Wolff v. McDonnell

Mr. Justice Marshall,

with whom Mr. Justice Brennan joins,

concurring in part and dissenting in part.

I join Part VIII of the Court’s opinion, holding that the Complex may not prohibit inmates from assisting one another in the preparation of legal documents unless it provides adequate alternative legal assistance for the preparation of civil rights actions as well as petitions for habeas corpus relief. I also agree with the result reached in Part VII of the opinion of the Court, upholding the inspection of mail from attorneys for contraband by opening letters in the presence of the inmate. While I have previously expressed my view that the First Amendment rights of prisoners prohibit the reading of inmate mail, see Procunier v. Martinez, 416 U. S. 396, 422 (1973) (concurring opinion), and while I believe that inmates’ rights to counsel and to access to the courts are also implicated here, I do not see how any of these constitutional rights are infringed to any significant extent by the mere inspection of mail in the presence of the inmate.

My disagreement with the majority is over its disposition of the primary issue presented by this case, the extent of the procedural protections required by the Due Process Clause of the Fourteenth Amendment in prison disciplinary proceedings. I have previously stated my *581 view that a prisoner does not shed his basic constitutional rights at the prison gate, and I fully support the Court’s holding that the interest of inmates in freedom from imposition of serious discipline is a “liberty” entitled to due process protection. 1 But, in my view, the content which the Court gives to this due process protection leaves these noble holdings as little more than empty promises. To be sure, the Court holds that inmates are constitutionally entitled to advance written notice of the charges against them and a statement of the evidence relied on, the facts found, and the reasons supporting the disciplinary board’s decision. Apparently, an inmate is also constitutionally entitled to a hearing and an opportunity to speak in his own defense. These are valuable procedural safeguards, and I do not mean for a moment to denigrate their importance.

But the purpose of notice is to give the accused the opportunity to prepare a defense, and the purpose of a hearing is to afford him the chance to present that defense. Today’s decision deprives an accused inmate of any enforceable constitutional right to the procedural tools essential to the presentation of any meaningful defense, and makes the required notice and hearing formalities of little utility. Without the enforceable right *582 to call witnesses and present documentary evidence, an accused inmate is not guaranteed the right to present any defense beyond his own word. Without any right to confront and cross-examine adverse witnesses, the inmate is afforded no means to challenge the word of his accusers. Without these procedures, a disciplinary board cannot resolve disputed factual issues in any rational or accurate way. The hearing will thus amount to little more than a swearing contest, with each side telling its version of the facts — and, indeed, with only the prisoner’s story subject to being tested by cross-examination. In such a contest, it seems obvious to me that even the wrongfully charged inmate will invariably be the loser. I see no justification for the Court’s refusal to extend to prisoners these procedural safeguards which in every other context we have found to be among the “minimum requirements of due process.” Morrissey v. Brewer, 408 U. S. 471, 489 (1972) (emphasis added).

The Court states that it is “of the opinion that the 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.” Ante, at 566. Since the Court is not ordinarily in the business of giving neighborly advice to state correctional authorities, I think it fair to assume that this statement represents the considered judgment of the Court that the Constitution requires that an accused inmate be permitted to call defense witnesses and present documentary evidence. Still, the Court hardly makes this clear, and ends up deferring to the discretion of prison officials to the extent that the right recognized is, as my Brother Douglas demonstrates, post, at 597-598, practically unenforceable.

I would make clear that an accused inmate’s right to present witnesses and submit other evidence in his *583 defense is constitutionally protected and, if unnecessarily abridged, judicially enforceable. As we said only last Term: “Few rights are more fundamental than that of an accused to present witnesses in his own defense.” Chambers v. Mississippi, 410 U. S. 284, 302 (1973).

“The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the [hearing body] so it may decide where the truth lies.” Washington v. Texas, 388 U. S. 14, 19 (1967).

