only "if substantial evidence indicates a danger to the 
security of the inmates or the facility"); Davis v. Lindsay, 
321 F.Supp. 1134 (S.D. N.Y. 1970) (isolation not justified
where no proof of actual threats of either disruption or 
danger to the prisoner or to other prisoners).

-9-



it deprives the inmate "of the opportunity to appear under 
more favorable circumstances before the parole board for 
consideration for release on parole." Carothers v. Follette, 
314 F.Supp. 1014, 1027 (S.D. N.Y. 1970); see also United
States ex rel Hancock v. Pate, 223 F.Supp. 202 (N.D. 111. 1963)

(c) Referral to the Adult Authority

Resolution No. 216 (June 5, 1964) of the California 
Adult Authority requires that a report of all disciplinary 
actions be presented to the Adult Authority at the time it 
makes its annual decision whether to set the term of a

V
prisoner's sentence and grant parole (CR 134; RT 33, 68).
A report of a serious disciplinary infraction will have an
obvious effect on the Adult Authority's determination. As
the district court found, a prisoner's behavior in prison is
a key factor in the Adult Authority's decision-making process

10/
(CR 134).

In addition, if the prisoner is found guilty of a 
disciplinary offense occurring after the Adult Authority has 
fixed the sentence and parole date, the offense must be 
reported to the Adult Authority for immediate action (RT 33, 68

9/ "RT" refers to the Reporter's Transcript of the hearing 
held on December 4, 1970.

10/ Where the Adult Authority declines to grant parole at
an annual appearance, its policy is to postpone further 
appearance for at least one calendar year. Adult 
Authority Policy Statement No. 16, issued June 19, 1964. 
A disciplinary infraction may thus cause a prisoner to 
serve at least one additional year in prison.

-10-



The disciplinary committee is authorized to recommend that
the Adult Authority rescind the parole date (CR 134-135;
RT 49). The California Supreme Court has held that a single
disciplinary offense is sufficient cause for the Adult
Authority to rescind the parole release order and reset the
prisoner's sentence at the statutory maximum. In re McClain,
55 Cal.2d 73, 9 Cal. Rptr. 824 (1960). Because such a
disciplinary finding can be used as the factual predicate
for rescinding parole and refixing the prisoner's sentence
at the maximum, thus extending the term of incarceration,
the prisoner is entitled to have the fact-finding made in a
procedurally fair and reliable way. Cf. Specht v. Patterson,
386 U.S. 605 (1967); Baxstrom v. Herold, 383 U.S. 107 (1966);
United States v. Weston, ___ F.2d ___, No. 26,850 (9th Cir.
Sept. 3, 1971); Schuster v. Herold, 410 F.2d 1071 (2d Cir.),
cert, denied, 396 U.S. 847 (1969); United States ex rel
Campbell v. Pate, 401 F.2d 55, 57 (7th Cir. 1968); United
States ex rel Hancock v. Pate, 223 F.Supp. 202 (N.D. 111.-------------------------  ----
1963); In re Gary W , 5 Cal.3d 296, ___Cal. Rptr. ____ (1971).

(d) Assessment of Damages or Forfeiture of Earnings

Another of the possible sanctions that the 
disciplinary committee can impose is to levy upon the earnings

11/ As this Court's recent decision in Weston indicates,
protection against factually unjustified sentence extensions 
applies even in the judicial sentencing process and not 
only in fact-finding proceedings. See also Townsend v. 
Burke, 334 U.S. 736 (1943).

-11-



of a prisoner to pay for repair costs of any property damaged. 
The committee can also recommend that a prisoner's future 
wages be forfeited, regardless of whether there is any 
property damage. The latter sanction is, in effect, a fine 
(CR 135). The San Quentin Institution Plan permits assessments 
for amounts up to $100 by a hearing officer acting alone 
(ID-III-08), while the disciplinary committee is authorized 
to impose assessments in excess of that amount and, in effect, 
to garnishee the inmate's future earnings to cover the 
assessment (Id.).

In Sniadach v. Family Finance Corp., 395 U.S. 337 
(196 9) , the Supreme Court held that garnishment of wages 
without prior notice and hearing violated due. process. In 
his concurring opinion, Justice Harlan said that

"Due process is afforded only by the kinds 
of 'notice' and 'hearing' which are aimed 
at establishing the validity, or at least 
the probable validity, of the underlying 
claim against the alleged debtor before 
he can be deprived of his property or its 
unrestricted use." 395 U.S. at 343-- /

12/ In Klim v. Jones, 315 F .Supp. 109 (N.D. Cal. 1970), the
court held that the Sniadach principle applied to the 
taking of property in other situations besides garnishment, 
when the deprivation would cause hardship to the individual. 
There could be no clearer example of the state's stripping 
an individual of everything he owns than where prison 
officials order the forfeiture of an indigent prisoner's 
savings or earnings.
In Sniadach, the Supreme Court noted that there may be 
extraordinary situations in which deprivation of property 
by summary administrative action without an adequate prior 
hearing may be justifiable because it Is essential to 
(continued on next page)

-12-



(e) Referral to the District Attorney for Prosecution

Many disciplinary offenses also constitute crimes.
For example, inmates can be charged in,'disciplinary proceedings 
with assault on another inmate, assault on a guard, possession 
of a weapon, gambling, possession of drugs, escape, etc., all 
of which may be prosecuted as crimes. On the basis of its 
findings, the disciplinary committee may refer the case to 
the district attorney for prosecution (CR 127-28, 135-37).

Disciplinary charges involving conduct that may 
be prosecuted as a crime are obviously serious enough to 
require procedural safeguards. Because special considerations 
require separate treatment of this kind of disciplinary 
offense, we discuss this issue in detail in Point IV below.

*  *  *

To sura up, in the five types of serious disciplinary 
cases identified by the district court, the consequences to 
the prisoner require rudimentary procedural safeguards against 
error or arbitrariness. We do not understand the Attorney 
General seriously to contend otherwise. The only substantial

12/ (continued)
protect a vital governmental interest (395 U.S. at 343). 
However, even assuming arguendo that emergency conditions 
might sometimes justify other types of summary action by 
prison officials (e.g. isolating prisoners leading an 
Insurrection), there is no conceivable situation in which 
the summary forfeiture of money is essential to protect 
any legitimate penal interest. Cf. WTilliams v. Robinson, 
432 F .2d 637, 644 (D.C. Cir. 1970).

-13-



question on this appeal is what specific safeguards are 
appropriate. We turn, then, to a consideration of the 
procedures actually followed at San Quentin and the safeguards 
ordered by the district court.

Ill. The Current Disciplinary Procedures At San Quentin 
Are Inadequate To Ensure Reliable Fact-Finding.

Disciplinary proceedings at San Quentin are marked 
by many of the trappings of a judicial proceeding, without 
any of its procedural safeguards. The Institution Plan 
speaks in terms of "disciplinary hearing courts," of 
"charges," "pleas" and "adjudication" but mandates none of 
the procedures generally regarded as essential to a fair

13/and reliable fact-finding.

In Goldberg v. Kelly, 397 U.S. 254 (1970), the
Supreme Court held that rudimentary procedural safeguards 
are constitutionally required whenever the state proposes 
to act in a way that will adversely affect an important 
individual interest. The Supreme Court stated that a welfare 
recipient threatened with loss of his benefits had sufficient 
interest, as against the government's interest in summary 
adjudication, to be entitled to a hearing before termination

13/ As one federal court remarked in striking down similar
New York procedures, disciplinary courts are "practically 
judicial"; disciplinary officials "really assume the 
function of a Judge." Wright v. McMann, 321 F .Supp. 127, 
141, 143 (N.D. N.Y. 1970).

