OCTOBER TERM, 1994
Syllabus
SANDIN, UNIT TEAM MANAGER, HALAWA CORRECTIONAL FACILITY
v. CONNER ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 93-1911. Argued February 28, 1995-Decided June 19, 1995
In this suit, respondent Conner alleged that petitioner and
other Hawaii prison officials deprived him of procedural due
process when an adjustment committee refused to allow him to
present witnesses during a disciplinary hearing and then sentenced
him to segregation for misconduct. The District Court granted the
officials summary judgment, but the Court of Appeals reversed,
concluding that Conner had a liberty interest in remaining free of
disciplinary segregation and that there was a disputed question of
fact whether he had received all of the process due under
Wolffv. McDonnell, 418 U. S. 539. The court
based its conclusion on a prison regulation instructing the
committee to find guilt when a misconduct charge is supported by
substantial evidence, reasoning that the committee's duty to find
guilt was nondiscretionary. From that regulation, it drew a
negative inference that the committee may not impose segregation if
it does not find substantial evidence of misconduct, that this is a
state-created liberty interest, and that therefore
Wolff
entitled Conner to call witnesses.
Held: Neither the Hawaii prison regulation nor the Due
Process Clause itself affords Conner a protected liberty interest
that would entitle him to the procedural protections set forth in
Wolff Pp.477-488.
(a) Under
Wolff, States may in certain circumstances
create liberty interests that are protected by the Due Process
Clause. But these interests will generally be limited to freedom
from restraint which, while not exceeding the sentence in such an
unexpected manner as to give rise to protection by the Due Process
Clause of its own force, nonetheless imposes atypical and
significant hardship on the inmate in relation to the ordinary
incidents of prison life. See also
Meachum v.
Fano,
427 U. S. 215. The methodology used in
Hewitt v.
Helms, 459 U.
S. 460, and later cases has impermissibly shifted the focus of
the liberty interest inquiry from one based on the nature of the
deprivation to one based on language of a particular regulation.
Under
Hewitt's methodology, prison regulations, such the one
in this case, have been examined to see whether mandatory language
and substantive predicates create an enforceable expectation that
the State would produce a particular
473
outcome with respect to the prisoner's confinement conditions.
This shift in focus has encouraged prisoners to comb regulations in
search of mandatory language on which to base entitlements to
various stateconferred privileges. Courts have, in response, drawn
negative inferences from that language.
Hewitt creates
disincentives for States to codify prison management procedures in
the interest of uniform treatment in order to avoid the creation of
"liberty" interests, and it has led to the involvement of federal
courts in the day-to-day management of prisons. The time has come
to return to those due process principles that were correctly
established and applied in
Wolff and
Meachum.
pp.477-484.
(b) Conner asserts, incorrectly, that any state action taken for
a punitive reason encroaches upon a liberty interest under the Due
Process Clause even in the absence of any state regulation.
Bell v.
Wolfish, 441 U. S. 520 (1979), and
Ingraham v.
Wright, 430 U. S. 651 (1977),
distinguished. Pp. 484-485.
(c) Conner's discipline in segregated confinement did not
present the type of atypical, significant deprivation in which a
State might conceivably create a liberty interest. At the time of
his punishment, disciplinary segregation mirrored those conditions
imposed upon inmates in administrative segregation and protective
custody. Moreover, the State later expunged his disciplinary
record, with respect to the more serious of the charges against
him. And, his confinement did not exceed similar, but totally
discretionary confinement in either duration or degree of
restriction. Conner's situation also does not present a case where
the State's action will inevitably affect the duration of his
sentence, since the chance that the misconduct finding will affect
his parole status is simply too attenuated to invoke the Due
Process Clause's procedural guarantees. Pp. 485-487.
15 F.3d
1463, reversed.
REHNQUIST, C. J., delivered the opinion of the Court, in which
O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. GINSBURG, J.,
filed a dissenting opinion, in which STEVENS, J., joined,
post, p. 488. BREYER, J., filed a dissenting opinion, in
which SOUTER, J., joined,
post, p. 491.
Steven S.
Michaels, First Deputy Attorney General
of Hawaii, argued the cause for petitioner. With him on the briefs
were
Margery S.
Bronster, Attorney General of Hawaii,
Robert A. Marks, former Attorney General, and
Kathleen M.
Sato, Deputy Attorney General.
474
Paul L. Hoffman argued the cause for respondents. With
him on the brief was
Gary L. Bostwick. *
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
We granted certiorari to reexamine the circumstances under which
state prison regulations afford inmates a liberty interest
protected by the Due Process Clause.
I
DeMont Conner was convicted of numerous state crimes, including
murder, kidnaping, robbery, and burglary, for which he is currently
serving an indeterminate sentence of
*Briefs of
amici curiae urging reversal were filed for
the State of New Hampshire et al. by
Jeffrey R. Howard,
Attorney General of New Hampshire,
Douglas N. Jones,
Assistant Attorney General, and
Eleni M. Constantine, and by
the Attorneys General for their respective jurisdictions as
follows:
Grant Woods of Arizona,
Winston Bryant of
Arkansas,
Donald E. Lungren of California,
Gale A.
Norton of Colorado,
Robert A. Butterworth of Florida,
Larry EchoHawk of Idaho,
Roland W Burris of Illinois,
Bonnie J.
Campbell of Iowa,
Robert T. Stephan
of Kansas,
Richard P. I eyoub of Louisiana, J.
Joseph
Curran, Jr., of Maryland,
Scott Harshbarger of
Massachusetts,
Hubert H. Humphrey III of Minnesota,
Mike
Moore of Mississippi,
Jeremiah W Nixon of Missouri,
Joseph P. Mazurek of Montana,
Deborah T. Poritz of
New Jersey,
Frankie Sue Del Papa of Nevada,
Tom Udall
of New Mexico, G.
Oliver Koppell of New York,
Michael
F.
Easley of North Carolina,
Heidi Heitkamp of North
Dakota,
Lee Fisher of Ohio,
Susan B. Loving of
Oklahoma,
Theodore R. Kulongoski of Oregon,
Ernest D.
Preate, Jr., of Pennsylvania,
T. Travis Medlock of South
Carolina,
Mark Barnett of South Dakota,
Charles W
Burson of Tennessee,
Jan Graham of Utah,
Jeffrey L.
Amestoy of Vermont,
Rosalie S.
Ballentine of the
Virgin Islands,
James S.
Gilmore III of Virginia,
Christine O.
Gregoire of Washington,
James E.
Doyle of Wisconsin, and
Joseph B. Meyer of Wyoming; and
for the Criminal Justice Legal Foundation by
Kent S.
Scheidegger and
Charles L. Hobson.
Briefs of
amici curiae urging affirmance were filed for
the American Civil Liberties Union et al. by
Steven R. Shapiro,
Carl Varady, Margaret Winter, Elizabeth Alexander, and
Alvin J.
Bronstein; and for the Edwin F. Mandel Legal
Aid Clinic by
Gary H. Palm.
475
30 years to life in a Hawaii prison. He was confined in the
Halawa Correctional Facility, a maximum security prison in central
Oahu. In August 1987, a prison officer escorted him from his cell
to the module program area. The officer subjected Conner to a strip
search, complete with an inspection of the rectal area. Conner
retorted with angry and foul language directed at the officer.