See also Morrissey v. Brewer, supra, at 489 ; In re Oliver, 333 U. S. 257, 273 (1948). The right to present the testimony of impartial witnesses and real evidence to corroborate his version of the facts is particularly crucial to an accused inmate, who obviously faces a severe credibility problem when trying to disprove the charges of a prison guard. See Clutchette v. Procunier, 497 F. 2d 809, 818 (CA9 1974); ABA Commission on Correctional Facilities and Services, Survey of Prison Disciplinary Practices and Procedures 19 (1974) (hereinafter ABA Survey).

I see no persuasive reason to justify the Court’s refusal to afford this basic right to an accused inmate. The majority cites the possible interference with “swift punishment.” But how often do we have to reiterate that the Due Process Clause “recognizes higher values than speed and efficiency”? Fuentes v. Shevin, 407 U. S. 67, 90-91, n. 22 (1972). Surely the brief prolongation of disciplinary hearings required to hear the testimony of a few witnesses before reaching what would otherwise seem to be a pre-ordained decision provides no support whatever for refusal to give accused inmates this right. Nor do I see the “obvious potential for disruption” that *584 the majority relies upon in the context of an inmate's right to call defense witnesses.

But even if the majority's fear in this regard is justified, the point that must be made clear is that the accused prisoner’s right to present witnesses is the constitutional rule and that the needs of prison security must be accommodated within a narrowly limited exception to that rule. The inmate’s right to call witnesses should, of course, be subject to reasonable limitation by the disciplinary board to prevent undue delay caused by an inmate’s calling numerous cumulative witnesses or witnesses whose contributions would be of marginal relevance. The right to call a particular witness could also justifiably be limited if necessary to protect a confidential informant against a substantial risk of reprisal. I agree with the Court that there is this much flexibility in the due process requirement. But in my view the exceptions made to the constitutional rule must be kept to an absolute minimum, and each refusal to permit witnesses justified in writing in the disciplinary file, a rule the majority finds “useful” but inexplicably refuses to prescribe. Ante, at 566. And if prison authorities persist in a niggardly interpretation of the inmates’ right to call witnesses, it must ultimately be up to the courts to exercise their great responsibility under our constitutional plan and enforce this fundamental constitutional right.

With respect to the rights of confrontation and cross-examination, the gulf between the majority opinion and my views is much wider. In part, this disagreement appears to stem from the majority’s view that these rights are just not all that important. Thus, the Court states— not surprisingly, without citation of authority, other than Mr. Justice White’s separate opinion in Arnett v. Kennedy, 416 U. S. 134, 171 (1974) — that confrontation and cross-examination “are not rights universally *585 applicable to all hearings.” Ante, at 567. And the Court suggests that while these procedures may be essential in situations where “serious deprivations” like loss of employment are at stake, they are not so essential here. I suppose the majority considers loss of a job to be a more serious penalty than the imposition of an additional prison sentence — on this record, ranging up to 18 months — which is the effective result of withdrawal of accumulated good time.

I could not disagree more, both with respect to the seriousness of the deprivation involved here and the importance of these rights. Our decisions flatly reject the Court’s view of the dispensability of confrontation and cross-examination. We have held that “[i]n almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” Goldberg v. Kelly, 397 U. S. 254, 269 (1970). And in Greene v. McElroy, 360 U. S. 474, 496 (1959), we found that the view that cross-examination and confrontation must be permitted whenever “governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings” was one of the “immutable” principles of our jurisprudence — immutable, that is, until today. See also Arnett v. Kennedy, supra, at 215 (Marshall, J., dissenting); Chambers v. Mississippi, supra, at 294-295 ; Morrissey v. Brewer, 408 U. S., at 489 ; In re Gault, 387 U. S. 1, 56-57 (1967). Surely confrontation and cross-examination are as crucial in the prison disciplinary context as in any other, if not more so. Prison disciplinary proceedings will invariably turn on disputed questions of fact, see Landman v. Royster, 333 F. Supp. 621, 653 (ED Va. 1971), and, in addition to the usual need for cross-examination to reveal mistakes of identity, faulty perceptions, or cloudy memories, there is a significant potential *586 for abuse of the disciplinary process by “persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy,” Greene v. McElroy, supra, at 496 , whether these be other inmates seeking revenge or prison guards seeking to vindicate their otherwise absolute power over the men under their control. See also Davis v. Alaska, 415 U. S. 308 . 317 (1974). I can see no rational means for resolving these disputed questions of fact without nroviding confrontation and cross-examination.

