Wolff v. McDonnell

Mr. Justice Douglas,

dissenting in part, concurring in the result in part.

The majority concedes that prisoners are persons within the meaning of the Fourteenth Amendment, requiring the application of certain due process safeguards to prison disciplinary proceedings, if those proceedings have the potential of resulting in the prisoner’s loss of good time or placement in solitary confinement, ante, at 571-572, n. 19. But the majority finds that prisoners can be denied the right to cross-examine adverse witnesses against them, and sustains the disciplinary board’s right to rely on secret evidence provided by secret accusers in reaching its decision, on the ground that only the prison administration can decide whether in a particular case the danger of retribution requires shielding a particular witness’ identity. And in further deference to prison officials, the majority, while holding that the prisoner must usually be accorded the right to present witnesses on his own behalf, appears to leave the prisoner no remedy against a prison board which unduly restricts that right in the name of “institutional safety.” Re *594 spondent thus receives the benefit of some of the constitutional rights of due process that the Fourteenth Amendment extends to all “persons.” In my view, however, the threat of any substantial deprivation of liberty within the prison confines, such as solitary confinement, is a loss which can be imposed upon respondent prisoner and his class only after a full hearing with all due process safeguards.

I

I agree that solitary confinement is a deprivation requiring a due process hearing for its imposition. Due process rights are required whenever an individual risks condemnation to a “ ‘grievous loss, ” Morrissey v. Brewer, 408 U. S. 471, 481 ; Goldberg v. Kelly, 397 U. S. 254, 263 ; Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U. S. 123, 168 (Frankfurter, J., concurring). Thus due process is required before the termination of welfare benefits, Goldberg, supra; revocation of parole or probation, Morrissey, supra, and Gagnon v. Scarpelli, 411 U. S. 778 ; revocation of a driver’s license, Bell v. Burson, 402 U. S. 535 ; and attachment of wages, Sniadach v. Family Finance Corp., 395 U. S. 337 . Every prisoner’s liberty is, of course, circumscribed by the very fact of his confinement, but his interest in the limited liberty left to him is then only the more substantial. Conviction of a crime does not render one a nonperson whose rights are subject to the whim of the prison administration, and therefore the imposition of any serious punishment within the prison system requires procedural safeguards. Of course, a hearing need not be held before a prisoner is subjected to some minor deprivation, such as an evening’s loss of television privileges. Placement in solitary confinement, however, is not in that category. Prisoners are sometimes placed in solitary or punitive segregation for months or even years. Bryant v. Harris, 465 F. 2d 365 ; Sostre v. McGinnis, 442 F. 2d 178 ; Adams *595 v. Carlson, 368 F. Supp. 1050 ; Landman v. Royster, 333 F. Supp. 621 , and such confinement inevitably results in depriving the prisoner of other privileges as well as those which are ordinarily available to the general prison population, LaReau v. MacDougall, 473 F. 2d 974 ; Wright v. McMann, 387 F. 2d 519 . Moreover, the notation in a prisoner’s file that he has been placed in such punitive confinement may have a seriously adverse effect on his eligibility for parole, a risk which emphasizes the need for prior due process safeguards, Clutchette v. Procunier, 497 F. 2d 809 .

II

I would start with the presumption that cross-examination of adverse witnesses and confrontation of one’s accusers are essential rights which ought always to be available absent any special overriding considerations. In Morrissey v. Brewer, supra, we held that the right to confront and cross-examine adverse witnesses is a minimum requirement of due process which must be accorded parolees facing revocation of their parole “unless the hearing officer specifically finds good cause for not allowing confrontation.” 408 U. S., at 489 . “Because most disciplinary cases will turn on issues of fact. . . the right to confront and cross-examine witnesses is essential.” Landman v. Royster, supra, at 653 .

“Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where *596 the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. . . . This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases . . . but also in all types of cases where administrative and regulatory actions were under scrutiny.” Greene v. McElroy, 360 U. S. 474, 496-497 .

