The Due Process Clause of the Fourteenth Amendment prohibits a state from depriving “any person of life, liberty or property without due process of law.” There are two parts to this clause: “substantive due process” and “procedural due process.” This section deals only with procedural due process.
Your right to procedural due process means that the prison must provide you with some amount of protection (like a hearing or notice) before the prison does something that harms your life, liberty, or property. Discipline, placement in segregation, transfers to different prisons, and loss of good time credit are all things that the prison can do to you that might violate procedural due process if they are done without process.
Procedural due process has two parts: first you have to show a liberty interest and second, you have to show that you should have gotten more procedure than you received.
You have a liberty interest when the prison’s actions interfere with or violate your constitutionally protected rights or result in conditions of confinement that are much worse than is normal for prisoners. If you don’t have a liberty interest then the prison doesn’t have to provide you with any process at all.
1. Two important Supreme Court cases govern due process rights for prisoners:
- In the first case, Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme Court found that, when prisoners lose good time credits because of a disciplinary offense, they are entitled to: (1) written notice of the disciplinary violation; (2) the right to call witnesses at their hearing; (3) assistance in preparing for the hearing; (4) a written statement of the reasons for being found guilty; and (5) a fair and impartial decision-maker in the hearing.
- The second important Supreme Court case, Sandin v. Conner, 515 U.S. 472 (1995), however, sharply limits the decision of Wolff and sets a higher standard that you have to meet in order to show that you have a liberty interest.
Any prisoner alleging a violation of due process should first read Sandin. In Sandin, a prisoner was placed in disciplinary segregation for 30 days and was not allowed to have witnesses at his disciplinary hearing. But the Court in Sandin found that, unless the punishment an inmate receives is an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life,” then there is no right to the five procedures laid out in Wolff. “Atypical” means that you are being treated very differently than the way most prisoners are treated. “Significant hardship” means that treatment must be really awful, not just uncomfortable or annoying.
You cannot bring a procedural due process challenge to a disciplinary proceeding if winning would result in the court reversing the judgment of the disciplinary proceeding. The only way to challenge the result of a disciplinary proceeding is through the appeal process.
This important but confusing concept comes from a Supreme Court case called Edwards v. Balisok, 520 U.S. 641 (1997). In Edwards, a prisoner challenged the conduct of the hearing examiner, stating that the examiner hid evidence that would have helped him and didn’t question witnesses adequately. At the hearing, the prisoner was sentenced to time in solitary and loss of good time credits. The Court held that, if what the prisoner said was true, it would mean that the result of his disciplinary hearing would have to be reversed and his good time credits would have to be given back to him. This would affect the length of his confinement, and a challenge like that can only be brought if the prisoner can show that his/her disciplinary conviction has already been overturned in a state proceeding.
If you are just challenging the prison’s failure to follow fair procedures, or a disciplinary decision that does not affect the length of your confinement, you are probably O.K. Read Brown v. Plaut, 131 F.3d 163 (D.C. Cir. 1997), for more on this issue.
If you want to argue that your rights were violated because you did not receive the procedures laid out in Wolff, you must first show that the punishment you received either prolonged your sentence (like by taking away good time) or was extremely harsh. Frequently, short periods of solitary confinement, “keeplock,” or loss of privileges will not be considered harsh enough to create a liberty interest. For example, in Key v. McKinney, 176 F.3d 1083 (8th Cr. 1999), the court found that 24 hours in shackles was not severe enough to violate due process. The circuit courts have taken very different approaches to the question of whether prolonged placement in SHU is atypical and significant. The Second Circuit has found that 305 days in solitary confinement in one case, and 762 days in another, were severe enough to create a liberty interest, but 101 days was not. You can read Giano v. Selsky, 238 F.3d 223 (2d Cir. 2001), and Colon v. Howard, 215 F.3d 227 (2d Cir. 2000), to get a sense of how to make this type of claim.
The severity of the conditions matters a lot. For example, in Palmer v. Richards, 364 F.3d 60 (2d Cir. 2004), the same court held that 77 days under aggravated conditions could be atypical and significant. Gillis v. Litscher, 468 F.3d 495 (7th Cir. 2006) and Mitchell v. Horn, 318 F.3d 523 (3d Cir. 2003) are other good cases examining short placement in very bad conditions.