Eleven days later he received notice that he had been charged with
disciplinary infractions. The notice charged Conner with "high
misconduct" for using physical interference to impair a
correctional function, and "low moderate misconduct" for using
abusive or obscene language and for harassing employees.1
Conner appeared before an adjustment committee on August 28,
1987. The committee refused Conner's request to present witnesses
at the hearing, stating that "[w]itnesses were unavailable due to
move [sic] to the medium facility and being short staffed on the
modules." App. to Pet. for Cert. A-67. At the conclusion of
proceedings, the committee determined that Conner was guilty of the
alleged misconduct. It sentenced him to 30 days' disciplinary
segregation
1 Hawaii's prison regulations establish a hierarchy of
misconduct ranging from "greatest misconduct," Haw. Admin. Rule §
17-201-6(a) (1983), to "minor misconduct," § 17-201-10. Section
17-201-7 enumerates offenses punishable as "high misconduct" and
sets available punishment for such offenses at disciplinary
segregation up to 30 days or any sanction other than disciplinary
segregation. Section 17-201-9 lists offenses punishable as "low
moderate misconduct" and sets punishment at disciplinary
segregation up to four hours in cell, monetary restitution, or any
sanction other than disciplinary segregation. In addition to the
levels of misconduct which classify various misdeeds, the
regulations also define "serious misconduct" as "that which poses a
serious threat to the safety, security, or welfare of the staff,
other inmates or wards, or the institution and subjects the
individual to the imposition of serious penalties such as
segregation for longer than four hours." § 17-201-12. Such
misconduct is punished through adjustment committee procedures.
Ibid. The parties apparently concede that the physical
obstruction allegation constituted serious misconduct, but that the
low moderate misconduct charges did not.
476
in the Special Holding Unit2 for the physical obstruction
charge, and four hours segregation for each of the other two
charges to be served concurrent with the 30 days.
Id., at
A-66 to A-67. Conner's segregation began August 31, 1987, and ended
September 29, 1987.
Conner sought administrative review within 14 days of receiving
the committee's decision. Haw. Admin. Rule § 17-201-20(a) (1983).
Nine months later, the deputy administrator found the high
misconduct charge unsupported and expunged Conner's disciplinary
record with respect to that charge. App. 249. But before the deputy
administrator decided the appeal, Conner had brought this suit
against the adjustment committee chair and other prison officials
in the United States District Court for the District of Hawaii
based on Rev. Stat. § 1979, 42 U. S. C. § 1983. His amended
complaint prayed for injunctive relief, declaratory relief, and
damages for, among other things, a deprivation of procedural due
process in connection with the disciplinary hearing. The District
Court granted summary judgment in favor of the prison
officials.
The Court of Appeals for the Ninth Circuit reversed the
judgment.
Conner v.
Sakai, 15
F.3d 1463 (1993). It concluded that Conner had a liberty
interest in remaining free from disciplinary segregation and that
there was a disputed question of fact with respect to whether
Conner received all of the process due under this Court's
pronouncement in
Wolffv. McDonnell, 418 U. S. 539 (1974). 15
F. 3d, at 1466. The Court of Appeals based its conclusion on a
prison reg-
2 The Special Holding Unit (SHU) houses inmates placed in
disciplinary segregation, § 17-201-19(c), administrative
segregation, § 17-201-22, and protective custody, § 17-201-23.
Single-person cells comprise the SHU and conditions are
substantially similar for each of the three classifications of
inmates housed there. Compare Exh. 60, 1 App. 142-155, with Exh.
61, 1 App. 156-168. With the exception of one extra phone call and
one extra visiting privilege, inmates segregated for administrative
reasons receive the same privilege revocations as those segregated
for disciplinary reasons.
477
ulation that instructs the committee to find guilt when a charge
of misconduct is supported by substantial evidence. Haw. Admin.
Rule § 17-201-18(b)(2) (1983).3 The Court of Appeals reasoned from
Kentucky Dept. of Corrections v.
Thompson, 490 U. S. 454 (1989),
that the committee's duty to find guilt was nondiscretionary. From
the language of the regulation, it drew a negative inference that
the committee may not impose segregation if it does not find
substantial evidence of misconduct. 15 F. 3d, at 1466. It viewed
this as a state-created liberty interest, and therefore held that
respondent was entitled to call witnesses by virtue of our opinion
in
Wolff, supra. We granted the State's petition for
certiorari, 513 U. S. 921 (1994), and now reverse.
II
Our due process analysis begins with
Wolff There,
Nebraska inmates challenged the decision of prison officials to
revoke good time credits without adequate procedures. 418 U. S., at
553. Inmates earned good time credits under a state statute that
bestowed mandatory sentence reductions for good behavior, id., at
546, n. 6, revocable only for "'flagrant or serious misconduct,'"
id., at 545, n. 5 (citation omitted). We held that the Due Process
Clause itself does not create a liberty interest in credit for good
behavior, but that the statutory provision created a liberty
interest in a "shortened prison sentence" which resulted from good
time
3 The full text of the regulation reads as follows:
"Upon completion of the hearing, the committee may take the
matter under advisement and render a decision based upon evidence
presented at the hearing to which the individual had an opportunity
to respond or any cumulative evidence which may subsequently come
to light may be used as a permissible inference of guilt, although
disciplinary action shall be based upon more than mere silence.
A finding of guilt shall be made where:
"(1) The inmate or ward admits the violation or pleads
guilty.
"(2) The charge is supported by substantial evidence." Haw.
Admin.
Rule § 17-201-18(b)(2) (1983) (emphasis added).
478
credits, credits which were revocable only if the prisoner was
guilty of serious misconduct.
Id., at 557. The Court
characterized this liberty interest as one of "real substance"
ibid., and articulated minimum procedures necessary to reach
a "mutual accommodation between institutional needs and objectives
and the provisions of the Constitution," id., at 556. Much of
Wolffs contribution to the landscape of prisoners' due
process derived not from its description of liberty interests, but
rather from its intricate balancing of prison management concerns
with prisoners' liberty in determining the amount of process due.
Its short discussion of the definition of a liberty interest,
Wolff, supra, at 556-558, led to a more thorough treatment
of the issue in
Meachum v.
Fano, 427 U. S. 215 (1976).
Inmates in
Meachum sought injunctive relief, declaratory
relief, and damages by reason of transfers from a Massachusetts
medium security prison to a maximum security facility with
substantially less favorable conditions. The transfers were ordered
in the aftermath of arson incidents for which the transferred
inmates were thought to be responsible, and did not entail a loss
of good time credits or any period of disciplinary confinement.
Id., at 222. The Court began with the proposition that the
Due Process Clause does not protect every change in the conditions
of confinement having a substantial adverse impact on the prisoner.
Id., at 224. It then held that the Due Process Clause did
not itself create a liberty interest in prisoners to be free from
intrastate prison transfers.
Id., at 225. It reasoned that
transfer to a maximum security facility, albeit one with more
burdensome conditions, was "within the normal limits or range of
custody which the conviction has authorized the State to impose."
Ibid.; see also
Montanye v.
Haymes, 427 U. S. 236, 242
(1976). The Court distinguished
Wolffby noting that there
the protected liberty interest in good time credit had been created
by state law; here no comparable Massachusetts law stripped
officials of the discretion to transfer prisoners to
alternative
479
facilities "for whatever reason or for no reason at all."
Meachum, supra, at 228.4
Shortly after
Meachum, the Court embarked on a different
approach to defining state-created liberty interests. Because
dictum in
Meachum distinguished
Wolff by focusing on
whether state action was mandatory or discretionary, the Court in
later cases laid ever greater emphasis on this somewhat mechanical
dichotomy.
Greenholtz v.
Inmates of Neb. Penal and
Correctional Complex, 442 U. S. 1 (1979),
foreshadowed the methodology that would come to full fruition in
Hewitt v.
Helms, 459 U. S. 460 (1983). The
Greenholtz inmates alleged that they had been
unconstitutionally denied parole. Their claim centered on a state
statute that set the date for discretionary parole at the time the
minimum term of imprisonment less good time credits expired. The
statute ordered release of a prisoner at that time, unless one of
four specific conditions were shown. 442 U. S., at 11. The Court
apparently accepted the inmates' argument that the word "shall" in
the statute created a legitimate expectation of release absent the
requisite finding that one of the justifications for deferral
existed, since the Court concluded that some measure of
constitutional protection was due. Nevertheless, the State
ultimately prevailed because the minimal process it had awarded the
prisoners was deemed sufficient under the Fourteenth Amendment.