-14-



with (1) adequate prior notice; (2) an impartial tribunal;
(3) the right to representation or assistance; (4) the right 
to confrontation or cross-examination of adverse witnesses 
and to call favorable witnesses; and (5) a reasoned decision

14/based solely on evidence adduced at the hearing. The
Court emphasized that these were no more than "minimum
procedural safeguards" for a pre-termination hearing; because
a full statutory "fair hearing" would be held later on, the
safeguards enumerated by the Court were only those "demanded

15/
by rudimentary due process." 397 U.S. at 266-67.

14/ See also Bell v. Burson, 402 U.S. 535 (1971) (hearing
required for suspension of driver's license); Wisconsin 
v. Constantineau, 400 U.S. 433 (1971) (hearing required 
before habitual drunkard could be publicly exposed); 
Sniadach v. Family Finance Corp., 395 U.S. 337 (1969)
(hearing required before wage garnishment); Escalera v.
New York City Housing Authority, 425 F .2d 853 (2d Cir.
1970) (procedural rights of public housing tenants 
threatened with eviction).

15/ The Attorney General misreads Goldberg when he suggests 
that fair procedures were required there only because 
the withdrawal of government benefits affected the 
recipient's very means to live (appellants' brief, p. 7). 
The Court in Goldberg made plain that procedural due 
process applies to denial of a variety of government 
benefits such as tax exemptions, public employment, etc.
397 U.S. at 262. The Court pointed out that some kinds 
of benefits may be terminated without a pre-termination 
hearing, and the issue in Goldberg was whether the 
possible loss to the individual required a due process 
hearing prior to termination. 397 U.S. at 260, 264. Because 
of threatened irreparable injury to the individual, a 
pre-termination hearing was required even though a full 
and fair hearing was mandated in any event for final 
termination. 397 U.S. at 260, n.7. Similarly, the 
threatened injury to a prisoner charged with a disciplinary 
(continued on next page)

-15-



The court below found that similar safeguards were 
appropriate to prison fact-finding hearings where very serious 
punishments could be imposed. Accord, Landman v. Royster,
___ F.Supp. ___, 40 U.S.L.W. 2256, No. 170-69-R (E.D. Va.
Oct. 30 , 1971). We-will consider separately the components 
of procedural due process required by the district court, and 
discuss why they are necessary and appropriate in this case.

1. Notice

The only notice given San Quentin inmates accused
of a disciplinary offense does not fairly inform them of the
specific misconduct with which they are charged and thus does
not permit the preparation of a defense. The accused may be
given a written "Notice of Complaint," but ail it includes is
the number and title of the rule the prisoner is charged with
having violated; it does not describe the actual misconduct
charged or the particular facts to be proved. Thus, it may
only state "D1201, Inmate Behavior" or "D1202, Disobeying

16/Order," without explication. There need be no hrnt of

15/ (continued)
offense requires a prior hearing; a post-punishment 
hearing would provide no protection at all against 
undeserved punishments like isolation, segregation 
and postponement of parole.

16/ A prison administrator testified that the Notice states 
"exactly what the charge is" CRT 19). But, as the 
Notice in evidence (.Court's Exh. 2) shows, he referred 
only to the "number of the director's rule and then 
what the title is" (JRT 20), not the facts of the alleged 
offense. The court below properly found that the only 
notice given was the uninformative number and general 
title (CR 126).

-16



the act or behavior considered to violate some broad general 
17/

rule (CR 126).

Notice of the charge is so fundamental a part of 
due process that discussion of it seems superfluous. Any 
hearing conducted without prior notice to the person whose 
interest may be adversely affected would be a sham. See 
Escalera v. New York City Housing Authority, 425 F .2d 853 
(2d Cir. 1970). We would not expect the prison officials 
to quarrel with this notion.

There is no reason why the Notice of Complaint
given to the prisoner could not contain the same information
as the CDC Form 115, which the prisoner is not permitted to
see. Since preparation of Form 115 is the first step in
serious cases and is prepared before the Notice of Complaint
is issued, incorporating the Form 115 information in the
Notice of Complaint (or simply giving the prisoner a copy of
the Form 115) would not require any additional work by staff 

18/
members. Written notice of the charge has been required

17/ Yet prison administrators do know how to demand specificity. 
Institution Plan Section ID-III-02 instructs staff members 
that every CDC Form 115 disciplinary report (which is 
not shown to the inmate) must meet these requirements: 
"Complete, Concise, Clear, and Correct, as well as 
detailing What, When, Where, Who and Why."

18/ It should be noted that the record before this Court does 
not establish, that eyen the Inadequate notice required 
by the San Quentin Institution Plan Is actually given in 
every case. Plaintiff Clutchette's affidavit states that 
he received no written notice at all (P. Exh. 1).

-17-



not only by the court below in this case, but also by the
well-reasoned decision in Landman v. Royster, ___ F.Supp. ___,
40 U.S.L.W. 2256, No. 170-69-R (E.D. Va. Oct. 30, 1971), and 
adequate notice has been required by all the authorities 
cited in text at note 8 , supra.

2. Impartial Tribunal

The San Quentin disciplinary procedures do not 
preclude the officer accusing the prisoner from sitting on 
the adjudicatory tribunal (CR 127). Although a prison 
administrator acknowledged that this was undesirable, it in 
fact occurred in plaintiff Clutchette's case, when a 
lieutenant whose report was part of the evidence also sat 
on the disciplinary committee and when Associate Warden Park, 
whose report was also part of the evidence, was consulted as 
to the proper disposition and then "reviewed" and approved 
the disposition (RT 12, 30, 39-40, 68).

The requirement of an impartial tribunal is 
fundamental to American notions of fair play. A hearing 
before the inmate's accuser is tantamount to no hearing at
all. See Landman v. Royster, ___ F.Supp. __, 4 0 U.S.L.W.
2256, No. 170-69-R (E.D. Va. Oct. 30, 1971); Bundy v. Cannon, 
328 F.Supp. 165 CD. Md. 1971); cf. Goldberg v. Kelly, 397 
U.S. 254 C1970); Escalera v. New York City Housing Authority,

425 F .2d 853 C2d Cir. 1970); Carothers v. Follette, 314 F.Supp.

-18-



1014 (S.D. N.Y. 1970) ("relatively objective tribunal").
Yet procedures at San Quentin deny the inmate a finding by 
an impartial tribunal. We do not here contend that hearing 
officers from outside the institution must be provided, as 
in Bundy v. Cannon, supra. We simply say that the same man 
cannot be permitted both to accuse and to judge.

3. Counsel, Staff Or Other Assistance

The prisoner's right to be heard by the disciplinary 
committee is often meaningless unless he has the assistance 
of some other person who can aid him in marshalling the facts 
or arguing in mitigation. Prison inmates come from the least 
educated segment of our society and are ill-equipped to make 
a convincing presentation of their version of the facts.
This is particularly true if the prisoner is inarticulate, 
frightened or inexpert in English.