The decision as to whether an inmate should be allowed to confront his accusers should not be left to the unchecked and unreviewable discretion of the prison disciplinary board. The argument offered for that result is that the danger of violent response by the inmate against his accusers is great, and that only the prison administrators are in a position to weigh the necessity of secrecy in each case. But it is precisely this unchecked power of prison administrators which is the problem that due process safeguards are required to cure. “Not only the principle of judicial review, but the whole scheme of American government, reflects an institutionalized mistrust of any such unchecked and unbalanced power over essential liberties. That mistrust does not depend on an assumption of inveterate venality or incompetence on the part of men in power . . . .” Covington v. Harris, 136 U. S. App. D. C. 35, 39, 419 F. 2d 617, 621 . Likewise the prisoner should have the right to cross-examine adverse witnesses who testify at the hearing. Opposed is the view that the right may somehow undermine the proper administration of the prison, especially if accused inmates are allowed to put questions to their guards. That, however, is a view of prison administra *597 tion which is outmoded and indeed anti-rehabilitative, for it supports the prevailing pattern of hostility between inmate and personnel which generates an “inmates’ code” of noncooperation, thereby preventing the rapport necessary for a successful rehabilitative program. The goal is to reintegrate inmates into a society where men are supposed to be treated fairly by the government, not arbitrarily. The opposed procedure will be counterproductive. A report prepared for the Joint Commission on Correctional Manpower and Training has pointed out that the “basic hurdle [to reintegration] is the concept of a prisoner as a nonperson and the jailer as an absolute monarch. The legal strategy to surmount this hurdle is to adopt rules . . . maximizing the prisoner’s freedom, dignity, and responsibility. More particularly, the law must respond to the substantive and procedural claims that prisoners may have . . . .” F. Cohen, The Legal Challenge to Corrections 65 (1969). We recognized this truth in Morrissey , where we noted that society has an interest in treating the parolee fairly in part because “fair treatment in parole revocations will enhance the chance of rehabilitation by avoiding reactions to arbitrariness.” 408 U. S., at 484 . The same principle applies to inmates as well.

The majority also holds 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. Yet, while conceding that “the right to present evidence is basic to a fair hearing,” ibid., the Court again chooses to leave the matter to the discretion of prison officials, who are not even required to state their reasons for refusing a prisoner his right to call a witness, although the Court finds that such a statement of reasons would be *598 “useful.” Ibid. Thus, although the Court acknowledges the prisoner’s right, it appears to leave him with no means of enforcing it.

As the Court itself agrees in holding that the disciplinary board must provide a statement of reasons for its ultimate determination on the merits, ante, at 564-565, such a written statement is crucial not only to provide a basis for review, but to ensure that the board “will act fairly.” Ante, at 565. Of course even in a criminal trial the right to present one’s own witnesses may be limited by the trial judge’s finding that the evidence offered is irrelevant, incompetent, or needlessly repetitious, and certainly the same restrictions may apply in the prison setting. But when the judge makes such a ruling it is a matter in the record which may be challenged on appeal. Nebraska may not provide any channel for administrative appeal of the board’s ruling, but because “ ‘[t]he fundamental requisite of due process of law is the opportunity to be heard,’ ” Goldberg v. Kelly, 397 U. S. 254, 267 , some possibility must remain open for judicial oversight. Here as with the rights of confrontation and cross-examination, I must dissent from the Court’s holding that the prisoner’s exercise of a fundamental constitutional right should be left within the unreviewable discretion of prison authorities.

Our prisons are just now beginning to work their way out of their punitive heritage. The first American penitentiary was established in Philadelphia in 1790; it contained 24 individual cells for the solitary confinement of hardened offenders. P. Tappan, Crime, Justice and Correction 605-606 (1960). Under this “Pennsylvania System” the prisoner was continuously confined to solitary and all communication was forbidden, with the exception of religious advisors and official visitors. M. Wilson, The Crime of Punishment 219-220 (1931). New *599 York experimented with this approach but found it too severe, and adopted instead a compromise solution known as the “Auburn” or “silent” system, in which inmates were allowed to work in shops with others during the day, although under a strict rule of silence, and then returned to solitary confinement at night. Prisoners were marched around in military lock-step with their eyes cast on the ground, and the violations of any rules resulted in the immediate infliction of corporal punishment by the guards. Tappan, supra, at 609-610. Although the harsh treatment produced an orderly prison, it came under criticism because of its inhumanity, with particular emphasis on the unfettered discretion of the guards to impose punishment on the basis of vague charges that were never subjected to detached or impartial evaluation. Introductory Report to the Code of Reform and Prison Discipline 8, printed in E. Livingston, A System of Penal Law for the United States (1828).