The majority, however, denies accused prisoners these basic constitutional rights, and leaves these matters for now to the “sound discretion” of prison officials. Since we already know how Nebraska authorities, at least, have chosen to exercise this discretion, the Court necessarily puts its stamp of approval on the State’s failure to provide confrontation and cross-examination. I see no persuasive justification for this result. The Court again cites concern for administrative efficiency in support of its holding: “Proceedings would inevitably be longer and tend to unmanageabilitv.” Ante, at 567. I can onlv assume that these are makeweights, for I refuse to believe that the Court would deny fundamental rights in reliance on such trivial and easily handled concerns.

A more substantial problem with permitting the accused inmate to demand confrontation with adverse witnesses is the need to preserve the secrecy of the identity of inmate informers and protect them from the danger of reprisal. I am well aware of the seriousness of this problem, and' I agree that in some circumstances this confidentiality must prevail over the accused’s right of confrontation. “But this concern for the safety of inmates does not justify a wholesale denial of the right to confront and cross-examine adverse witnesses.” Clutchette v. Procunier, 497 F. 2d, at 819 . The need to keep the identity of informants confidential will exist in only *587 a small percentage of disciplinary cases. Whether because of the “inmates’ code” or otherwise, the disciplinary process is rarely initiated by a fellow inmate and almost invariably by a correctional officer. I see no legitimate need to keep confidential the identity of a prison guard who files charges against an inmate; indeed, Nebraska, like most States, routinely informs accused prisoners of the identity of the correctional officer who is the charging party, if he does not already know. In the relatively few instances where inmates press disciplinary charges, the accused inmate often knows the identity of his accuser, as, for example, where the accuser was the victim of a physical assault.

Thus, the Court refuses to enforce prisoners’ fundamental procedural rights because of a legitimate concern for secrecy which must affect only a tiny fraction of disciplinary cases. This is surely permitting the tail to wag the constitutional dog. When faced with a similar problem in Morrissey v. Brewer, supra, we nonetheless held that the parolee had the constitutional right to confront and cross-examine adverse witnesses, and permitted an exception to be made “if the hearing officer determines that an informant would be subjected to risk of harm if his identity were disclosed.” 408 U. S., at 487 . In my view, the same approach would be appropriate here.

Aside from the problem of preserving the confidentiality of inmate informers, the Court does not require confrontation and cross-examination of known accusers, whether inmates or guards, and indeed does not even require cross-examination of adverse witnesses who actually testify at the hearing. Yet, as The Chief Justice recently observed, “ [c]ross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested,” Davis v. Alaska, supra, at 316 , and “ ‘[t]he main and essential purpose of con *588 frontation is to secure for the opponent the opportunity of cross-examination.’ ” Id., at 315-316. I see little basis for the Court’s refusal to recognize the accused inmate’s rights in these circumstances. The Court apparently accepts petitioners’ arguments that there is a danger that such cross-examination will produce hostility between inmate and guard, or inmate and inmate, which will eventually lead to prison disruption; or that cross-examination of a guard by an inmate would threaten the guard’s traditional role of absolute authority; or that cross-examination would somehow weaken the disciplinary process as a vehicle for rehabilitation.

I do not believe that these generalized, speculative, and unsupported theories provide anything close to an adequate basis for denying the accused inmate the right to cross-examine his accusers. The State’s arguments immediately lose most of their potential force when it is observed that Nebraska already permits inmates to question the correctional officer who is the charging party with respect to the charges. See ante, at 567 n. 17. Moreover, by far the greater weight of correctional authority is that greater procedural fairness in disciplinary proceedings, including permitting confrontation and cross-examination, would enhance rather than impair the disciplinary process as a rehabilitative tool. President’s Commission on Law Enforcement and the Administration of Justice, Task Force Report: Corrections 13, 82-83 (1967); ABA Survey 20-22; see Landman v. Royster, 333 F. Supp., at 653 .