Although Sandin changed the law in important ways, the Supreme Court did not say they were overruling Wolff. This means that when you can show that there is a liberty interest at stake, even though it is much harder to prove under Sandin, the rights guaranteed by Wolff still apply. In other words, if a decision by prison officials results in conditions that are severe enough to meet the “significant and atypical” standard, or prolongs your time in prison, the prison must give you procedures like a hearing and a chance to present evidence.
Courts have found due process violations when prisoners are disciplined without the chance to get witness testimony, have a hearing, or present evidence. Courts have also found due process violations when punishment is based on vague claims of gang affiliation. Some cases in which these types of claims were successfully made are: Ayers v. Ryan, 152 F.3d 77 (2d Cir. 1998); Taylor v. Rodriguez, 238 F.3d 188 (2d Cir. 2001); and Hatch v. District of Columbia, 184 F.3d 846 (D.C. Cir. 1999).
2. Transfers and Segregation
If you are transferred to a different facility or to a different location within a prison, the same standard in Sandin v. Connor applies: you must show that the transfer resulted in conditions that were a significant or atypical departure from the ordinary incidents of prison life. Given the fact that the new prison will likely be similar to prisons everywhere, it is very hard to win on such a claim. In Freitas v. Ault, 109 F.3d 1335 (8th Cir. 1997), for example, the court said that transfer from a minimum-security facility to a maximum-security facility did not create a liberty interest. However, you may have a case if you are transferred to a supermaximum security facility where conditions are way harsher than most prisons. The Supreme Court considered transfer to a Supermax in Wilkinson v. Austin, 545 U.S. 209 (2005). The conditions were so harsh at the Supermax (almost no human contact, 24-hour lighting, no outside recreation, etc), that the Court found a liberty interest. However, even in this situation, the Court held that not all the Wolff protections were required: it was enough for prisoners to get notice, and opportunity to challenge their transfer, and some periodic review.
You may also have a right to procedural protections if you are transferred out of the prison system entirely. In Vitek v. Jones, 445 U.S. 480 (1980), the Supreme Court found a liberty interest when a prisoner was involuntary removed from the prison to a medical hospital for mandatory mental health treatment.
If you are placed in administrative segregation, rather than disciplinary segregation, you still have some due process rights, but these rights are more limited. The Supreme Court has found that, in general, a formal or “adversarial” hearing is not necessary for putting prisoners in administrative segregation. All you get is notice and a chance to present your views informally. This was decided in Hewitt v. Helms, 459 U.S. 460 (1983), the most important case on administrative segregation. Some courts believe that, after Sandin, there is no longer an obligation on the part of prisons to follow any procedures at all before placing an inmate in administrative segregation. An example of this can be found in Wagner v. Hanks, 128 F.3d 1173, 1175 (7th Cir. 1997). One case that provides a useful argument against this is Sealey v. Giltner, 197 F.3d 578 (2d Cir. 1999). When the conditions in administrative segregation are exceptionally harsh, you are entitled to some procedural protections. Wilkinson v. Austin, 545 U.S. 209 (2005).
One good state case you might want to read is Schuyler v. Roberts, 285 Kan. 677 (2008). In Schuyler, the Supreme Court of Kansas considered a prisoner’s due process challenge to his classification as a sex offender even though he had not been convicted on that charge, nor had he been disciplined while incarcerated for inappropriate sexual behavior. Because of the sex offender status, the prisoner lost work privileges, had to transfer to another facility, and had to register as a sex offender upon release. Additionally, he would lose other privileges if he refused to participate in the program. The court found a liberty interest.
There may be other ways of challenging transfers and administrative segregation as well. For example, a prison can’t transfer you to punish you for complaining or to keep you from filing a lawsuit. Prison officials must not use transfers or segregation to restrict your access to the courts. For an example of this type of claim, read Allah v. Seiverling, 229 F.3d 220 (3d Cir. 2000) and Section G of this Chapter.