Moreover, prisoners accused of a disciplinary 
offense may be placed in isolation for the entire period 
between the time of the alleged offense and the hearing,

19/

19/ Even where the decisionmaker is a judge who is presumably 
able to put aside extraneous influences, the Supreme 
Court has held that participation in the accusatory 
process disables the judge from being "wholly 
disinterested" in the accused’s case. See Mayberry v.
Pennsylvania, 400 U.S. 455, ___ (1971); In re Murchison,
349 U.S. 133, 137 (1955); cf. Berryhill v. Gibson, ___
F.Supp. ___, 40 U.S.L.W. 2147 (M.D~ Ala. Sept. 3, 1971)
(3-judge court). There is no reason to believe that 
prison officials are more able than judges to resist 
tendencies to prejudge the facts.

-19-



thus rendering it impossible to prepare any defense without
the assistance of someone free to carry on an investigation

2 0/
(CR 126). This "counsel" can interview the inmate to
learn his version of the facts, attempt to corroborate it 
through questioning others, and then assist the inmate at 
the hearing.

Further, counsel could perform an important
(although non-adversarial) function by analyzing and
organizing relevant information bearing on the occurrence
or non-occurrence of the facts in issue, and by presenting
"mitigating circumstances and hidden significances not
revealed or immediately obvious on the face" of the
disciplinary report. Cf. United States ex rel Bey v.
Connecticut State Board of Parole, 443 F.2d 1079, 1087
(2d Cir. 1971); Mempa v. Rhay, 389 U.S. 128 (1967). Counsel
could also suggest that the facts do not justify imposing
the most severe punishments in the committee's arsenal of
authorized sanctions, although they might justify a lesser

21/
punishment. Bey, supra, at 1088.

20/ A prison administrator testified that no prison rule 
would prohibit an inmate from presenting written 
statements of witnesses to the alleged infraction but, 
assuming this is true, there is no way that an inmate 
confined to isolation could, without assistance, obtain 
such statements.

21/ As the court noted in Carothers v. Folletta, 314 F .Supp.
1014 CS.D. N.Y. 1970), a disciplinary proceeding conducted 
with regard for due process "may' then well result in a 
much lighter sentence."

-20-



The disciplinary committee could of course limit 
the function of counsel so as not to disrupt or prolong 
proceedings. Id. at 1089. By his presence alone, counsel 
can increase the fairness and thus improve the reliability 
of the findings without transforming the hearing into a 
full-scale adversary proceeding. Cf. United States v. Wade, 
383 U.S. 218, 238 (1967); Memoa v. Rhay, supra.

San Quentin prisoners accused of disciplinary 
offenses, no matter how serious, are not permitted to have 
counsel of any kind (CR 128). The court below required the 
prison officials to furnish counsel or "counsel substitute" 
depending on the seriousness of the disciplinary charge.
Where the inmate is charged with conduct that would constitute 
a crime in thq free world, the court below held that Miranda 
v. Arizona, 384 U.S. 436 (1966), requires that interrogation
in disciplinary proceedings cannot take place unless the 
prisoner is furnished with state-appointed counsel. This 
point is considered separately and in detail under Point IV 

below.

In cases where prisoners are charged with conduct
which would not be criminal in the free world, but wnich may
lead to serious disciplinary punishment, the court below

22/
held that "counsel substitute" may be adequate. See also

22/ Plaintiff Clutchette, of course, had an attorney who
requested to be present at the disciplinary hearing but 
was refused. But it will be the rare prisoner who has 
retained counsel, and the possibility of providing some 
lay advisor must be explored.

-21-



Landman v. Royster, ___ F.Supp. ___, 40 U.S.L.W. 2256,
No. 170-69-R (E.D. Va. Oct. 30, 1971). Thus, it would be
helpful to have the assistance of a staff member, a law
student or oven a fellow inmate to assist in preparing a
defense. Assistance and representation by staff members at

23/
disciplinary hearings is provided for in federal prisons,

24/ 25/
in Rhode Island and in Maryland. Other sources of

26/
non-attorney assistance might include law students. Legal 
assistance by fellow inmates is another possibility; this 
has been sanctioned by the Supreme Court in Johnson v. Avery, 
393 U.S. 483 (1969), authorized in Maryland, Bundy v. Cannon, 
328 F.Supp. 165 (D. Md. 1971), and ordered in Virginia, 
Landman v. Royster, supra.

Counsel in serious disciplinary cases is not 
inconsistent with correctional goals. The President's 
Commission on Law Enforcement and Administration of Justice 
thoroughly considered this problem and recommended that where 
disciplinary charges may lead to an increase in the actual 
length of imprisonment,

23/ See Federal Bureau of Prisons, Policy Statement No. 7400.6 
(Dec. 1, 1966).

24/ See Morris v. Travisono, 310 F.Supp. 857 (D. R.I. 1970).
25/ See Bundy v. Cannon, 328 F.Supp. 165 CD. Md. 1971).
26/ Many law schools now have prison legal assistance programs 

that take law students into the prisons. See generally 
Jacob and Sharma, Justice After Trial: prisoners1 Need
for Legal Services in the Criminal-Correctional Process,
18 Kan. L. Rev. 493 U970).

-22-



"the prisoner should be given reasonable 
notice of the charges, full opportunity 
to present evidence and to confront and 
cross-examine opposing witnesses, and the 
right to representation by counsel. Task 
Force Report: Corrections, 86 (.1967)
(emphasis added]-!

Counsel of some kind is clearly required for San 
Quentin disciplinary hearings. Because the right to counsel 
is central to "the very integrity of the fact-finding process," 
the Supreme Court's decisions establishing that right in the 
criminal context have been applied retroactively. See, e.g. 
McConnell v. Rhay, 393 U.S. 2 (1968). The Attorney General 
in this case does not urge that representation in San Quentin 
proceedings would not improve the reliability of the fact­
finding, would be inappropriate to the nature of the proceeding

27/
or would unduly burden the administrative staff. The
Attorney General does rely on decisions holding that there 
is no right to counsel in parole revocation cases, e.g.
Ellhamer v. Wilson, 445 F.2d 856 (9th Cir. 1971), and argues 
that little due process is required to cancel an inmate's

27/ The prison officials offered no evidence that any of
the procedural safeguards ordered by the district court: 
would be unfeasible to implement. The record shows that 
the disciplinary committee hears an average of only 7 
cases a week (CR 127). The record does not show how many 
of these involve guilty pleas or how many inyolve disputed 
issues of fact. Providing fairer procedures for the 
small number of serious cases where there are factual 
disputes would not seem to present difficult administrative 
problems. It Is open to the officials to establish 
different procedures for different categories_of cases 
in their disciplinary plan submitted to the district court 
(CR 149-150).

-23-



"privilege, conditioned on good behavior, of being confined
under less onerous conditions" (appellants' brief, pp. 5, 6).
This contention must be rejected. The cases denying
procedural rights in parole revocation rely on the theory
that a parolee is in custody and it is a matter of "grace"
that he is permitted to serve part of his sentence outside
of prison. See, e.g. Mead v. California Adult Authority,
415 F .2d 767 (9th Cir. 1969), relying on Williams v. Patterson,
389 F.2d 374 (10th Cir. 1968). The reasoning in such cases
is that the normal status of the convicted person is in prison
and that since parole release is a matter of grace, it can be
revoked without ceremony. But this reasoning has no application
here. The normal status of a prisoner is not in isolation
or segregation. In California, as elsewhere, the normal
status of a prisoner is in the general inmate population where
he can participate in rehabilitative programs. He loses this
normal status only if he is found guilty of a disciplinary
infraction. Accordingly, the parole revocation decisions

2_8/
certainly do not govern here, and the Court should follow 
the approach of Goldberg and other cases requiring some form 
of representation in serious fact-finding hearings. 397 U.S. 
at 270.