4 Later cases, such as
Vitek v.
Jones, 445 U. S. 480 (1980),
found that the Due Process Clause itself confers a liberty interest
in certain situations. In
Vitek, a prisoner was to be
transferred involuntarily to a state mental hospital for treatment
of a mental disease or defect; the Court held that his right to be
free from such transfer was a liberty interest irrespective of
state regulation; it was "qualitatively different" from the
punishment characteristically suffered by a person convicted of
crime, and had "stigmatizing consequences."
Id., at 493-494.
Washington v.
Harper, 494 U. S. 210, 221-222 (1990),
likewise concluded that, independent of any state regulation, an
inmate had a liberty interest in being protected from the
involuntary administration of psychotropic drugs.
480
The Court made explicit in
Hewitt what was implicit in
Greenholtz. In evaluating the claims of inmates who had been
confined to administrative segregation, it first rejected the
inmates' claim of a right to remain in the general population as
protected by the Due Process Clause on the authority of
Meachum,
Montanye, and
Vitek. The Due Process Clause standing
alone confers no liberty interest in freedom from state action
taken "'within the sentence imposed.'" 459 U. S., at 468. It then
concluded that the transfer to less amenable quarters for
nonpunitive reasons was "ordinarily contemplated by a prison
sentence."
Ibid. Examination of the possibility that the
State had created a liberty interest by virtue of its prison
regulations followed. Instead of looking to whether the State
created an interest of "real substance" comparable to the good time
credit scheme of
Wolff, the Court asked whether the State
had gone beyond issuing mere procedural guidelines and had used
"language of an unmistakably mandatory character" such that the
incursion on liberty would not occur "absent specified substantive
predicates."
Id., at 471-472. Finding such mandatory
directives in the regulations before it, the Court decided that the
State had created a protected liberty interest. It nevertheless,
held, as it had in
Greenholtz, that the full panoply of
procedures conferred in
Wolff were unnecessary to safeguard
the inmates' interest and, if imposed, would undermine the prison's
management objectives.
As this methodology took hold, no longer did inmates need to
rely on a showing that they had suffered a "'grievous loss'" of
liberty retained even after sentenced to terms of imprisonment.
Morrissey v.
Brewer, 408 U. S. 471, 481 (1972)
(citation omitted). For the Court had ceased to examine the
"nature" of the interest with respect to interests allegedly
created by the State. See
ibid.; Board of Regents of State
Colleges v.
Roth, 408 U. S. 564, 571
(1972). In a series of cases since
Hewitt, the Court has
wrestled with the language of intricate, often rather routine
prison guidelines
481
to determine whether mandatory language and substantive
predicates created an enforceable expectation that the State would
produce a particular outcome with respect to the prisoner's
conditions of confinement.
In
Olim v.
Wakinekona, 461 U. S. 238 (1983), the
claimants identified prison regulations that required a particular
kind of hearing before the prison administrator could, in his
discretion, effect an interstate transfer to another prison.
Parsing the language of the regulation led the Court to hold that
the discretionary nature of the transfer decision negated any
state-created liberty interest.
Id., at 249-250.
Kentucky
Dept. of Corrections v.
Thompson, 490 U. S. 454 (1989),
dealt with regulations governing the visitation privileges of
inmates. Asserting that a regulation created an absolute right to
visitors absent a finding of certain substantive predicates, the
inmates sought review of the adequacy of the procedures. As in
Wakinekona, the Court determined the regulation left visitor
exclusion to the discretion of the officials, and refused to
elevate such expectations to the level of a liberty interest. 490
U. S., at 464-465.
By shifting the focus of the liberty interest inquiry to one
based on the language of a particular regulation, and not the
nature of the deprivation, the Court encouraged prisoners to comb
regulations in search of mandatory language on which to base
entitlements to various state-conferred privileges. Courts have, in
response, and not altogether illogically, drawn negative inferences
from mandatory language in the text of prison regulations. The
Court of Appeals' approach in this case is typical: It inferred
from the mandatory directive that a finding of guilt "shall" be
imposed under certain conditions the conclusion that the absence of
such conditions prevents a finding of guilt.
Such a conclusion may be entirely sensible in the ordinary task
of construing a statute defining rights and remedies available to
the general public. It is a good deal less sensible in the case of
a prison regulation primarily designed to
482
guide correctional officials in the administration of a prison.
Not only are such regulations not designed to confer rights on
inmates, but the result of the negative implication jurisprudence
is not to require the prison officials to follow the negative
implication drawn from the regulation, but is instead to attach
procedural protections that may be of quite a different nature.
Here, for example, the Court of Appeals did not hold that a finding
of guilt could
not be made in the
absence of
substantial evidence. Instead, it held that the "liberty interest"
created by the regulation entitled the inmate to the procedural
protections set forth in
Wolff
Hewitt has produced at least two undesirable effects.
First, it creates disincentives for States to codify prison
management procedures in the interest of uniform treatment. Prison
administrators need be concerned with the safety of the staff and
inmate population. Ensuring that welfare often leads prison
administrators to curb the discretion of staff on the front line
who daily encounter prisoners hostile to the authoritarian
structure of the prison environment. Such guidelines are not set
forth solely to benefit the prisoner. They also aspire to instruct
subordinate employees how to exercise discretion vested by the
State in the warden, and to confine the authority of prison
personnel in order to avoid widely different treatment of similar
incidents. The approach embraced by
Hewitt discourages this
desirable development: States may avoid creation of "liberty"
interests by having scarcely any regulations, or by conferring
standardless discretion on correctional personnel.
Second, the
Hewitt approach has led to the involvement of
federal courts in the day-to-day management of prisons, often
squandering judicial resources with little offsetting benefit to
anyone. In so doing, it has run counter to the view expressed in
several of our cases that federal courts ought to afford
appropriate deference and flexibility to state officials trying to
manage a volatile environment.
Wolff, 418 U. S., at 561-563;
Hewitt, 459 U. S., at 470-471;
Jones v.
North
Carolina Prisoners' Labor Union, Inc., 433 U. S. 119,
483
125 (1977). Such flexibility is especially warranted in the
fine-tuning of the ordinary incidents of prison life, a common
subject of prisoner claims since
Hewitt. See,
e. g.,
Klos v.
Haskell, 48 F.3d
81, 82 (CA2 1995) (claiming liberty interest in right to
participate in "shock program"-a type of boot camp for inmates);
Segal v.
Biller, No. 94-35448, 1994 U. S. App. LEXIS
30628 (CA9, Oct. 31, 1994) (unpublished) (claiming liberty interest
in a waiver of the travel limit imposed on prison furloughs);
Burgin v.
Nix, 899 F.2d
733, 735 (CA8 1990) (claiming liberty interest in receiving a
tray lunch rather than a sack lunch);
Spruytte v.
Walters, 753 F.2d
498, 506-508 (CA6 1985) (finding liberty interest in receiving
a paperback dictionary due to a rule that states a prisoner " 'may
receive any book ... which does not present a threat to the order
or security of the institution''') (citation omitted);
Lyon
v.
Farrier, 727 F.2d
766, 768-769 (CA8 1984) (claiming liberty interest in freedom
from transfer to a smaller cell without electrical outlets for
televisions and liberty interest in a prison job);
United
States v.
Michigan, 680 F. Supp. 270, 277 (WD Mich.
1988) (finding liberty interest in not being placed on food loaf
diet).
In light of the above discussion, we believe that the search for
a negative implication from mandatory language in prisoner
regulations has strayed from the real concerns undergirding the
liberty protected by the Due Process Clause. The time has come to
return to the due process principles we believe were correctly
established and applied in
Wolff and
Meachum.5
Following
Wolff, we recognize that States
5 Such abandonment of
Hewitt's methodology does not
technically require us to overrule any holding of this Court. The
Court in Olim v.
