Prisoners and Procedural Due Process

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All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In an 1871 case, the Supreme Court embraced a narrow view of prisoners’ due process rights, stating that a prisoner “has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being the slave of the state.” 1 However, that view is not currently the law.2 In 1948, the Court declared that “[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights,” suggesting that some rights and privileges may remain.3 Subsequent cases make clear that the Due Process and Equal Protection Clauses apply to prisoners to some extent.4

The Court described its role in protecting the constitutional rights of prisoners in a 1972 case:

Federal courts sit not to supervise prisons but to enforce the constitutional rights of all ‘persons,’ which include prisoners. We are not unmindful that prison officials must be accorded latitude in the administration of prison affairs, and that prisoners necessarily are subject to appropriate rules and regulations. But persons in prison, like other individuals, have the right to petition the government for redress of grievances.5

While the Court has affirmed that federal courts have the responsibility to scrutinize prison practices alleged to violate the Constitution, concerns of federalism and judicial restraint have caused the Court to emphasize the necessity of deference to the judgments of prison officials and others responsible for administering such systems.6

Aside from challenges to conditions of confinement of pretrial detainees,7 the Court has normally analyzed constitutional challenges to general prison conditions under the Cruel and Unusual Punishments Clause of the Eighth Amendment,8 while challenges to particular incidents and practices proceed under the Due Process Clause9 or other provisions such as the First Amendment’s speech and religion clauses.10 Prior to formulating its current approach, the Court recognized several rights of prisoners. The Court has held that prisoners have the right to petition for redress of grievances, which includes access to the courts for purposes of presenting their complaints,11 and to bring actions in federal courts to recover for damages wrongfully caused by prison administrators.12 They also have a right, circumscribed by legitimate prison administration considerations, to fair and regular treatment during their incarceration. Prisoners have a right to be free of racial segregation in prisons, except for the necessities of prison security and discipline.13

In Turner v. Safley, the Court announced a general standard for measuring prisoners’ claims of deprivation of constitutional rights: “[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” 14 The Court indicated that several considerations are appropriate in determining the reasonableness of a prison regulation. First, there must be a rational relation to a legitimate, content-neutral objective, such as prison security. Availability of other avenues for exercise of an inmate’s right supports a finding of reasonableness.15 A regulation is also more likely to be deemed reasonable if accommodation would have a negative effect on the liberty or safety of guards, other inmates,16 or visitors.17 On the other hand, “if an inmate claimant can point to an alternative that fully accommodated the prisoner’s rights at de minimis cost to valid penological interests,” it suggests the regulation is unreasonable.18

The Court has held that Fourth Amendment protection is incompatible with “the concept of incarceration and the needs and objectives of penal institutions” ; hence, a prisoner has no reasonable expectation of privacy in his or her prison cell protecting him from “shakedown” searches designed to root out weapons, drugs, and other contraband.19 The Court has not totally blocked redress “for calculated harassment unrelated to prison needs,” as inmates may still seek protection under the Eighth Amendment or state tort law.20 Existence of “a meaningful postdeprivation remedy” for unauthorized, intentional deprivation of an inmate’s property by prison personnel protects the inmate’s due process rights.21 The Court has held that negligent deprivation of life, liberty, or property by prison officials does not implicate due process at all.22

A change to a prisoner’s housing conditions, including one imposed as a matter of discipline, may implicate a protected liberty interest if such a change imposes an “atypical and significant hardship” on the inmate.23 In Wolff v. McDonnell, the Court articulated due process standards to govern prisoner discipline.24 The Court held that due process applies but, because prison disciplinary proceedings are not part of a criminal prosecution, the full panoply of defendant rights is not available. Rather, the analysis must proceed by identifying the interest in “liberty” that the Due Process Clause protects. Thus, where the state provides good-time credit or other privileges and further provides for forfeiture of these privileges only for serious misconduct, the interest of the prisoner in this degree of liberty entitles him to the minimum procedures appropriate under the circumstances.25 What the minimum procedures consist of is to be determined by balancing the prisoner’s interest against the valid interest of the prison in maintaining security and order in the institution, in protecting guards and prisoners against retaliation by other prisoners, and in reducing prison tensions.