28/ A further distinction from parole revocation Is that the 
parole decisionmakers are high-ranking authorities 
appointed by the Goyernor to perform the sensitive task 
of making parole decisions in light of all the relevant 
information. But disciplinary decisions are made by prison 
officers whose qualifications are unknown and who have no 
special distinction making them the safe repositories of 
arbitrary power.

24-



Confrontation and Witnesses4 .

At San Quentin, the "evidence" in a disciplinary
hearing consists of written reports. The.complaining guard
is not even required to be present at the hearing, much less
testify or be subject to cross-examination (CR 128). Indeed,
no witnesses at all are present, and the accused prisoner is
not entitled to call any witnesses on his own behalf. This
is true even where a prisoner is accused of a felony offense

29/
and exercises his right to remain silent (RT 115).

The right to confront one's accusers is essential 
where the facts are in dispute. Cf. Berger v. California,
393 U.S. 314 (1969); Pointer v. Texas, 380 U.S. 400 (1965).
Indeed, the right has been characterized by the Supreme Court 
as so essential to the "integrity of the fact-finding process 
as to require retroactive application in the criminal context 
Berger v. California, supra, 393 U.S. at 315. Of course the 
right is not limited to criminal cases but applies wherever 
governmental action seriously injures an individual and the 
reasonableness of the action depends on fact findings. See

29/ Where a possible felony is involved, the accused inmate 
is warned that anything he says to the disciplinary 
committee "can and will" be used against him in court 
(Court's Exh. 4). Such warnings are required by the 
California Supreme Court's decision in People v. Dorado, 
62 Cal.2d 338, 42 Cal. Rptr. 169 (1965). However, if
the prisoner chooses to exercise his right to remain 
silent, he is disabled from presenting any defense 
whatever to the disciplinary charge (RT 115). In such 
a case, the right to appear and be heard is worthless; 
the right to call witnesses is indispensable.

-25-



Willner v. Committee on Character and Fitness, 373 U.S. 96
--------------  -  3 0 /
(1963); Greene v. McElroy, 360 U.S. 474 (1959).

Face-to-face with the individual who must suffer 
the consequences if he has exaggerated, lied or omitted 
modifying details, a prison guard (like any other man) will 
be more careful about the facts than when he is dictating 
an impersonal written report. The instruction contained in 
the San Quentin Institution Plan directing guards to be 
"concise" in preparing Form 115 reports, while commendable 
in some respects, can encourage a tendency to oversimplify 
and omit details whose unperceived significance might prove 
crucial when seen from a more detached point of view.

Prison guards are no less fallible than other men, 
and it is possible that their perceptions may be faulty or 
their judgments influenced by personal friction with the 
accused inmate. Their reports are not entitled to an 
"irrebuttable presumption of accuracy" and it is important

30/ "Certain principles have remained relatively immutable 
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, prejudice, or 
jealousy. We have formalized these protections in the 
requirements of confrontation and cross-exaa?.ination." 
Greene v. McElroy, 360 U.S. at 496.

-26-



that they be subjected to "examination, criticism and 
refutation." Cf. Kent v. United States, 383 U.S. 541, 551
(1966); United States v. Weston, ___ F.2d ___, No. 26,850
(9th Cir. Sept. 3, 1971); United States ex rel Bey v.
Connecticut State Board of Parole, 443 F .2d 1079, 1087

31/
(2d Cir. 1971).

Further, disciplinary charges are often originated 
not by guards but by other prisoners, wno may complain about 
an assault, or gambling or some other infraction not witnessed 
by a guard. Under San Quentin practice, with reliance solely 
on written reports, the disciplinary committee does not even 
have the opportunity to judge the credibility of the 
complaining witness, whether a guard or a prisoner. But 
"one of the important objects of the right of confrontation 
was to guarantee that the fact finder had an adequate 
opportunity to assess the credibility of witnesses." See

31/ The Attorney General relies on Williams v. New York,
337 U.S. 241 (1949), for the proposition that confrontation
and cross-examination are not required (appellants' brief, 
p. 10, n.7). Williams held only that use of a probation 
report as an aid to the sentencing judge does not deny 
due process. Compare this Court's recent decision in 
United States v. Weston, supra. Whatever the result in 
judicial sentencing, where the judge has wide discretion 
in making an appropriate disposition after guilt has been^ 
found, the fact-finding process leading to the determination 
of guilt cannot .be held reliable without the rudimentary 
safeguarcjs of confrontation and cross-examination. See 
Gonzales v. United States, 348 U.S. 407, 412, n.4 (1955),
distinguishing Williams on the ground that it did not 
"involve individualized fact finding and classification, 
but. . .the exercise of judicial discretion in the 
imposition of sentence."

-27-



Berger v. California, 393 U.S. 314, 315 (1969); Barber v.
Page, 390 U.S. 719, 725 (1968). Fact-finding simply cannot
be reliable without confrontation.

It would not be necessary to accord prison inmates
the same right of cross-examination that is given criminal
defendants. It would be a considerable improvement over
current practice simply to require that the complaining guard
or prisoner be present to recount his version of the incident
in the accused's presence. With the aid of his "counsel,"
the inmate could then attempt to elicit clarification and

32/
additional detail concerning any disputed matters. This
would produce more precise information about what actually 
occurred. For example, an inmate charged with disobeying 
an order might be able to show that it had been unclear, or 
misunderstood. Away from the pressure of the situation in 
which the alleged violation occurred, a fair-minded guard 
may be expected to acknowledge the possibility of his own 
occasional error. Under current practice he is never given 
this opportunity. Indeed, the procedures give him^a 
conclusive presumption of veracity and accuracy.

32/ Of course, if the prisoner does not dispute any facts 
or pleads guilty, there is probably no occasion for 
cross-examination.

33/ While the disciplinary committee will probably resolve 
most guard-prisoner credibility issues in favor of the 
guard, current practice avoids credibility issues 
altogether by conclusively presuming the correctness 
of the cold words in the Form 115.

-28-



Cross-examination of adverse witnesses may, of 
course, be restricted "to relevant matters, to preserve 
decorum, and to limit repetition," but where the disciplinary 
case turns on an issue of fact the right to confront and
cross-examine is essential. Landman v. Royster, ___ F.Supp.
___, 40 U.S.L.W. 2256 , No. 170-6 9-R (E.D. Va. Oct. 30 , 1971)
(slip op. 66); see also Escalera v. New York City Housing 
Authority, 425 F .2d 853, 862 (2d Cir. 1970).

The accused inmate must also be allowed to call
34/

witnesses on his own behalf. A "hearing" cannot be
conducted on written reports, which most prisoners are 
ill-equipped to prepare. And "particularly where credibility 
and veracity are at issue. . .written submissions are a wholly 
insufficient basis for decision." Goldberg v. Kelly, 397 U.S. 
254, 269 (1970); Landman v. Royster, supra. Even if the 
accused's own version of the facts is true, he is likely to 
be disbelieved because of his strong interest in the outcome 
of the case; and he cannot count on a guard's admission of 
error. Unless the inmate is permitted to call witnesses, the 
only evidence before the committee is the "prosecution" 
version of the case. Such a one-sided presentation of

34/ Under the statutory good time credit scheme applicable 
to those sentenced prior to January 1, 1948, California 
prisoners facing the loss of credit as the result of 
disciplinary charges were entitled to present evidence 
and call witnesses on their own behalf. Penal Code 2924. 
Although the provision is largely obsolete today, it 
stands as evidence that the right to call witnesses was 
not regarded as incompatible with the orderly 
administration of prison discipline.