Wakinekona, 461 U. S. 238 (1983), and
Kentucky Dept. of Corrections v.
Thompson, 490 U. S. 454 (1989),
concluded no liberty interest was at stake. Although it did locate
a liberty interest in
Hewitt, it concluded that due process
required no additional procedural guarantees for the inmate. As
such, its answer to the anterior question of whether the inmate
possessed a liberty interest at all was unnecessary to the
disposition of the case. Our decision today only abandons an
approach that in practice is difficult to administer and which
produces anomalous results.
484
may under certain circumstances create liberty interests which
are protected by the Due Process Clause. See also
Board of
Pardons v.
Allen, 482 U. S. 369 (1987). But
these interests will be generally limited to freedom from restraint
which, while not exceeding the sentence in such an unexpected
manner as to give rise to protection by the Due Process Clause of
its own force, see,
e. g., Vitek, 445 U. S., at 493
(transfer to mental hospital), and
Washington, 494 U. S., at
221-222 (involuntary administration of psychotropic drugs),
nonetheless imposes atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life.
Conner asserts, incorrectly, that any state action taken for a
punitive reason encroaches upon a liberty interest under the Due
Process Clause even in the absence of any state regulation. Neither
Bell v.
Wolfish, 441 U. S. 520 (1979), nor
Ingraham v.
Wright, 430 U. S. 651 (1977),
requires such a rule.
Bell dealt with the interests of
pretrial detainees and not convicted prisoners. See also
United
States v.
Salerno, 481 U. S. 739, 747 (1987)
(distinguishing between "impermissible punishment" and "permissible
regulation" of pretrial detainees). The Court in
Bell
correctly noted that a detainee "may not be punished prior to an
adjudication of guilt in accordance with due process of law." 441
U. S., at 535. The Court expressed concern that a State would
attempt to punish a detainee for the crime for which he was
indicted via preconviction holding conditions.
Id., at 539.
Such a course would improperly extend the legitimate reasons for
which such persons are detained-to ensure their presence at
tria1.6
6 Similar concerns drove the conclusion in
Kennedy v.
MendozaMartinez, 372 U. S. 144 (1963),
holding that free citizens must receive procedural protections
prior to revocation of citizenship for draft evasion. Without
discussing "liberty interests," the Court recognized that
deprivation of the "most precious right" of citizenship
necessitated process by way of jury trial under the Fifth and Sixth
Amendments.
Id., at 159. As in
Bell, the Court feared
the Government would enforce the criminal
485
The same distinction applies to
Ingraham, which addressed
the rights of schoolchildren to remain free from arbitrary corporal
punishment. The Court noted that the Due Process Clause
historically encompassed the notion that the State could not
"physically punish an individual except in accordance with due
process of law" and so found schoolchildren sheltered. 430 U. S.,
at 674. Although children sent to public school are lawfully
confined to the classroom, arbitrary corporal punishment represents
an invasion of personal security to which their parents do not
consent when entrusting the educational mission to the State.
The punishment of incarcerated prisoners, on the other hand,
serves different aims than those found invalid in
Bell and
Ingraham. The process does not impose retribution in lieu of
a valid conviction, nor does it maintain physical control over free
citizens forced by law to subject themselves to state control over
the educational mission. It effectuates prison management and
prisoner rehabilitative goals. See
State v.
Alvey, 67
Haw. 49, 55, 678 P. 2d 5, 9 (1984). Admittedly, prisoners do not
shed all constitutional rights at the prison gate,
Wolff,
418 U. S., at 555, but" '[l]awful incarceration brings about the
necessary withdrawal or limitation of many privileges and rights, a
retraction justified by the considerations underlying our penal
system.'''
Jones, 433 U. S., at 125, quoting
Price v.
Johnston, 334
U. S. 266, 285 (1948). Discipline by prison officials in
response to a wide range of misconduct falls within the expected
perimeters of the sentence imposed by a court of law.
This case, though concededly punitive, does not present a
dramatic departure from the basic conditions of Conner's
indeterminate sentence. Although Conner points to dicta in cases
implying that solitary confinement automatically triggers due
process protection,
Wolff, supra, at 571, n. 19;
Baxter v.
Palmigiano, 425 U. S. 308, 323 (1976)
(assuming with-
law punishing draft evasion through the back door of
denaturalization without prosecution for said crimes. 372 U. S., at
186.
486
out deciding that freedom from punitive segregation for
"'serious misconduct'" implicates a liberty interest, holding only
that the prisoner has no right to counsel) (citation omitted), this
Court has not had the opportunity to address in an argued case the
question whether disciplinary confinement of inmates itself
implicates constitutional liberty interests. We hold that Conner's
discipline in segregated confinement did not present the type of
atypical, significant deprivation in which a State might
conceivably create a liberty interest. The record shows that, at
the time of Conner's punishment, disciplinary segregation, with
insignificant exceptions, mirrored those conditions imposed upon
inmates in administrative segregation and protective custody.7 We
note also that the State expunged Conner's disciplinary record with
respect to the "high misconduct" charge nine months after Conner
served time in segregation. Thus, Conner's confinement did not
exceed similar, but totally discretionary, confinement in either
duration or degree of restriction. Indeed, the conditions at Halawa
involve significant amounts of "lockdown time" even for inmates in
the general population.8 Based on a comparison between inmates
inside and outside disciplinary segregation, the State's actions in
placing him there for 30 days did not work a major disruption in
his environment.9
7 Hawaii has repealed the regulations describing the structure
of inmate privileges in the SHU when confined in administrative
segregation, Brief for Petitioner 6, n. 3, but it retains inmate
classification category "Maximum Custody I" in which inmate
privileges are comparably limited. App. to Brief for Petitioner
48a-71a.
8 General population inmates are confined to cells for anywhere
between 12 and 16 hours a day, depending on their classification. 1
App. 126.
9 The State notes, ironically, that Conner requested that he be
placed in protective custody after he had been released from
disciplinary segregation.
Id., at 43. Conner's own
expectations have at times reflected a personal preference for the
quietude of the SHU Although we do not think a prisoner's
subjective expectation is dispositive of the liberty inter-
487
Nor does Conner's situation present a case where the State's
action will inevitably affect the duration of his sentence. Nothing
in Hawaii's code requires the parole board to deny parole in the
face of a misconduct record or to grant parole in its absence, Haw.
Rev. Stat. §§ 353-68, 353-69 (1985), even though misconduct is by
regulation a relevant consideration, Haw. Admin. Rule §
23-700-33(b) (effective Aug. 1992). The decision to release a
prisoner rests on a myriad of considerations. And, the prisoner is
afforded procedural protection at his parole hearing in order to
explain the circumstances behind his misconduct record. Haw. Admin.
Rule §§ 23-700-31(a), 23-700-35(c), 23-700-36 (1983). The chance
that a finding of misconduct will alter the balance is simply too
attenuated to invoke the procedural guarantees of the Due Process
Clause. The Court rejected a similar claim in
Meachum, 427
U. S., at 229, n. 8 (declining to afford relief on the basis that
petitioner's transfer record might affect his future confinement
and possibility of parole).l0
We hold, therefore, that neither the Hawaii prison regulation in
question, nor the Due Process Clause itself, afforded Conner a
protected liberty interest that would entitle him to the procedural
protections set forth in
Wolff The regime to which he was
subjected as a result of the misconduct hearing was within the
range of confinement to be normally expected for one serving an
indeterminate term of 30 years to life.ll
est analysis, it does provide some evidence that the conditions
suffered were expected within the contour of the actual sentence
imposed.