The Court in Wolff held that a prison must afford the subject of a disciplinary proceeding “advance written notice of the claimed violation and a written statement of the factfindings as to the evidence relied upon and the reasons for the action taken.” 26 In addition, “an inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.” 27 Confrontation and cross-examination of adverse witnesses is not required inasmuch as these would threaten valid institutional interests. Ordinarily, an inmate has no right to representation by retained or appointed counsel. Finally, only a limited right to an impartial tribunal was recognized, with the Court ruling that imposing limitations on the discretion of a committee of prison officials sufficed for this purpose.28 Revocation of good time credits, the Court later ruled, must be supported by “some evidence in the record,” but an amount that “might be characterized as meager” is constitutionally sufficient.29

Determination of whether due process requires a hearing before a prisoner is transferred from one institution to another requires analysis of the applicable statutes and regulations as well as consideration of the particular harm suffered by the transferee. In one case, the Court found that no hearing needed to be held prior to transferring a prisoner from one prison to another prison in which the conditions were substantially less favorable. Because the state had not conferred any right to remain in the facility to which the prisoner was first assigned, prison officials had unfettered discretion to transfer any prisoner for any reason or for no reason at all.30 The same principles govern interstate prison transfers.31

By contrast, transfer of a prisoner to a high security facility, with an attendant loss of the right to parole, gave rise to a liberty interest, although the due process requirements to protect this interest are limited.32 The Court has also held that transfer of a prisoner to a mental hospital pursuant to a statute authorizing transfer if the inmate suffers from a “mental disease or defect” must be preceded by a hearing. The Court first noted that the statute in that case gave the inmate a liberty interest, because it presumed that he would not be moved absent a finding that he was suffering from a mental disease or defect. Second, unlike transfers from one prison to another, transfer to a mental institution was not within the range of confinement covered by the prisoner’s sentence, and, moreover, imposed a stigma constituting a deprivation of a liberty interest.33

Another case, Washington v. Harper, concerned the kind of hearing that is required before a state may force a mentally ill prisoner to take antipsychotic drugs against his will.34 The Court held that a judicial hearing was not required. Instead, the inmate’s substantive liberty interest (derived from the Due Process Clause as well as from state law) was adequately protected by an administrative hearing before independent medical professionals, at which the inmate had the right to a lay advisor but not an attorney.