-29-



evidence would not be tolerated in any other kind of fact­
finding proceeding. There is no reason to tolerate it here.
In federal prisons, accused prisoners facing a serious 
disciplinary charge may call witnesses if it appears that 
the facts are reasonably in dispute. See Federal Bureau 
of Prisons, Policy Statement No. 7400.6 (Dec. 1, 1966).
Prisoners in Rhode Island are also permitted to call witnesses. 
See Morris v. Travisono, 310 F.Supp. 857 (D. R.I. 1970). 
Prisoners in Maryland may call and cross-examine witnesses 
in serious cases. See Bundy v. Cannon, 328 F.Supp. 165, 176 
(D. Md. 1971). And, as noted above, the President's Crime 
Commission advocates a right to confront and call witnesses.
Task Force Report, Corrections, at 86. Mr. James V. Bennett, 
former Director of the Federal Bureau of Prisons, has testified 
that such protections are "an essential ingredient to good 
discipline." Hirschkop & Milleman, The Unconstitutionality 
of Prison Life, 55 Va. L. Rev. 795, 831, 834 (1969). The
court in Landman v. Royster, ___ F.Supp. ___, 40 U.S.L.W.
2256, No. 170-69-R (E.D. Va. Oct. 30, 1971), ordered essentially 
the same procedural safeguards as the district court in this 
case, finding that they are "necessary and will not unduly 
impede legitimate prison functions." See also Bundy v. Cannon, 
328 F.Supp. 165, 173 (D. Md. 1971)(prison officials promulgated 
new procedures they deemed "practicable").

-30-



5. A Reasoned Decision Based On The 
Evidence Adduced At The Hearing

At San Quentin, the disciplinary committee is not 
prohibited from considering evidence outside the record 
(CR 128). A prison administrator testified that he felt 
free to take into account ex parte information casually 
passed along by prison inmates (RT 25). Moreover, the 
disciplinary committee is not told what standard of proof 
is required to find guilt. The San Quentin Disciplinary 
Plan does not specify any standard of proof (CR 129).

Permitting the prisoner to cross-examine adverse 
witnesses and to call favorable ones is futile if the 
decisionmaker is not prohibited from considering evidence 
outside the record. We do not contend that the hearsay rule 
applies in prison disciplinary proceedings. We do contend, 
however, that disciplinary proceedings must respect the tenet 
of due process that decision be based solely on evidence 
adduced at the hearing. See Goldberg v. Kelly, 397 U.S. 254, 
271 (1970); Escalera v. New York City Housing Authority, 425 
F .2d 853, 862-63 (2d Cir. 1970). In other words, decision 
must be based on evidence "which the prisoner has the 
opportunity to refute. . . . To permit punishment to be
imposed for reasons not presented and aired would invite 
arbitrariness and nullify the right to notice and hearing. . .
The practice of going outside the record in search of bases

-31-



for punishment must cease." Landman v. Royster, ___ F .Supp.
___, 40 U.S.L.W. 2256, No. ,170-69-R (E.D. Va. Oct. 30, 1971)
(slip op. 66).

Moreover, the omission of any standard of proof
from the San Quentin Institution Plan leaves the disciplinary
committee free to base its decision on no evidence at all.
Cf. Thompson v. Louisville, 362 U.S. 199 (1960); Arciniega v.
Freeman, U.S. , 10 Cr. L. Rptr. 4050 (Oct. 26, 1971)
------- 35/
("satisfactory evidence" requirement for parole revocation).
In these circumstances, it was clearly proper for the court
below to impose the Goldberg requirement that the committee
state the reasons for its decision and the evidence relied 

36/
upon.

6. Record And Appeal

The only record of a San Quentin disciplinary 
proceeding consists of the notations made on the face of the

35/ Even the district court in Nolan v. Scafati, 306 F.Supp.
1 (D. Mass. 1969), which was reversed and remanded for
plenary consideration of the prisoner's procedural 
rights (430 F.2d 548 (1st Cir. 1970)), assumed that the 
decisionmaker must base the decision on "substantial 
evidence." Requiring that the finding rest on substantial 
evidence reminds the disciplinary committee of its duty 
fairly to weigh any opposing evidence, and should 
contribute to more reliable findings. See also Bundy 
v. Cannon, 328 F.Supp. 165 (D. Md. 1971); Morris v. 
Travisono, 310 F.Supp. 857 (D. R.I. 1970).

36/ This is also required in federal prisons, see Federal
Bureau of Prisons, Policy Statement No. 7400.6 (Dec. 1, 
1966) , and by the decisions in Landman v. Royster, supra, 
and Bundy v. Cannon, supra..

-32-



Form 115 (CR 129). This includes simply the title of the 
rule violated, the name of the complaining officer, the 
inmate's plea, the committee's finding and the disposition 
ordered.

The "record" is forwarded to the Associate Warden 
for his review and approval. A prison administrator testified 
that if the prisoner were dissatisfied with the committee's 
action, he could write to the Associate Warden, Custody 
(who had already approved the action) requesting further 
consideration of the case. There is no requirement that 
prisoners be informed of this possibility of "appeal" (CR 129).

Adequate findings and a record are essential "to 
make meaningful any appeal that is allowed" to a higher 
authority within the administrative process. Cf. Specht v. 
Patterson, 386 U.S. 605, 610 (1967). But the Form 115 does
not even have a space provided for briefly recording the 
evidence tending either to support or oppose the committee's 
findings. The prisoner's version of the facts or explanation 
of mitigating circumstances is not recorded at all, even 
though in most cases the record that goes to the Adult 
Authority will consist solely of the Form 115.

The provision for automatic review by the Associate 
Warden is thus an illusory safeguard. The record submitted 
to him is entirely inadequate to permit meaningful 
consideration of the correctness of the committee's findings.

-33-



He must assume the accuracy of the committee's findings of
fact. The only "review" possible is of the appropriateness
of the disposition, based on the assumption that the finding

37/
of guilt is correct.

The district court did not require appellate review 
of disciplinary proceedings as a matter of constitutional law. 
It simply required that, as long as review is provided for 
some prisoners, all must be notified of this possibility.
The Attorney General has advanced no argument here to justify 
providing fair procedures for only some prisoners, and the 
court below properly required uniformity of treatment.

* * *

In summary, the procedural safeguards ordered by 
the court below are both essential to reliable fact-finding 
and appropriate to disciplinary hearings at San Quentin. 
Moreover, they not only protect the prisoner's interest in

37/ Even this limited review has no guarantee of impartiality. 
Review of the committee's action in plaintiff Clutchette's 
case was made by Warden Park, who had been consulted by 
the committee before it reached its decision, and whose 
report on the infraction was part of the evidence in 
the case.
The right to fair review by a disinterested official may 
result in a quite different disposition. As Judge Foley 
noted in Wright v. McMann, 321 F .Supp. 127, 145 (N.D. N.Y. 
1970), "procedural safeguards with meaningful review and 
formal right to appeal in this instance might have averted 
or corrected this improper punishment."