“Time has proved . . . that blind deference to correctional officials does no real service to them. Judicial concern with procedural regularity has a direct bearing upon the maintenance of institutional order; the orderly care with which decisions are made by the prison authority is intimately related to the level of respect with which prisoners regard that author *589 ity. There is nothing more corrosive to the fabric of a public institution such as a prison than a feeling among those whom it contains that they are being treated unfairly.” Palmigiano v. Baxter, 487 F. 2d 1280, 1283 (CA1 1973).

As The Chief Justice noted in Morrissey v. Brewer, 408 U. S., at 484 , “fair treatment . . . will enhance the chance of rehabilitation by avoiding reactions to arbitrariness.”

Significantly, a substantial majority of the States do permit confrontation and cross-examination in prison disciplinary proceedings, and their experience simply does not bear out the speculative fears of Nebraska authorities. See ABA Survey 21-22. The vast majority of these States have observed “no noticeable effect on prison security or safety. Furthermore, there was general agreement that the quality of the hearings had been 'upgraded' and that some of the inmate feelings of powerlessness and frustration had been relieved.” Id., at 21. The only reported complaints have been, not the theoretical problems suggested by petitioners, but that these procedures are time consuming and have slowed down the disciplinary process to some extent. These are small costs to bear to achieve significant gains in procedural fairness.

Thus, in my view, we should recognize that the accused prisoner has a constitutional right to confront and cross-examine adverse witnesses, subject to a limited exception when necessary to protect the identity of a confidential inmate informant. This does not mean that I would not permit the disciplinary board to rely on written reports concerning the charges against a prisoner. Rather, I would think this constitutional right sufficiently protected if the accused had the power to compel the attendance of an adverse witness so that his story can be tested by cross-examination. See Clutchette v. Procunier, *590 497 F. 2d, at 819 ; Palmigiano v. Baxter, supra, at 1290 . Again, whenever the right to confront an adverse witness is denied an accused, I would require that this denial and the reasons for it be noted in writing in the record of the proceeding. I would also hold that where it is found necessary to restrict the inmate’s right of confrontation, the disciplinary board has the constitutional obligation to call the witness before it in camera and itself probe his credibility, rather than accepting the unchallenged and otherwise unchallengeable word of the informer. See ibid.; cf. Birzon v. King, 469 F. 2d 1241 (CA2 1972). And, again, I would make it clear that the unwarranted denial of the right to confront adverse witnesses, after giving due deference to the judgment of prison officials and their reasonable concerns with inmate safety and institutional order, would be cause for judicial intervention.

The Court next turns to the question of an accused inmate’s right to counsel, and quotes a long passage from our decision last Term in Gagnon v. Scarpelli, 411 U. S. 778 (1973), in support of its conclusion that appointed counsel need not be provided and retained counsel need not be permitted in prison disciplinary proceedings at this time. The Court seemingly forgets that the holding of Scarpelli was that fundamental fairness requires the appointment of counsel in some probation revocation or parole revocation proceedings and overlooks its conclusion that

“the effectiveness of the rights guaranteed by Mor-rissey may in some circumstances depend on the use of skills which the probationer or parolee is unlikely to possess. Despite the informal nature of the proceedings and the absence of technical rules of procedure or evidence, the unskilled or uneducated probationer or parolee may well have difficulty in *591 presenting his version of a disputed set of facts where the presentation requires the examining or cross-examining of witnesses or the offering or dissecting of complex documentary evidence.” Id., at 786-787 .

Plainly, these observations are at least as appropriate in the context of prison disciplinary proceedings. We noted in Johnson v. Avery, 393 U. S. 483, 487 (1969), that “penitentiaries include among their inmates a high percentage of persons who are totally or functionally illiterate, whose educational attainments are slight, and whose intelligence is limited”; the same considerations provide the motivating force for the holding today in Part VIII of the Court’s opinion.

