Amicus Curiae Brief — Cleavinger v. Saxner

4 Office Sup,

No. 84.732 Ns

JUL 19 1585

Supreme Court of the United 985 —

October Term. 1984

THEODORE CLEAVINGER, ET AL.

Petitioners,

vs.

DAVID SAXNER and ALFRED CAIN, IR.

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Brief Amici Curiae of Prisoners’ Legal Services of New York, Inc.; National

Conference of Black Lawyers; National Lawyers Guild, Amicus Committee:

National Legal Aid and Defenders Association; Alabama Prison Project;

Southern Poverty Law Center (Alabama); Jerome N. Frank Legal Services

Organization (Connecticut); Florida Justice Institute, Inc.; Legal Services for

Prisoners, Inc. (Kansas): Prisoners Assistance Project of the Legal Aid Bureau.

Inc. (Maryland); Gay Community News Prisoner Project (Massachusetts);

Massachusetts Correctional Legal Services: Mississippi Chapter of the National

Conference of Black Lawyers: New York State Defenders Association; Keystone

Legal Services, Inc. (Pennsylvania): Defender General's Office of the State of

Vermont; Institutional Legal Services Project of Evergreen Legal Services

(Washington): and Wisconsin Correctional Services, in support of Respondents.

STEPHEN M. LATIMER*

DAVID C. LEVEN

PRISONERS’ LEGAL SERVICES

OF NEW YORK

105 Chambers Street

New York, New York 10007

Telephone: (212) 513-7373

ELLEN M. YACKNIN

ROBERT D. LONSKI

PRISONERS’ LEGAL SERVICES

OF NEW YORK

487 Niagara Street

Buffalo, New York 14201

Telephone: (716) 856-2650

° Member, Bar of the Supreme Court of the United States.

Bete Times Publishing Co

Batevia. NY (716) 344-2000

TABLE OF CONTENTS.

II. The Conferral Of Quasi-Judicial Absolute

Immunity Upon Prison Disciplinary Hearing

Officers Is Not Justified Where Neither The Role

Of The Hearing Officer Nor the Nature Of The

Hearing Is Functionally Comparable To Its

Respective Judicial Counterpart ...............

III. The Overwhelming Majority Of State Prison

Disciplinary Systems, Including Those Of Amici

States, Incorporate Few, If Any, Of The

Judicially Equivalent Characteristics Regarded As

Critical To A Bestowal Of Quasi-Judicial Absolute

Immunity Upon Administrative Hearing Officers.

IV. Where A Prison Disciplinary System Does Not

Incorporate Procedures Adequate To Protect Its

Judgmental Independence, It Does Not Operate

As A Judicially Comparable Administrative

Tribunal Which Would Warrant The Conferral Of

Absolute Immunity Upon Hearing Officers

A. Nationwide Research Uniformly Reveals

That Inmate Disciplinary Hearings Over Which

Prison Staff Preside Function Chiefly To

Impose Punishment On Inmates And To

Brandish Prison Officials’ Authority, But

Rarely To Determine An Inmate's Guilt Or

Fee

12

Page

B. A Close Examination Of New York's

Inmate Disciplinary System Confirms That

Without Judicially Comparable Procedural

Safeguards, An Inmate Disciplinary System

Functions In A Manner Radically Different

From The Independent Hearing Which The

Butz Court Regarded As Fundamental To A

Consideration Of A Heuring Officer's

Entitlement To Absolute Immunity ..........

V. Granting Absolute Immunity To Disciplinary

Hearing Officers Will Leave Inmates Whose

Constitutional Rights Have Been Violated With

No Effective Means Of Deterring

Unconstitutional Conduct Or Of Compensating

Them For Harm They Incurred When The

Hearing Officers Infringed Their Rights.

VI. The Refusal To Endow Prison Hearing Officers

With Absolute Immunity Will Neither Increase

The Burden On The Courts Nor Force Hearing

Officers To Defend Themselves Against

VII. The Publics Compelling Interests In Deterring

And Compensating For Unconstitutional Conduct

Far Outweigks Hearing Officers’ Interest In

Evading Financial Liability For Their

Appendix A—Statements Of Interest Of Individual

Organizations Amici Curiae ...................

15

21

24

Page

TABLE OF CASES.

Avant v. Clifford, 67 N. J. 496 (1975). ............. 8

Bounds v. Smith, 430 U.S. 817 (1977 ))) 16

Butz v. Economou, 438 U.S. 478 (1978) ........ 5,6,8,11,

13,16,26,29

Gerena-Valentin v. Koch, 739 F.2d 755 (2d Cir.