-34-



avoiding a longer prison term and abnormally severe conditions 
of confinement but they also advance the correctional system's 
interest in rehabilitation.

The prison officials presumably do not claim the 
right to impose serious punishments arbitrarily. Certainly 
no legitimate penal interest is served by punishing an inmate 
for charges of which he is innocent. To the contrary, 
undeserved punishment is likely to cause resentment and 
mistrust of any form of authority. Sporadic and uneven 
enforcement of prison discipline "is more likely to breed 
contempt for the law than respect for it and obedience to it" 
and arbitrary treatment discourages prisoners from cooperating 
in their rehabilitation. See Jackson v. Godwin, 400 F.2d 539, 
535 (5th Cir. 1968).

The unreliable fact-finding procedures challenged
38/

here, which are so antithetical to rehabilitation, are 
not required by the need for prison security. If emergencies 
arise, they may be dealt with by emergency measures; but 
summary methods which would be justifiable only in an

38/ The President's Crime Commission states that "the
necessity of procedural safeguards should not be viewed 
as antithetical to the treatment concerns of corrections." 
Task Force Report, Corrections, 13 (.1967) . The Commission
emphasizes that prison procedures should be fair in fact 
and perceived as fair by the prisoners; it says: "A
person who receives what he considers unfair treatment 
from correctional authorities is likely to become a 
difficult subject for reformation." Id. at 83.

-35-



emergency will not suffice for the daily running of the 
prison. Cf. Williams v. Robinson, 432 F .2d 637, 644

3 9 / ~

(D.C. Cir. 1970).

We do not contend that the officials may not 
isolate or imp'ose controls on a prisoner who is in fact 
disruptive. There is no urgency, however, about placing an 
inmate in punitive isolation as opposed to merely separating 
him from the prison population. Such an extreme punishment 
should await a reliable fact-finding proceeding. See Landman
v. Royster, F.Supp. ___, 40 U.S.L.W. 2256, No. 170-69-R
(E.D. Va. Oct. 30, 1971).

Even if summary isolation can be justified, referral 
to the Adult Authority of findings of disciplinary infractions 
is not justified by any need for urgent action. Since the 
prisoner's sentence was based on a conviction originally made 
by a judge or jury with all the procedural safeguards of a 
judicial proceeding, and since the Adult Authority cannot

39/ The officials here have shown no strong governmental
interest in summary adjudication. Indeed, they introduced 
no evidence whatever to show that fairer and more careful 
procedures could not easily be implemented. It is now 
clear that considerations of administrative convenience, 
however legitimate, do not justify summary treatment 
resulting in infringement of constitutional rights. See 
Bell v. Burson, 402 U.S. 531 (1971); Shapiro v. Thompson,
394 U.S. 618 0-969); Johnson v. Avery, 393 U.S. 483 
(1969); United States ex rel Marcial v. Fay, 249 F.2d 
662 (2d Cir. 19 57) , cert, denied, 355 U.S. 915 (195 8); 
Carothers v. Follette, 314 F.Supp. 1014 (S.D. N.Y. 1970).

-36-



make de novo findings of fact in disciplinary matters,
findings of infractions that may be used to extend the period
of imprisonment must be made with scrupulous regard for

40/
procedural fairness.

No doubt a disciplinary proceeding in which the 
prisoner is accorded basic procedural safeguards might take 
longer than the current method. However, such a change would 
enhance, rather than detract from, its value as a part of the 
total correctional process. The goal of our penal system is 
rehabilitation, and as the court observed in Fleming v. Tate, 
156 F.2d 848, 850 (D.C. Cir. 1946),

"Certainly no circumstance could further that 
purpose to a greater extent than a firm belief 
on the part of such offenders in the impartial, 
unhurried, objective and thorough processes 
of the machinery of the law. And hardly any 
circumstances could with greater effect impede 
progress toward the desired end than a belief 
on their part that the machinery of the law is 
arbitrary, technical, too busy, or impervious 
to facts."

40/ See authorities cited in text at note 11, supra. As
this Court added in United States v. Weston, ___ F.2d

, No. 26,850 C9th Cir. Sept. 3, 1971), "a rational 
penal system must have some concern for the probable 
accuracy of the informational inputs in the sentencing 
process."

-37-



IV. A Prisoner May Not Be Subjected To Disciplinary 
Punishment For Conduct That Constitutes A Crime 
And That May Be Referred To The District Attorney 
For Prosecution Unless He Is Provided At The 
Hearing With Counsel And With The Right To 
Cross-Examine And Call Witnesses.

When the subject of the disciplinary proceeding is 
in-prison conduct that constitutes a crime, the accused 
prisoner is brought before the disciplinary committee and 
advised of his constitutional rights to remain silent and to 
have an attorney present during interrogation. He is also 
specifically advised that anything he says "can and will" be 
used against him in a court of law (CR 127) . However, if the 
prisoner then requests an attorney, he is told he cannot see 
one until the District Attorney interviews him. If he 
exercises his right to remain silent, the committee nevertheless 
proceeds to adjudicate the disciplinary infraction, relying 
solely on any written reports filed against him (CR 127-128; 
135-136). The district court found that "the trap is 
unavoidable" —  the prisoner, warned that anything he says 
may be used against him in a criminal prosecution,
"definitionally prejudices himself" by either (1) remaining 
silent, sacrificing any defense to the disciplinary charge 
(especially a mitigating circumstances defense) and thus 
incurring severe punishment, or (2) speaking in his own 
defense and risking self-incrimination in a later criminal 

prosecution (CR 137).
The court below invalidated this procedure, pointing 

out that it presents more serious constitutional infirmities

-38-



I *

than those in Miranda v. Arizona, 384 U.S. 436 (1966). The 
Attorney General has not contested this part of the court's 
decision; the district court was plainly correct.

The Supreme Court in Miranda declared that when 
an individual is taken into custody and "is subjected to 
questioning, the privilege against self-incrimination is 
jeopardized." 384 U.S. at 478. It is well-established that 
in-prison questioning of a suspect is custodial interrogation 
under Miranda. See Mathis v. United States, 391 U.S. 1 
(1968). Indeed, San Quentin officials give the Miranda 
warnings to accused prisoners in response to the California 
Supreme Court's decision in People v. Dorado, 62 Cal.2d 338,
42 Cal. Rptr. 169 (1965).

The Supreme Court made plain in Mathis, supra, 
that it makes no difference that the interrogation is not 
for the purpose of gathering evidence for criminal prosecution 
or that the person being questioned is in custody for an 
entirely separate offense:

"These differences are too minor and shadowy 
to justify a departure from the well- 
considered conclusions of Miranda with 
reference to warnings to be given to a 
person held in custody. . . . There is no
substance to such a distinction, and in 
effect it goes against the whole purpose 
of the Miranda decision which was designed 
to give meaningful protection to Fifth 
Amendment rights." 391 U.S. at 4.— '

41/ The Attorney General of New York has rendered an opinion 
to this effect, expressly concluding that the Miranda_ 
warnings must be given in prison disciplinary proceedings. 
See Atty. Gen. Op. 409/70, Feb. 11, 1971, reported in 
8 Cr. L. Rptr. 2486.