10 Again, we note that Hawaii expunged Conner's record with
respect to the "high misconduct" charge, so he personally has no
chance of receiving a delayed release from the parole board as a
direct result of that allegation.
11 Prisoners such as Conner, of course, retain other protection
from arbitrary state action even within the expected conditions of
confinement. They may invoke the First and Eighth Amendments and
the Equal Protec-
488
The judgment of the Court of Appeals is accordingly
Reversed.
JUSTICE GINSBURG, with whom JUSTICE STEVENS joins,
dissenting.
Respondent DeMont Conner is a prisoner in a maximumsecurity
Hawaii prison. After Conner reacted angrily to a strip search, a
misconduct report charged him with obstructing the performance of a
correctional officer's duties, using abusive language when talking
to a staff member, and harassing a staff member. Conner received
notice of the charges and had an opportunity, personally, to answer
them. However, the disciplinary committee denied his request to
call as witnesses staff members he said would attest to his
innocence.
Conner contested the misconduct charges, but, according to the
report of the disciplinary committee, he admitted his hesitation to
follow orders and his use of profanity during the search. Based on
Conner's statement to the committee, and on written statements
submitted by the officer who conducted the search and his
supervisor, the committee found Conner guilty of all charges.
Sentenced to 30 days in the prison's segregation unit, Conner
pursued an administrative appeal, which ultimately resulted in
reversal of the obstruction conviction.
Unlike the Court, I conclude that Conner had a liberty interest,
protected by the Fourteenth Amendment's Due Process Clause, in
avoiding the disciplinary confinement he endured. As JUSTICE BREYER
details, Conner's prison punishment effected a severe alteration in
the conditions of his incarceration. See
post, at 494.
Disciplinary confine-
tion Clause of the Fourteenth Amendment where appropriate, and
may draw upon internal prison grievance procedures and state
judicial review where available.
489
ment as punishment for "high misconduct" not only deprives
prisoners of privileges for protracted periods; unlike
administrative segregation and protective custody, disciplinary
confinement also stigmatizes them and diminishes parole prospects.
Those immediate and lingering consequences should suffice to
qualify such confinement as liberty depriving for purposes of Due
Process Clause protection. See
Meachum v.
Fano,
427 U. S. 215,
234-235 (1976) (STEVENS, J., dissenting).l
I see the Due Process Clause itself, not Hawaii's prison code,
as the wellspring of the protection due Conner. Deriving protected
liberty interests from mandatory language in local prison codes
would make of the fundamental right something more in certain
States, something less in others. Liberty that may vary from
Ossining, New York, to San Quentin, California, does not resemble
the "Liberty" enshrined among "unalienable Rights" with which all
persons are "endowed by their Creator." Declaration of
Independence; see
Meachum, 427 U. S., at 230 (STEVENS, J.,
dissenting) ("[T]he Due Process Clause protects [the unalienable
liberty recognized in the Declaration of Independence] rather
1 The Court reasons that Conner's disciplinary confinement,
"with insignificant exceptions, mirrored thEe] conditions imposed
upon inmates in administrative segregation and protective custody,"
ante, at 486, and therefore implicated no constitutional
liberty interest. But discipline means punishment for misconduct;
it rests on a finding of wrongdoing that can adversely affect an
inmate's parole prospects. Disciplinary confinement therefore
cannot be bracketed with administrative segregation and protective
custody, both measures that carry no long-term consequences. The
Court notes, however, that the State eventually expunged Conner's
disciplinary record, ibid., as a result of his successful
administrative appeal. But hindsight cannot tell us whether a
liberty interest existed at the outset. One must, of course, know
at the start the character of the interest at stake in order to
determine
then what process, if any, is constitutionally
due. "All's well that ends well" cannot be the measure here.
490
than the particular rights or privileges conferred by specific
laws or regulations.").2
Deriving the prisoner's due process right from the code for his
prison, moreover, yields this practical anomaly: a State that
scarcely attempts to control the behavior of its prison guards may,
for that very laxity, escape constitutional accountability; a State
that tightly cabins the discretion of its prison workers may, for
that attentiveness, become vulnerable to constitutional claims. An
incentive for ruleless prison management disserves the State's
penological goals and jeopardizes the welfare of prisoners.
To fit the liberty recognized in our fundamental instrument of
government, the process due by reason of the Constitution similarly
should not depend on the particularities of the local prison's
code. Rather, the basic, universal requirements are notice of the
acts of misconduct prison officials say the inmate committed, and
an opportunity to respond to the charges before a trustworthy
decisionmaker. See generally Friendly, "Some Kind of Hearing," 123
U. Pa. L. Rev. 1267, 1278-1281 (1975) (an unbiased tribunal, notice
of the proposed government action and the grounds asserted for it,
and an opportunity to present reasons why the proposed action
should not be taken are fundamental; additional safeguards depend
on the importance of the private interest, the utility of the
particular safeguards, and the burden of affording them).
2 The Court describes a category of liberty interest that is
something less than the one the Due Process Clause itself shields,
something more than anything a prison code provides. The State may
create a liberty interest, the Court tells us, when "atypical and
significant hardship [would be borne by] the inmate in relation to
the ordinary incidents of prison life."
Ante, at 484; see
ante, at 486. What design lies beneath these key words? The
Court ventures no examples, leaving consumers of the Court's work
at sea, unable to fathom what would constitute an "atypical,
significant deprivation," ibid., and yet not trigger protection
under the Due Process Clause directly.
491
For the reasons JUSTICE BREYER cogently presents, see
post, at 504, a return of this case to the District Court
would be unavoidable if it were recognized that Conner was deprived
of liberty within the meaning of the Due Process Clause. But upon
such a return, a renewed motion for summary judgment would be in
order, for the record, as currently composed, does not show that
Conner was denied any procedural protection warranted in his
case.
In particular, a call for witnesses is properly refused when the
projected testimony is not relevant to the matter in controversy.
See
Wolffv. McDonnell, 418 U. S. 539, 566 (1974)
(justifications for a prison tribunal's refusing to hear witnesses
are "irrelevance, lack of necessity, [and] the hazards [to
institutional safety or correctional goals] presented in individual
cases"). Unless Conner were to demonstrate, in face of the
disciplinary committee's stated reliance on his own admissions,
that an issue of material fact is genuinely in controversy, see
Fed. Rules Civ. Proc. 56(c), (e), his due process claim would
fail.
***
Because I conclude that Conner was deprived of liberty within
the meaning of the Due Process Clause, I dissent from the judgment
of the Court. I would return the case for a precisely focused
determination whether Conner received the process that was indeed
due.
JUSTICE BREYER, with whom JUSTICE SOUTER joins, dissenting.
The specific question in this case is whether a particular
punishment that, among other things, segregates an inmate from the
general prison population for violating a disciplinary rule
deprives the inmate of "liberty" within the terms of the Fourteenth
Amendment's Due Process Clause. The majority, asking whether that
punishment "imposes atypical and significant hardship on the inmate
in relation to the ordi-
492
nary incidents of prison life,"
ante, at 484, concludes
that it does not do so. The majority's reasoning, however,
particularly when read in light of this Court's precedents, seems
to me to lead to the opposite conclusion. And, for that reason, I
dissent.
I
The respondent, DeMont Conner, is an inmate at Halawa
Correctional Facility, a maximum security prison in Hawaii. In
August 1987, as a result of an altercation with a guard, prison
authorities charged Conner with violating several prison
disciplinary regulations, including one that prohibited "physical
interference ... resulting in the obstruction ... of the
performance of a correctional function .... " Haw. Admin. Rule §
17-201-7 (14) (1983). The prison's "adjustment committee" found
Conner "guilty" and imposed a punishment of 30 days of
"disciplinary segregation." Eventually, but after Conner had served
the 30 days, a review official in the prison set aside the
committee's determination, and expunged it from Conner's
record.