,,, ⅛ ˙B·· 5 2 26

Harlow v. Fitzgerald, 457 U.S. 800 (1982). 28

Hensley v. Eckerhart, 461 U.S. 424 (1983)......... 26

Hilliard v. Scully, 537 F.Supp. 1084 (S.D.N.Y.

, EE ce eee aber hbeeccccccccecocces 8

King v. Higgins, 702 F.2d 18 (Ist Cir.), cert. denied,

r 5 25

King v. Wells, 760 F.2d 89 (1981 25

Matter of Garcia v. LeFevre, 102 A. D. 2d 1004 (3rd

Dep't 1984), rev'd on other grounds, 64 N. V. 2d

EEL EEE . 17

Matter of Jones v. Smith, 64 N.Y.2d 1003 (1985) ... 16

Matter of Jones v. Smith, 101 A.D.2d 705 (4th

Dep't 1984), aff'd on other grounds, 64 N.Y.2d

, e scene ee sedcececcccoeccess 17

Matter of Santana v. Coughlin, 105 A.D.2d 789

cee een eccescecsescecs 17

McCann v. Coughlin, 698 F.2d 112 (2d Cir. 1983). . 25.26

Monroe v. Pape, 365 U.S. 167 (1961. 28

Morrison v. LeFevre, 592 F.Supp. 1052 (S.D.N.Y.

, 5 b T TET EE 20

Nixon v. Fitzgerald, 457 U.S. 731 (1982).......... 28,29

People ex rel. Corcoran v. Smith, 105 A.D.2d

1142 (4th Dep't 1984. 24

Pierson v. Ray, 386 U.S. 547 (1967)............... 5

Pino v. Dalsheim, 605 F.Supp. 1305 (S. D. N. V.

iv.

Page

Ponte v. Neal. U. 8. . 53 U.S.L.W.

II 7

Procunier v. Navarette, 434 U.S. 555 (1970 5.25

Pulliam v. Allen .S. 104 S.Ct.

De . cecaeeus 5

Saxner v. Benson, 727 F.2d 669 (7th Cir. 198 13

Scheuer v. Rhodes, 416 U.S. 232 (1974. 5,28,29

Segarra v. McDade, 706 F.2d 1301 (4th Cir. 1983)... 25

Walpole v. Hill, U.S. 53 U.S.L.W.

,, o» ee ee 26

Ward v. Johnson, 690 F.2d 1098 (4th Cir. 1982) .... 25

Wolff v. McDonnell, 418 U.S. 539 (197. 2,3,7,8,

10,28,29

Wood v. Strickland, 420 U.S. 308 (1975). 29

Page

OTHER AUTHORITIES.

Administrative Procedure Act, 5 U.S.C. 5554

1 6

Federal Rules of Civil Procedure:

Li. (ie logic ]ꝛĩi3ʒ̃⁊ð z kewe ue oie ou 26

eee 26

Z 24

7 N. VC. R. R.:

SS r eau besns 16

, ashen ap . dbs cebints Ss bee 17

Rule 42 of the Rules Of This Court 1

. od oho Uwe 666 sku lc 6ewccd el ic 27

vi.

Page

TREATIES.

Babcock, Due Process in Disciplinary

Proceedings, 22 B. C. L. Rev. 1009 (1981) . . 8.9. 10.13

Eisenberg, Section 1983: Doctrinal Foundations

and an Empirical Study,” 67 Cornell L.R. 482

SE 0. 60.64664666005600666 6 0% 60 27

Flanagan, “Discretion in the Prison Justice

System: A Study of Sentencing in Institutional

Disciplinary Proceedings. 19 J. Research

Crime & Deling. 216 (1982) .............. 12,13,14,15

Gifis, ‘“‘Decisior.-making in a Prison Community. in

The Invisibie Justice System: Discretion and the

Law 317 (B. Atkins and M. Pogrebin ed. 1978)... 12

6 Corrections Compendium No. 5 (1981)........... 8

Harvard Center for Criminal Justice, ‘Judicial

Intervention in Prison Discipline. 63 J.

Crim. L., Criminology and Police Sci. 200

eee eee eee e e besesensacets 12. 13.14.15

Jacob and Sharma, “Disciplinary and Punitive

Transfer Decisions and Due Process Values in

the American Correctional System,” 12 Stetson

i S eh ducdceeebensiccesdanaes 9,12,13,15

G. Kassebaum, D. Ward, and D. Wilmer, Prison

Treatment and Parole Survival: An Empirical

J ere 14

B. Marin, Inside Justice (1983) ................. 8,9,12

Noble Holdings as Empty Promises: Minimum Due

Process at Prison Disciplinary Hearings, 7 New

Eng. J. Prison L. 145 (1981))7))))) 9

Poole and Regoli, ‘Race, Institutional Rule

Breaking, and Disciplinary Response: A Study of

Discretionary Decision Making in Prison, 14 Law

& Soc y Rev. 931 (1980)... . cee eeee 13

vii.