We have made progress since then but the old tradition still lingers. Just recently an entire prison system of one State was held so inhumane as to be a violation of the Eighth Amendment bar on cruel and unusual punishment. Holt v. Sarver, 309 F. Supp. 362 , aff’d, 442 F. 2d 304 . The lesson to be learned is that courts cannot blithely defer to the supposed expertise of prison officials when it comes to the constitutional rights of inmates.

“Prisoners often have their privileges revoked, are denied the right of access to counsel, sit in solitary or maximum security or lose accrued 'good time’ on the basis of a single, unreviewed report of a guard. When the courts defer to administrative discretion, it is this guard to whom they delegate the final word on reasonable prison practices. This is the central evil in prison .. . the unreviewed adminis *600 trative discretion granted to the poorly trained personnel who deal directly with prisoners.” Hirschkop & Millemann, The Unconstitutionality of Prison Life, 55 Ya. L. Rev. 795, 811-812 (1969).

The prisoner’s constitutional right of confrontation should not yield to the so-called expertise of prison officials more than is necessary. The concerns of prison officials in maintaining the security of the prison and of protecting the safety of those offering evidence in prison proceedings are real and important. But the solution cannot be a wholesale abrogation of the fundamental constitutional right to confront one’s accusers. The danger of retribution against the informer is not peculiar to the prison system; it exists in every adversary proceeding, and the criminal defendant out on bail during his trial might present a greater threat to the witness hostile to his interests than the prison inmate who is subject to constant surveillance. See Preiser v. Rodriguez, 411 U. S. 475, 492 . If there is an “inmates’ code” of the prison, resulting from hostility to the authorities, which proscribes inmate cooperation with prison officials in disciplinary proceedings, it is probably based upon the perceived arbitrariness of those proceedings. That ethic, which is clearly anti-rehabilitative, must be ferreted out, but I do not see how the petitioners can rely on their current failure to correct this evil for the perpetration of an additional one — the denial of the right of confrontation. In some circumstances it may be that an informer’s identity should be shielded. Yet in criminal trials the rule has been that if the informer’s information is crucial to the defense, then the government must choose between revealing his identity and allowing confrontation, or dismissing the charges. Roviaro v. United States, 353 U. S. 53 . And it is the court, not the prosecutor, who determines the defendant’s need for the information. We *601 should no more place the inmate’s constitutional rights in the hands of the prison administration’s discretion than we should place the defendant’s right in the hands of the prosecutor.

Insofar as the Court affirms the judgment of the Court of Appeals I concur in the result. But the command of the Due Process Clause of the Fourteenth Amendment compels me to dissent from that part of the judgment allowing prisoners to continue to be deprived of the right to confront and cross-examine their accusers, and leaving the right to present witnesses in their own behalf in the unreviewable discretion of prison officials.

Ill

Finally, the Court again, as earlier this term in Procunier v. Martinez, 416 U. S. 396 , sidesteps the issue of the First Amendment rights of prisoners to send and receive mail. I adhere to the views expressed by my Brother Marshall and myself earlier this Term in our separate opinions in Procunier. I agree, however, with the Court that the prisoners’ First Amendment rights are not violated by inspection of their mail for contraband, so long as the mail is not read and the inspection is done in the prisoner’s presence so that he can be assured that the privacy of his communications is not breached. Such a procedure should adequately serve the prison administration’s interest in ensuring that weapons, drugs, and other prohibited materials are not unlawfully introduced into the prison, while preserving the prisoner’s First Amendment right to communicate with others through the mail.