-39-



It is clear, therefore, that the prison officials
are required to give the Miranda warnings and advise the 
accused prisoner of his right to remain silent and to have 
an attorney. If the prisoner knowingly waives such rights 
and chooses to defend himself, the disciplinary committee 
may proceed with the questioning at the hearing. But where 
the prisoner does not waive such righis and elects to exercise 
the privilege against self-incrimination, the committee 
cannot proceed to adjudicate the offense and impose a 
disciplinary punishment with the prisoner "stripped of any 
possible means of defense" (CR 138). This is because it is 
impermissible to impose any penalty for exercising the right 
to remain silent or any sanction whatever that makes assertion 
of the Fifth Amendment privilege "costly." See Spevack v.
Klein, 385 U.S. 511, 515 (1967); Garrity v. New Jersey, 385 
U.S. 493 (1967); Griffin v. California, 380 U.S. 609, 614 
(1965); Malloy v. Hogan, 378 U.S. 1 (1964); Slochower v.
Board of Higher Education, 350 U.S. 551 (1956); cf. Simmons 
v. United States, 390 U.S. 377, 394 (1968).

Thus, unless the prisoner waives his Miranda rights, 
the disciplinary committee cannot, using its current procedures, 
impose punishment. It may be, however, that the prison 
authorities consider disciplinary controls essential and an 
offense too serious to permit a suspected disruptive prisoner 
to return to the general prison population. In other words, 
they may take the position that security requires imposition

-40-



of discipline without awaiting the outcome of criminal 
prosecution. If so, they can conduct a disciplinary 
proceeding, but only if —  as the court below held —  the 
accused is furnished with counsel and given the right to 
cross-examine and call witnesses (CR 138-39). Counsel must 
be furnished not only for all the reasons discussed at 
pp. 19-24, supra, but because Miranda requires it. Cross- 
examination and the right to call witnesses are required not 
only for all the reasons discussed at pp.. 25-30 , supra, but 
because if the accused exercises his privilege to remain 
silent he would be defenseless without these rights. The 
district court's decision on this point, not challenged by 
the Attorney General, must be affirmed.

r*

-41-



CONCLUSION

For the reasons stated, the judgment of the 
district court should be affirmed.

Respectfully submitted,

___________
WILLIAM BENNETT TURNER 
ALICE DANIEL 
12 Geary Street
San Francisco, California 94108

FLOYD SILLIMAN 
Silliman & House 
130 West Gabilan 
Salinas, California 93901

JOHN THORNE 
510 North Third Street 
San Jose, California

FAY STENDER 
5406 Claremont Avenue 
Oakland, California 94618

Attorneys for Plaintiffs-Appellees

I
-42-



APPENDIX

VENGEANCE OR HOPE?

MATHEW O. T0B3INER
Mr. Tobriner is an associate justice o f the Supreme Court 
o j California. ,

In the last few weeks the lid has blown off that ugliest 
aspect of the American legal system: the penitentiary. And 
one issue that has emerged from the tragic events is the 
responsibility of judges to offenders after conviction— an ■ 
issue that, long neglected, now compels, and in part has 
arrested, the attention of the courts.

The sensitivity that the courts have displayed in erecting 
constitutional protections for the poor and the disadvan­
taged cannot ignore the poorest and most disadvantaged 
of all: the condemned criminal defendant. Thus the courts 
at last are beginning to define at least some basic rights 
of convicted criminals; in so doing, the legal instrument 
they have used tentatively, and will probably use more 
fully, is procedural due process.

In his speech to the Association of the Bar of the City 
of New York, Chief Justice Warren Burger recognized 
the inadequacy of present conviction procedures: “ We 

' take on a burden when we put a man behind walls, and 
that burden is to give him a chance to change. . . If 
we deny him that', we deny him his status as a human

THE mcnou/October 18. 1971

being, and to deny that is to diminish our humanity and 
plant the seeds of future anguish for ourselves.”  In a 
speech to the National Association of Attorneys General 
in February 1970, Chief Justice Burger urged the states 
to develop methods for hearing the grievances of prison­
ers “ promptly, fully and fairly.” He suggested that reform 
could come through rules of court, legislation “ or what­
ever means is available.”

Due process of law stems from the Fourteenth Amend­
ment, which states: “No State shall . . . deprive any per-, 
son of life, liberty, or property, without due process of 
law; . . .”  When the courts have applied this mandate 
they have considered it from two standpoints: “ procedur­
al” due process, which expresses the individual’s pro­
tection against the destruction of basic or significant rights 
by government without an effective hearing; and “ sub­
stantive”  due process, which articulates, in essence, ’ pro­
tection against the arbitrary destruction of such basic or 
significant rights by the government without rational ex­

planation and without reason for such conduct. I Concern 
myself here mainly with recent significant decisions that 
expand the application of procedural due process, in the 
fields of both civil and criminal law. These decisions are 
not only landmarks in themselves but point to further 
developments in both areas.

367



Even with the recent resignations of the late Justice 
Black and Justice Harlan, a Court majority of five has 
shown positive support for the notion of expandin" due 

.process, at least in the civil area. I base this observation 
on the records of the Justices in five key decisions.

In Bell v. Burson (1971) 402 U.S. 535, the Court 
held unconstitutional the suspension of a driver’s license 
under a financial responsibility law because it provided 
no hearing on probable fault and liability. In JVisconsin 
v. Constantineau (1971) 400 U.S. 433, the Court struck 
down a statute for posting in bars public notice of habit­
ual drunkenness, on the ground that the legislation gave 
no notice or hearing to the subject of the publication 
Goldberg v. Kelly (1970) 397 U.S. 254, condemned the 
removal of a client from the welfare rolls without a prior 
hearing. Sniadach v. Family Finance Corp. (1969) 395 
U.S. 337, held unconstitutional the garnishment of wages 
without a hearing to the garnishee. In ruling that an indi­
gent in a divorce proceeding was denied due process be­
cause her inability to pay court fees kept her out of court, 
Justice Harlan, in Boddie v. Connecticut (1971) 401 U.s! 
371, wrote “ . . . an individual [must] be given an oppor­
tunity for a hearing before he is deprived of any signifi­
cant property interest.”

Four of the present Justices, Douglas, Brennan, Mar­
shall and White, have consistently supported the notion 
that the government cannot move against “ a significant 
private interest”  without according procedural due proc­
ess. A fifth, Justice Stewart, has usually supported the 
other four, but his approach has tended to be more criti­
cal. Nonetheless, Justice Stewart will apparently support 
procedural due process upon a showing of the following 
factors: that harm to the individual is great or peculiarly 
offensive, that the burden of due process is not unusually 
heavy for the government, and that history has not tradi­
tionally accorded the government a prerogative of exclu­
sive authority in the area of concern.

> As for the remaining two Justices, Burger and Black- 
mun, we have yet to see any opinion from them directly 
opposed to the notion of procedural due process as ap­
plied to protect a private right. But they have shown an 
inclination to employ collateral motivations, such as the 
abstention doctrine, to avoid supporting the majority in 
upholding the requirement of procedural due process. 
Hence, among the present seven Justices, I would say 
that we have four consistent supporters, one strong sup­
porter, and two who are at the least very doubtful in 
regard to procedural due process.

There can be no doubt that the recent decisions 
have at least stripped away ancient encrustments from 
areas and relationships that were seemingly closed to judi­
cial scrutiny. Nor can I conceive that their impact will be 
confined to their specific subject matter. The procedural 
due process that the Supreme Court has recognized in 
matters of garnishment and welfare may well be applied 
now to the area of present concern: the post-conviction 
period in criminal proceedings.