In the meantime, Conner had brought this "civil rights" action
in Federal District Court in Hawaii. See Rev. Stat. § 1979, 42 U.
S. C. § 1983. He claimed, among other things, that the adjustment
committee's failure to let him call certain witnesses had deprived
him of his "liberty ... without due process oflaw." U. S. Const.,
Amdt. 14, § 1. The District Court granted summary judgment for the
prison officials. But, the Ninth Circuit agreed with Conner that
the committee's punishment had deprived him of procedurally
protected "liberty."
15 F.3d
1463, 1466 (1993). It remanded the case to the District Court
to determine whether the refusal to allow Conner to call the
particular witnesses denied him of the process he was "due." See
Part V,
infra.
The issue before this Court is whether Conner's particular
punishment amounted to a deprivation of Conner's "liberty" within
the meaning of the Due Process Clause.
493
II
The Fourteenth Amendment says that a State shall not "deprive
any person of life, liberty, or property, without due process of
law." U. S. Const., Arndt. 14, § 1. In determining whether state
officials have deprived an inmate, such as Conner, of a
procedurally protected "liberty," this Court traditionally has
looked either (1) to the nature of the deprivation (how severe, in
degree or kind) or (2) to the State's rules governing the
imposition of that deprivation (whether they, in effect, give the
inmate a "right" to avoid it). See,
e. g.,
Kentucky Dept.
of Corrections v.
Thompson, 490 U. S. 454,
460-461,464-465 (1989). Thus, this Court has said that certain
changes in conditions may be so severe or so different from
ordinary conditions of confinement that, whether or not state law
gives state authorities broad discretionary power to impose them,
the state authorities may not do so "without complying with minimum
requirements of due process."
Vitek v.
Jones,
445 U. S. 480,
491-494 (1980) ("involuntary commitment to a mental hospital");
Washington v.
Harper, 494 U. S. 210, 221-222
(1990) ("unwanted administration of antipsychotic drugs"). The
Court has also said that deprivations that are less severe or more
closely related to the original terms of confinement nonetheless
will amount to deprivations of procedurally protected liberty,
provided that state law (including prison regulations) narrowly
cabins the legal power of authorities to impose the deprivation
(thereby giving the inmate a kind of right to avoid it). See
Hewitt v.
Helms, 459 U. S. 460, 471-472
(1983) (liberty interest created by regulations "requiring ... that
administrative segregation will not occur absent specified
substantive predicates");
Thompson, supra, at 461 ("method
of inquiry ... always has been to examine closely the language of
the relevant statutes and regulations");
Board of Pardons v.
Allen, 482 U.
S. 369, 382 (1987) (O'CONNOR, J., dissenting) (insisting upon
"standards that place real limits on decisionmaker
discretion");
494
Olim v.
Wakinekona, 461 U. S. 238, 248-249
(1983) (existence of liberty interest regarding interstate prison
transfers depends upon state regulations);
Montanye v.
Haymes, 427 U.
S. 236, 242 (1976) (same for intrastate prison transfers);
Meachum v.
Fano, 427 U. S. 215, 225-227
(1976) (same).
If we apply these general pre-existing principles to the
relevant facts before us, it seems fairly clear, as the Ninth
Circuit found, that the prison punishment here at issue deprived
Conner of constitutionally protected "liberty." For one thing, the
punishment worked a fairly major change in Conner's conditions. In
the absence of the punishment, Conner, like other inmates in
Halawa's general prison population would have left his cell and
worked, taken classes, or mingled with others for eight
hours each day. See Exh. 36, App. 126; Exh. 6, id., at 101.
As a result of disciplinary segregation, however, Conner, for 30
days, had to spend his entire time alone in his cell (with the
exception of 50
minutes each day on average for brief
exercise and shower periods, during which he nonetheless remained
isolated from other inmates and was constrained by leg irons and
waist chains). See Exh. 61,
id., at 156-157, 166. Cf.
Hughes v.
Rowe, 449 U. S. 5, 9, 11 (1980)
(per curiam) (disciplinary "[sJegregation of a prisoner
without a prior hearing may violate due process if the postponement
of procedural protections is not justified by apprehended emergency
conditions");
Wolff v.
McDonnell, 418 U. S. 539, 552, n. 9,
571-572, n. 19 (1974) ("solitary confinement"-i.
e.,
segregation "in the usual 'disciplinary cell'" or a "'dry cell'
"-"represents a major change in the conditions of confinement");
Baxter v.
Palmigiano, 425 U. S. 308, 323 (1976)
(segregation for" 'serious misconduct'" triggers due process
protection) (citation omitted).
Moreover, irrespective of whether this punishment amounts to a
deprivation of liberty
independent of state law, here the
prison's own disciplinary rules severely cabin the authority of
prison officials to impose this kind of punishment. They provide
(among other things):
495
(a) that certain specified acts shall constitute "high
misconduct," Haw. Admin. Rule § 17-201-7a (1983) (emphasis
added);
(b) that misconduct punishable by more than four hours in
disciplinary segregation "shall be punished" through a prison
"adjustment committee" (composed of three unbiased members), §§
17-201-12,13;
(c) that, when an inmate is charged with such misconduct, then
(after notice and a hearing) "[a] finding of guilt shall be made"
if the charged inmate admits guilt or the "charge is supported by
substantial evidence," §§ 17-201-18(b), (b)(2); see §§ 17-201-16,
17; and
(d) that the "[s]anctions" for high misconduct that "may be
imposed as punishment ... shall include ... [d]isciplinary
segregation up to thirty days," § 17-201-7(b).
The prison rules thus: (1) impose a punishment that is
substantial, (2) restrict its imposition as a punishment to
instances in which an inmate has committed a defined offense, and
(3) prescribe nondiscretionary standards for determining whether or
not an inmate committed that offense. Accordingly, under this
Court's liberty-defining standards, imposing the punishment would
"deprive" Conner of "liberty" within the meaning of the Due Process
Clause. Compare
Hewitt v.
Helms, supra, at 471-472
(liberty interest created by regulations "requiring that ...
administrative segregation will not occur absent specified
substantive predicates"), with
Thompson, 490 U. S., at 457,
n. 2 (no liberty interest created by regulations which gave
officials broad discretion to refuse a visit whenever "there are
reasonable grounds to believe that," among other things, "[t]he
visit will be detrimental to the inmate's rehabilitation"). Thus,
under existing law, the Ninth Circuit correctly decided that the
punishment deprived Conner of procedurally protected liberty and
that the District Court should go on to decide whether or not
the
496
prison's procedures provided Conner with the "process" that is
"due."
III
The majority, while not disagreeing with this summary of
pre-existing law, seeks to change, or to clarify, that law's
"liberty" defining standards in one important respect. The majority
believes that the Court's present "cabining of discretion" standard
reads the Constitution as providing procedural protection for
trivial "rights," as, for example, where prison rules set forth
specific standards for the content of prison meals.
Ante, at
482-483. It adds that this approach involves courts too deeply in
routine matters of prison administration, all without sufficient
justification.
Ante, at 482. It therefore imposes a minimum
standard, namely, that a deprivation falls within the Fourteenth
Amendment's definition of "liberty" only if it "imposes atypical
and significant hardship on the inmate in relation to the ordinary
incidents of prison life."
Ante, at 484, 486.
I am not certain whether or not the Court means this standard to
change prior law radically. If so, its generality threatens the law
with uncertainty, for some lower courts may read the majority
opinion as offering significantly less protection against
deprivation of liberty, while others may find in it an extension of
protection to certain "atypical" hardships that pre-existing law
would not have covered. There is no need, however, for a radical
reading of this standard, nor any other significant change in
present law, to achieve the majority's basic objective, namely, to
read the Constitution's Due Process Clause to protect inmates
against deprivations of freedom that are important, not
comparatively insignificant. Rather, in my view, this concern
simply requires elaborating, and explaining, the Court's present
standards (without radical revision) in order to make clear that
courts must apply them in light of the purposes they were meant to
serve. As so read, the standards will not
497
create procedurally protected"liberty" interests where only
minor matters are at stake.