1: Ruffin v. Commonwealth, 62 Va. 790, 796 (1871).
2: Cf. In re Bonner, 151 U.S. 242 (1894).
3: Price v. Johnston, 334 U.S. 266, 285 (1948).
4: “There is no iron curtain drawn between the Constitution and the prisons of this country.” Wolff v. McDonnell, 418 U.S. 539, 555–56 (1974).
5: Cruz v. Beto, 405 U.S. 319, 321 (1972). See also Procunier v. Martinez, 416 U.S. 396, 404–05 (1974) (invalidating state prison mail censorship regulations).
6: Bell v. Wolfish, 441 U.S. 520, 545–548, 551, 555, 562 (1979) (federal prison); Rhodes v. Chapman, 452 U.S. 337, 347, 351–352 (1981).
7: See Wolfish, 441 U.S. at 535–40. Persons not yet convicted of a crime may be detained by the government upon the appropriate determination of probable cause, and the government is entitled to “employ devices that are calculated to effectuate [a] detention.” Id. at 537. Nonetheless, the Court has held that the Due Process Clause protects a pretrial detainee from being subject to conditions that amount to punishment. See Wolfish, 441 U.S. at 538, 561. More recently, the Court clarified the standard by which the due process rights of pretrial detainees are adjudged with respect to excessive force claims. Specifically, in Kingsley v. Hendrickson, the Court held that, in order for a pretrial detainee to prove an excessive force claim in violation of his due process rights, a plaintiff must show that an officer’s use of force was objectively unreasonable, depending on the facts and circumstances from the perspective of a reasonable officer on the scene, aligning the due process excessive force analysis with the standard for excessive force claims brought under the Fourth Amendment. 135 S. Ct. 2466, 2473–74 (2015); cf. Graham v. Connor, 490 U.S. 386, 388 (1989) (holding that a “free citizen’s claim that law enforcement officials used excessive force . . . [is] properly analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard” ). Liability for actions taken by the government in the context of a pretrial detainee due process lawsuit does not, therefore, turn on whether a particular officer subjectively knew that the conduct being taken was unreasonable. See Kingsley, 135 S. Ct. at 2470.
8: See Amdt8.4.7 Conditions of Confinement.
9: E.g., Wolff v. McDonnell, 418 U.S. 539 (1974); Baxter v. Palmigiano, 425 U.S. 308 (1976); Vitek v. Jones, 445 U.S. 480 (1980); Washington v. Harper, 494 U.S. 210 (1990) (prison inmate has liberty interest in avoiding the unwanted administration of antipsychotic drugs).
10: E.g., Procunier v. Martinez, 416 U.S. 396 (1974); Jones v. N.C. Prisoners’ Union, 433 U.S. 119 (1977). On religious practices and ceremonies, see Cooper v. Pate, 378 U.S. 546 (1964); Cruz v. Beto, 405 U.S. 319 (1972).
11: Ex parte Hull, 312 U.S. 546 (1941); White v. Ragen, 324 U.S. 760 (1945). Prisoners must have reasonable access to a law library or to persons trained in the law. Younger v. Gilmore, 404 U.S. 15 (1971); Bounds v. Smith, 430 U.S. 817 (1977). Establishing a right of access to law materials, however, requires an individualized demonstration of an inmate having been hindered in efforts to pursue a legal claim. See Lewis v. Casey, 518 U.S. 343 (1996) (no requirement that the state “enable [a] prisoner to discover grievances, and to litigate effectively” ).
12: Haines v. Kerner, 404 U.S. 519 (1972); Preiser v. Rodriguez, 411 U.S. 475 (1973).
13: Lee v. Washington, 390 U.S. 333 (1968). There was some question as to the standard to be applied to racial discrimination in prisons after Turner v. Safley, 482 U.S. 78 (1987) (prison regulations upheld if “reasonably related to legitimate penological interests” ). In Johnson v. California, 543 U.S. 499 (2005), however, the Court held that discriminatory prison regulations would continue to be evaluated under a “strict scrutiny” standard, which requires that regulations be narrowly tailored to further compelling governmental interests. Id. at 509–13 (striking down a requirement that new or transferred prisoners at the reception area of a correctional facility be assigned a cellmate of the same race for up to sixty days before they are given a regular housing assignment).
14: 482 U.S. 78, 89 (1987) (upholding a Missouri rule barring inmate-to-inmate correspondence, but striking down a prohibition on inmate marriages absent compelling reason such as pregnancy or birth of a child). See Overton v. Bazzetta, 539 U.S. 126 (2003) (upholding restrictions on prison visitation by unrelated children or children over which a prisoner’s parental rights have been terminated and visitation where a prisoner has violated rules against substance abuse).
15: For instance, limiting who may visit prisoners is ameliorated by the ability of prisoners to communicate through other visitors, by letter, or by phone. Bazzetta, 539 U.S. at 135.
16: 482 U.S. at 90, 92.
17: Hudson v. Palmer, 468 U.S. 517, 526 (1984).
18: 482 U.S. at 91.
19: Hudson, 468 U.S. at 526; Block v. Rutherford, 468 U.S. 576 (1984) (holding also that needs of prison security support a rule denying pretrial detainees contact visits with spouses, children, relatives, and friends).
20: Hudson, 468 U.S. at 530.
21: Hudson, 468 U.S. at 533 (holding that state tort law provided adequate post-deprivation remedies). But see Zinermon v. Burch, 494 U.S. 113 (1990) (availability of post-deprivation remedy is inadequate when deprivation is foreseeable, pre-deprivation process was possible, and official conduct was not “unauthorized” ).
22: Daniels v. Williams, 474 U.S. 327 (1986); Davidson v. Cannon, 474 U.S. 344 (1986).
23: Sandin v. Conner, 515 U.S. 472, 484 (1995) (thirty-day solitary confinement not atypical “in relation to the ordinary incidents of prison life” ).
24: 418 U.S. 539 (1974).
25: Id. at 557.
26: Id. at 563.
27: Id. at 566. However, the Court later ruled that the reasons for denying an inmate’s request to call witnesses need not be disclosed until the issue is raised in court. Ponte v. Real, 471 U.S. 491 (1985).
28: 418 U.S. at 561–72. The Court continues to adhere to its refusal to require appointment of counsel. Vitek v. Jones, 445 U.S. 480, 496–97 (1980); id. at 497–500 (Powell, J., concurring); Baxter v. Palmigiano, 425 U.S. 308 (1976).
29: Superintendent v. Hill, 472 U.S. 445, 454, 457 (1985).
30: Meachum v. Fano, 427 U.S. 215 (1976); Montanye v. Haymes, 427 U.S. 236 (1976).
31: Olim v. Wakinekona, 461 U.S. 238 (1983).
32: Wilkinson v. Austin, 545 U.S. 209, 224 (2005) (assignment to Ohio SuperMax prison, with attendant loss of parole eligibility and with only annual status review, constitutes an “atypical and significant hardship” ). In Wilkinson, the Court upheld Ohio’s multi-level review process, despite the fact that a prisoner was provided only summary notice as to the allegations against him, a limited record was created, the prisoner could not call witnesses, and reevaluation of the assignment only occurred at one thirty-day review and then annually. Id. at 219–20.
33: Vitek v. Jones, 445 U.S. 480 (1980).
34: 494 U.S. 210 (1990).