Indeed, in the field of criminal law tire extension of 
due process beyond conviction will but follow the basic 
advances already made in the accusative and trial stages 
of the process. Not only have constitutional protections

been elaborated in the criminal trial itself but the Su­
preme Court, in the important case of Mempa v. Rhay 
(1967) 3S9 U.S. 123, has extended to the defendant the 
right to a hearing and the right to appointed counsel in 
probation revocation. -

Today we are beginning to recognize that post-con­
viction processes of the criminal law may cause the af­
fected individual even more grievous losses than those 
indicted by other procedures for which due process has 
been constitutionally compelled. For example, when pa­
role or probation is revoked, the conditionally released 
individual is deprived of his previous freedom to live a 
normal, albeit supervised, life. If a person is to be pro­
tected by procedural due process, and granted a hearing, 
before he suffers “ significant deprivation”  by being denied 
his welfare payments, then does he not have an even 
greater claim to such process before his parole is revoked 
and he is returned to prison?

Yet several states still precipitately uproot the parolee 
from the life he has reconstructed for himself, reincar-

tuz NATZor{/October 13,1971368



cerating him and giving him no right by law to be in­
formed 'of the charges, to enter a defense, and possibly 
to prove his innocence of parole violation. Unfortunately, 
California is among such states and, as a dissenter from 
a recent majority decision, I concluded my opinion with 
this observation: “ A  fundamental purpose of due process 
of law is to give the individual the chance to be heard,1 
so that the ascertainment of the truth will prevent arbi­
trary and unjust state action. Why should the parolee 
be denied this chance to be heard?”

Much more difficult will be the extension of procedural 
due process to the somewhat elusive decision of the Adult 
Authority in California as to whether to grant parole and 
set the prisoner’s term. The Adult Authority is charged 
with the obligation of determining whether the prisoner 
is ready to live outside prison walls. Commentators have 
urged that if this decision is to be reached rationally, with 
full presentation of the relevant facts and with adequate 
attention to the rights of the prisoner, due process must 
ultimately be accorded here.

i

Other archaic walls of Jericho could conceivably 
■ come tumbling down. What of the treatment of inmates 
of the penitentiary or jail itself? Courts have rarely looked 
into this formerly sacrosanct enclosure, but some judges 
now recognize that inmates may properly claim some con­
stitutional rights. V/ill inmates be accorded a due process 
hearing before being subjected to disciplinary penalties 
which are not only onerous in themselves but usually 
result in an extension o f the prison term? If due process 
protection applies to the fixing of probation, should it 
not protect the inmate from the fixing of penalties?

Prison and jail officials are charged with determining 
when individual prisoners should be placed in isolation 

• for rule infractions, should be subjected to loss of privi­
leges, should be permitted to receive particular books and 
magazines, or should be transferred to'a more restricted 
custody facility. The prison officials now do hold hearings 
with respect to some of these matters, but inmates have 
ordinarily not been afforded such protections of due 
process as the right to present witnesses, or to a hearing 
before an officer who is not intimately - associated with 

~ the prison authorities.
Courts in the past have found various excuses for not 

applying due process to sentencing, probation, parole and 
prison cases. They haye rationalized their failure to act 
by declaring that no rights, only “privileges” and “grace,” 
arc involved; that these procedures arc merely adminis­
trative, not judicial; that the affected individual has al­
ready been convicted and thus can claim no protectable 
interest in the kind of custody he will receive. Such find­
ings really mean that convicted defendants, probationers, 
parolees and prisoners have been considered non-persons, 
subhumans, or defenseless “ slaves of the state.”  I submit 
that the courts may no longer escape into these primitive 
sanctuaries; the realities of the day compel them to face 
the problems emerging in these crucial areas.

The realities are strikingly illustrated in an opinion re­
cently written by Judge Zirpoli of the Federal District 
Court for the Northern District of California \Cluchette 
V. Procunier (N.D. Cal. 1971 No. C-702497 A.J. 2 ). 
The court held that “ the disciplinary procedures employed

‘ ' 'Xh b  Ktcaon/October 13,1071

..“V
A

at San Quentin Prison violate the Fourteenth Amend­
ment”  by failing to provide to the inmate procedural due 

, process. The opinion explained that each housing unit at ' 
San Quentin has a disciplinary committee which meets 
weekly, and, when charges are preferred against a prison- ■ • 
er, informs him of the charges and receives his plea of - 
guilty or not guilty. But the inmate is not “ entitled to call • 
witnesses or to confront the persons who prepared the \ 
reports against him. Fie is not entitled to the assistance 
of either a lawyer, a staff member, or another inmate who 
might help to present a defense to' the charges.”. Nor. 
are the other safeguards of procedural due process af­
forded to the inmate. . -

1 r< {

•jii
•v-‘.w-

Among actions which the disciplinary committee/;-’;, 
may take against the prisoner is assignment to an iso!a- . . . 
tion cell Or to segregation status. As Judge Zirpoli points 
out: “A  regular isolation ceil is 5 feet by 9 feet, concrete 
construction, with a barred door; it is furnished with ? /-  
a cot, a sink and a toilet. . . .  A  prisoner in isolation ., 
spends at least 23 hours a day in his cell, being permitted 
to leave only for a brief period each day, when he may r- 
walk up and down alone in the narrow passageway in ; 
front c f  his cell. If the disciplinary committee orders that 
the prisoner be kept on ‘cell status’ he remains in his cell 
24 hours a day, without even the brief respite otherwise : 
permitted for exercise.”  The inmate is permitted no read-. -- 
ing matter whatsoever, and, of course, no radio or tele­
vision. “ There is very little difference between ‘isolation’ : > 
and the Adjustment Center'.''Adjustment Center -inmatt 
are compelled to spend their days in idleness, confined to : ” 
their cells 23 hours a day, 7 days a week.”  '

The recognition of the inmate’s right to a meaningful “ A  A

r !

-notice, charges, hearing, confrontation of accusers and
^presentation of witnesses will not only protect him from 
arbitrary and onerous punishment; it will also bring the, 
practices of our prisons before the courts and the p u b l ic / : 

Sooner or later the light of public inquiry must come : 
Co these dark places. Perhaps that inquiry will produce „ 
reasoned answers to neglected questions. Is the prison to 
serve merely as a depositary for the individual who breaks ’’ ' 
the law, and an expression of public vengeance again-1 
him? Is the prison the awful emblem c f  public hate against • 
those who violate society’s rules— the tomb cf public" 
anger? Until we can regard the prison as a place to which"'-, 
persons dangerous to society are removed, so that efforts- j  
may be made for their rehabilitation; and until some more 
realistic methods can be employed to restore those of­
fenders to a normal life, the high recidivism and conse­
quent danger to the public will probably continue. . ,

As Dr. Karl Menninger eloquently stated in The Crime 
of Punishment, “ In the last analysis this becomes a rues- ) 
tion of personal morals and values. No matter how giori- . 
tied or how piously disguised, vengeance, as a human, ; 
motive must be personally repudiated by each and every 
one of us. This is the message of old religions and new 
psychiatrics. Unless this message is heard, unless we, the 
people— the man on the street, the housewife in the home . 
— can give up our delicious satisfactions in opportunities 
for vengeful retaliation on scapegoats, we cannot expect 
to preserve our peace, our public safety, or our mental ; 
health. Can we? Will we?”  □

'T**' f

f t

369

i 12. ' 7 K .  ".■"'jJ j W -tv'V/.,