Three sets of considerations, taken together, support my
conclusion that the Court need not (and today's generally phrased
minimum standard therefore does not) significantly revise current
doctrine by deciding to remove minor prison matters from
federal-court scrutiny. First, although this Court has said, and
continues to say, that
some deprivations of an inmate's
freedom are so severe in kind or degree (or so far removed from the
original terms of confinement) that they amount to deprivations of
liberty, irrespective of whether state law (or prison rules) "cabin
discretion,"
e. g.,
ante, at 483-484;
Vitek v.
Jones, 445 U. S., at 491-494;
Washington v.
Harper, 494 U. S., at 221-222; cf.
Joint Anti-Fascist
Refugee Comm. v.
McGrath, 341 U. S. 123, 168 (1951)
(Frankfurter, J., concurring), it is not easy to specify just
when, or
how much of, a loss triggers this
protection. There is a broad middle category of imposed restraints
or deprivations that, considered by themselves, are neither
obviously so serious as to fall within, nor obviously so
insignificant as to fall without, the Clause's protection.
Second, the difficult line-drawing task that this middle
category implies helps to explain why this Court developed its
additional liberty-defining standard, which looks to local law
(examining whether that local law creates a "liberty" by
significantly limiting the discretion of local authorities to
impose a restraint). See,
e. g., Thompson, supra, at 461;
Hewitt, 459 U. S., at 471-472. Despite its similarity to the
way in which the Court determines the existence, or nonexistence,
of "property" for Due Process Clause purposes, the justification
for looking at local law is not the same in the prisoner liberty
context. In protecting property, the Due Process Clause often aims
to protect
reliance, say, reliance upon an "entitlement"
that local (i.
e., nonconstitutional) law itself has created
or helped to define. See
Board of Regents of State Colleges
v.
Roth, 408
U. S. 564, 577 (1972) ("It is a purpose of
498
the ancient institution of property to protect those claims upon
which people rely in their daily lives, reliance that must not be
arbitrarily undermined"). In protecting liberty, however, the Due
Process Clause protects, not this kind of reliance upon a
government-conferred benefit, but rather an absence of government
restraint, the very absence of restraint that we call freedom. Cf.
Meachum, 427 U. S., at 230-231 (STEVENS, J., dissenting)
(citing
Morrissey v.
Brewer, 408 U. S. 471, 482
(1972)).
Nevertheless, there are several
other important reasons,
in the prison context, to consider the provisions of state law. The
fact that a further deprivation of an inmate's freedom takes place
under local rules that cabin the authorities' discretionary power
to impose the restraint suggests,
other things being equal,
that the matter is more likely to have played an important role in
the life of the inmate. Cf.
Hewitt, supra, at 488 (STEVENS,
J., dissenting). It suggests, other things being equal, that the
matter is more likely of a kind to which procedural protections
historically have applied, and where they normally prove useful,
for such rules often
single out an inmate and condition a
deprivation upon the existence, or nonexistence, of particular
facts. Cf.
Thompson, 490 U. S., at 468-470 (Marshall, J.,
dissenting);
United States v.
Florida East Coast R.
Co., 410 U. S.
224, 244-245 (1973). It suggests, other things being equal,
that the matter will not involve highly judgmental administrative
matters that call for the wise exercise of discretion-matters where
courts reasonably should hesitate to second-guess prison
administrators. See
Meachum, supra, at 225. It suggests,
other things being equal, that the inmate will have thought that he
himself, through control of his own behavior, could have avoided
the deprivation, and thereby have believed that (in the absence of
his misbehavior) the restraint fell outside the "sentence imposed"
upon him. Cf.
Thompson, 490 U. S., at 464-465. Finally,
courts can identify the presence or absence of cabined discretion
fairly easily and
499
objectively, at least much of the time. Cf. id., at 461. These
characteristics of "cabined discretion" mean that courts can use it
as a kind of touchstone that can help them, when they consider the
broad middle category of prisoner restraints, to separate those
kinds of restraints that, in general, are more likely to call for
constitutionally guaranteed procedural protection, from those that
more likely do not. Given these reasons and the precedent, I
believe courts will continue to find this touchstone helpful as
they seek to apply the majority's middle category standard.
Third, there is, therefore, no need to apply the
"discretioncabining" approach-the basic purpose of which is to
provide a somewhat more objective method for identifying
deprivations of protected "liberty" within a broad middle range of
prisoner restraints-where a deprivation is unimportant enough (or
so similar in nature to ordinary imprisonment) that it rather
clearly falls
outside that middle category. Prison, by
design, restricts the inmates' freedom. And, one cannot properly
view unimportant matters that happen to be the subject of prison
regulations as substantially aggravating a loss that has already
occurred. Indeed, a regulation about a minor matter, for example, a
regulation that seems to cabin the discretionary power of a prison
administrator to deprive an inmate of, say, a certain kind of
lunch, may amount simply to an instruction to the administrator
about how to do his job, rather than a guarantee to the inmate of a
"right" to the status quo. Cf.
Colon v.
Schneider,
899 F.2d
660, 668 (CA7 1990) (rules governing use of Mace to subdue
inmates "directed toward the prison staff, not the inmates"). Thus,
this Court has never held that comparatively unimportant prisoner
"deprivations" fall within the scope of the Due Process Clause even
if local law limits the authority of prison administrators to
impose such minor deprivations. See
Thompson, supra, at 461,
n. 3 (leaving question open). And, in my view, it should now simply
specify that they do not.
500
I recognize that, as a consequence, courts must separate the
unimportant from the potentially significant, without the help of
the more objective "discretion-cabining" test. Yet, making that
judicial judgment seems no more difficult than many other judicial
tasks. See
Goss v.
Lopez, 419 U. S. 565, 576 (1975)
("de minimis" line defining property interests under the Due
Process Clause). It seems to me possible to separate less
significant matters such as television privileges, "sack" versus
"tray" lunches, playing the state lottery, attending an
ex-stepfather's funeral, or the limits of travel when on prison
furlough,
e. g., Lyon v.
Farrier, 727 F.2d
766, 768-769 (CA8 1984);
Burgin v.
Nix, 899 F.2d
733, 734-735 (CA8 1990)
(per curiam); Hatch v.
Sharp, 919 F.2d
1266, 1270 (CA7 1990);
Merritt v.
Broglin,
891 F.2d
169, 173-174 (CA7 1989);
Segal v.
Biller, No.
94-35448, 1994 U. S. App. LEXIS 30628, *4-*5 (CA9, Oct. 31, 1994)
(unpublished), from more significant matters, such as the solitary
confinement at issue here. Indeed, prison regulations themselves
may help in this respect, such as the regulations here which
separate (from more serious matters) "low moderate" and "minor"
misconduct. Compare, on the one hand, the maximum punishment for
"moderate" misconduct of two weeks of disciplinary segregation,
Haw. Admin. Rule § 17-201-8 (1983), with the less severe maximum
punishments, on the other hand, for "low moderate" and "minor"
misconduct, §§ 17-201-9, 10 (several hours of disciplinary
segregation and "[1]oss of privileges" such as "community
recreation; commissary; snacks; cigarettes, smoking; personal
visits-no longer than fifteen days; personal correspondence;
personal phone calls for not longer than fifteen days"; impounding
personal property; extra duty; and reprimand).
The upshot is the following: the problems that the majority
identifies suggest that this Court should make explicit the lower
definitional limit, in the prison context, of "liberty" under the
Due Process Clause-a limit that is already implicit in this Court's
precedent. See
Morrissey v.