In view of these considerations, I think it is clear that, at least in those serious disciplinary cases meeting the Scarpelli requirements, see 411 U. S., at 790 , any inmate who seeks assistance in the preparation of his defense must be constitutionally entitled to have it. But, although for me the question is fraught with great difficulty, I agree with the Court that it would be inappropriate at this time to hold that this assistance must be provided by an appointed member of the bar. 2 There is considerable force to the argument that counsel on either side would be out of place in these disciplinary proceedings, and the practical problems of providing appointed counsel in these proceedings may well be insurmountable. But *592 the controlling consideration for me is my belief that, in light of the types of questions likely to arise in prison discipline cases, counsel substitutes should be able to provide sufficiently effective assistance to satisfy due process. At least 41 States already provide such counsel substitutes, ABA Survey 22, reflecting the nearly universal recognition that for most inmates, this assistance with the preparation of a defense, particularly as disciplinary hearings become more complex, is absolutely essential. Thus, I would hold that any prisoner is constitutionally entitled to the assistance of a competent fellow inmate or correctional staff member — or, if the institution chooses, such other alternatives as the assistance of law students — to aid in the preparation of his defense.

Finally, the Court addresses the question of the need for an impartial tribunal to hear these prison disciplinary cases. We have recognized that an impartial decision-maker is a fundamental requirement of due process in a variety of relevant situations, see, e. g., Morrissey v. Brewer, 408 U. S., at 485-486 ; Goldberg v. Kelly, 397 U. S., at 271 , and I would hold this requirement fully applicable here. But in my view there is no constitutional impediment to a disciplinary board composed of responsible prison officials like those on the Adjustment Committee here. While it might well be desirable to have persons from outside the prison system sitting on disciplinary panels, so as to eliminate any possibility that subtle institutional pressures may affect the outcome of disciplinary cases and to avoid any appearance of unfairness, in my view due process is satisfied as long as no member of the disciplinary board has been involved in the investigation or prosecution of the particular case, or has had any other form of personal involvement in the case. See Clutchette v. Procunier, 497 F. 2d, at 820 ; United States ex rel. Miller v. Twomey, 479 F. 2d *593 701, 716, 718 (CA7 1973); Landman v. Royster, 333 F. Supp., at 653 . I find it impossible to determine on the present record whether this standard of impartiality has been met, and I would leave this question open for the District Court’s consideration on remand.

Thus, it is my conclusion that the Court of Appeals was substantially correct in its holding that the minimum due process procedural requirements of Morrissey v. Brewer are applicable in the context of prison disciplinary proceedings. To the extent that the Court is willing to tolerate reduced procedural safeguards for accused inmates facing serious punishment which do not meet the standards set out in this opinion, I respectfully dissent.

The Court defines the liberty interest at stake here in terms of the forfeiture of good time as a disciplinary measure. Since it is only loss of good time that is at issue in this case, this definition is of course quite appropriate here. But lest anyone be deceived by the narrowness of this definition, I think it important to note that this is obviously not the only liberty interest involved in prison disciplinary proceedings which is protected by due process. Indeed, the Court later observes that due process requires the same procedural protection when solitary confinement is at issue. Ante, at 571-572, n. 19. The Court apparently holds that inmates’ “liberty” is protected by due process whenever “a major change in the conditions of confinement” is imposed as punishment for misconduct. Ibid. I agree. See Palmigiano v. Baxter, 487 F. 2d 1280, 1284 (CA1 1973).

On the record in this case, no question is presented with respect to the presence of retained counsel at prison disciplinary proceedings, and I think it inappropriate for the Court to reach out and decide this important issue without the benefit of a concrete factual situation in which the issue arises. I would reserve for another day the questions whether the Constitution requires that an inmate able to afford counsel be permitted to bring counsel into the disciplinary hearing, or whether the Constitution allows a State to permit the presence of retained counsel when counsel is not appointed for indigents. Cf. Gagnon v. Scarpelli, 411 U. S. 778 , 783 n. 6 (1973).