Brewer,
501
408 U. S., at 481 (" 'grievous loss''') (citations omitted).
Those problems do not require abandoning that precedent.
Kentucky Dept. of Corrections v.
Thompson, supra;
Olim v.
Wakinekona, 461 U. S. 238 (1983);
Hewitt v.
Helms, 459 U. S. 460 (1983);
Meachum v.
Fano, 427 U. S. 215 (1976);
Montanye v.
Haymes, 427 U. S. 236 (1976).
IV
The Court today reaffirms that the "liberty" protected by the
Fourteenth Amendment includes interests that state law may create.
Ante, at 483-484. It excludes relatively minor matters from
that protection.
Ante, at 484 (requiring "atypical and
significant hardship on the inmate"). And, it does not question the
vast body of case law, including cases from this Court and every
Circuit, recognizing that segregation can deprive an inmate of
constitutionally protected "liberty." See,
e. g., Hewitt,
supra, at 472;
Rodi v.
Ventetuolo, 941 F.2d
22, 28 (CA1 1991);
Soto v.
Walker, 44 F.3d
169, 172 (CA2 1995);
Layton v.
Beyer, 953 F.2d
839, 849 (CA3 1992);
Baker v.
Lyles, 904 F.2d
925, 929 (CA4 1990);
Dzana v.
Foti, 829 F. 2d
558, 560-561 (CA51987);
Mackey v.
Dyke, 29 F.3d
1086, 1092 (CA6 1994);
Alston v.
DeBruyn,
13 F.3d
1036, 10421043 (CA7 1994);
Brown v.
Frey,
889 F.2d
159, 166 (CA8 1989);
Walker v.
Sumner, 14 F.3d
1415, 1419 (CA9 1994);
Reynoldson v.
Shillinger,
907 F.2d
124, 126-127 (CAlO 1990);
McQueen v.
Tabah,
839 F.2d
1525, 1528-1529 (CAll 1988);
Lucas v.
Hodges,
730 F.2d
1493, 1504-1506 (CADC 1984). That being so, it is difficult to
see why the Court reverses, rather than affirms, the Court of
Appeals in this case.
The majority finds that Conner's "discipline in segregated
confinement did not present" an "atypical, significant deprivation"
because of three special features of his case, taken together.
Ante, at 486. First, the punishment "mirrored" conditions
imposed upon inmates in "administrative segregation and protective
custody."
Ibid. Second, Hawaii's
502
prison regulations give prison officials broad discretion to
impose these other forms of
nonpunitive segregation.
Ibid. And, third, the State later "expunged Conner's
disciplinary record," thereby erasing any stigma and transforming
Conner's segregation for violation of a specific disciplinary rule
into the sort of "totally discretionar[y] confinement" that would
not have implicated a liberty interest.
Ibid.
I agree with the first two of the majority's assertions.
The conditions in administrative and disciplinary segregation
are relatively similar in Hawaii. Compare Exh. 60, App.
142-143, 152, with Exh. 61, id., at 156-157, 166. And, the rules
governing administrative segregation do, indeed, provide prison
officials with broad leeway. See Haw. Admin. Rule § 17-201-22(3)
(1983) ("Whenever ... justifiable reasons exist"). But, I disagree
with the majority's assertion about the relevance of the
expungement. How can a
later decision of prison authorities
transform Conner's segregation for a violation of a specific
disciplinary rule into a term of segregation under the
administrative rules? How can a later expungement restore to Conner
the liberty that, in fact, he had already lost? Because Conner was
found guilty under prison disciplinary rules, and was sentenced to
solitary confinement under those rules, the Court should look to
those rules.
In sum, expungement or no, Conner suffered a deprivation that
was significant, not insignificant. And, that deprivation took
place under disciplinary rules that, as described in Part II,
supra, do cabin official discretion sufficiently. I would
therefore hold that Conner was deprived of "liberty" within the
meaning of the Due Process Clause.
v
Other related legal principles, applicable here, should further
alleviate the majority's fear that application of the Due Process
Clause to significant prison disciplinary action, see
503
Part III,
supra, will lead federal courts to intervene
improperly (as the majority sees it) "in the day-to-day management
of prisons, often squandering judicial resources with little
offsetting benefit to anyone."
Ante, at 482. For one thing,
the "process" that is "due" in the context of prison discipline is
not the full blown procedure that accompanies criminal trials.
Rather, "due process" itself is a flexible concept, which, in the
context of a prison, must take account of the legitimate needs of
prison administration when deciding what procedural elements basic
considerations of fairness require. See,
e. g., Goss v.
Lopez, 419 U. S., at 578 (the" 'very nature of due process
negates any concept of inflexible procedures universally applicable
to every imaginable situation''') (quoting
Cafeteria &
Restaurant Workers v.
McElroy, 367 U. S. 886, 895
(1961));
Mathews v.
Eldridge, 424 U. S. 319, 334 (1976)
(" '[D]ue process is flexible and calls for such procedural
protections as the particular situation demands''') (quoting
Morrissey v.
Brewer, supra, at 481); Friendly, "Some
Kind of Hearing," 123 U. Pa. L. Rev. 1267, 1278 (1975) ("required
degree of procedural safeguards varies");
Wolff, 418 U. S.,
at 563-567 (requiring-in addition to notice, some kind of hearing,
and written reasons for the decision-permission to call witnesses
and to present documentary evidence when doing so "will not be
unduly hazardous to institutional safety or correctional goals,"
id., at 566).
More importantly for present purposes, whether or not a
particular procedural element
normally seems appropriate to
a certain
kind of proceeding, the Due Process Clause does
not require process unless, in the
individual case, there is
a relevant factual dispute between the parties. Just as courts do
not hold hearings when there is no "genuine" and "material" issue
of fact in dispute between the parties, see Fed. Rule Civ. Proc. 56
(summary judgment), so the Due Process Clause does not entitle an
inmate to additional disciplinary hearing procedure (such as the
calling of a witness) unless
504
there is a factual dispute (relevant to guilt) that the
additional procedure might help to resolve, see Codd v. Velger,
429 U. S. 624,
627 (1977) (per curiam).
I mention this latter legal point both because it illustrates a
legal protection against the meritless case, and because a review
of the record before us indicates that, in this very case, if we
were to affirm, it would pose an important obstacle to Conner's
eventual success. The record contains the prison adjustment
committee's report, which says that its finding of guilt rests upon
Conner's own admissions. The committee wrote that it "based" its
"decision" upon Conner's "statements" that (when he was
strip-searched) "he turned around" and "looked at" the officer, he
"then 'eyed up'" the officer, he "was hesitant to comply" with the
strip-search instructions, he "dislikes" the officer, and he spoke
an obscenity during the search process. App. to Pet. for Cert.
A-67. The record contains no explanation that we have found, either
in Conner's affidavits or elsewhere, of how the witnesses he wanted
to call (or the other procedures that he sought) could have led to
any evidence relevant to the facts at issue.
I note that the petitioner, in her petition for certiorari,
asked us, for this reason, to decide this case in her favor. But,
we cannot do so. Even were we to assume that this question falls
within the scope of the question we agreed to answer, the record
nonetheless reveals that the petitioner did not ask for summary
judgment on this basis. Thus, Conner has not had an opportunity to
point to "specific facts" that might explain why these witnesses
(or other procedures) were needed. See Fed. Rule Civ. Proc. 56(e)
("must set forth specific facts showing that there is a genuine
issue for trial"). Were this Court to affirm, the defense would
remain free to move for summary judgment on remand, and Conner
would have to respond with a specific factual showing in order to
avoid an adverse judgment.
505
Because the Court of Appeals remanded this case to the District
Court for consideration of these matters, and because, as explained
in Parts II-IV,
supra, I believe it correctly decided that
Conner was deprived of liberty within the meaning of the Due
Process Clause, I would affirm its judgment. For these reasons, I
respectfully dissent.
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