Page

President's Commission on Mental Health, Report of

the Task Panel on Legal and Ethical Issues (1980) 10

Ramirez, “Race and the Apprehension of Inmate

Misconduct,” 11 J. Crim. Just. 413 (1983) ....... 13

Transcript of deposition of Abraham Taylor in

Johnson v. Colton (N.Y. Sup. Ct., Cayuga Cy.),

RTE FT, GED cc ccnccsccccvcccsescscscces 18

Transcript of testimony in Matter of Brian F.

Malone, Attorney, and Committee on Professional

Standards (N.Y. App. Div. 3rd Dep't), (January

D een ese ele neee 19

Turner. When Prisoners Sue: A Study of Prisoner

Section 1983 Suits in the Federal Courts. 92

Harvard L. A. 610 (1979)... 1... ccc cee eee ees 27

IN THE

Supreme Court of the United States

October Term, 1984

No. 84-732

THEODORE CLEAVINGER, ET AL.

Petitioners,

vs.

DAVID SAXNER ND ALFRED CAIN, IR..

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

Interest Of Amici Curiae

This brief is filed on behalf of Prisoners’ Legal Services

of New York, Inc.; National Conference of Black

Lawyers; National Lawyers Guild, Amicus Committee;

National Legal Aid and Defenders Association; Alabama

Prison Project; Southern Poverty Law Center (Alabama):

Jerome N. Frank Legal Services Organization

(Connecticut); Florida Justice Institute, Inc.: Legal

Services for Prisoners, Inc. (Kansas); Prisoners

Assistance Project of the Legal Aid Bureau, Inc.

(Maryland); Gay Coramunity News Prisoner Project

(Massachusetts); Massachusetts Correctional Legal

Services; Mississippi Chapter of the National Conference

of Black Lawyers; New York State Defenders’

Association; Keystone Legal Services, Inc.

(Pennsylvania); Defender General's Office of the State of

Vermont; Institutional Legal Services Project of

2

I. Summary Of Argument

Prison inmates no less than scions of society are entitled

to sue for damages for harm suffered from deprivations

of their federal constitutional rights by government

officials. Since Wolff v. McDonnell, this Court has

insisted that inmates must be provided constitutionally

mandated due process safeguards before prison officials

can punich them by stripping them of their liberty.

In both federal and state prison disciplinary systems,

disciplinary committee members are responsible for

ensuring that inmates are provided their constitutional

rights. Similar to the vast majority of state prison

disciplinary hearing officers, Bureau of Prisons

Institution Disciplinary Committee [IDC] members are

prison employees who possess few of the characteristics

considered essential to permit their exercise of

— my judgment. Like the majority of state

procedures, those followed in the Bureau of Prisons’

disciplinary system lack many of the due process

safeguards considered crucial to ensure an objective and

fair determination of the facts. Under these

circumstances, neither IDC members nor state prison

disciplinary committee members are entitled to shroud

themselves with the exceptional shield of quasi-judicial

absolute immunity when they violate the constitutional

rights of inmates.

The absence of judicially equivalent procedural

safeguards in federal and state prison disciplinary

systems has more than theoretical implications.

Researchers have uniformly found that where the

hearing officer is a member of the prison corrections

staff, and where only minimal procedures circumscribe

the accused inmate's rights and the hearing officer's

discretion, the cardinal function of the prison disciplinary

hearing is to impose punishment rather than to uncover

the truth.

As prisoners’ advocates familiar with the prison

disciplinary systems, amici have experienced what

researchers have concluded. The New York State prison

system, with the second largest prison population in the

nation, offers a revealing and typical example. The

regulations governing New York's inmate disciplinary

procedures provide inmates with little more than the

fundamental rights dictated by Wolff v. McDonnell.

Moreover, a single corrections official, who has many

other duties in the prison unrelated to the disciplinary

system, conducts the hearing. Consequently, as

experience has demonstrated, the fact-finding component

of the hearing is all but eliminated.

The Commissioner of New York's prison system

recently conceded as much. He testified that when

corrections officers physically assault inmates, they

invariably charge inmates with physically assaulting

them. Nevertheless, disciplinary hearing officers in New

the basis of the misbehavior reports written by the

allegedly assaulted officers.

Given the potential for abuse in an insulated, prison-

controlled, loosely structured inmate disciplinary system

such as New Vork s. an inmate's ability to invoke the

limited constitutional procedures available to defend

himself or herself becomes critically important.

Concomitantly, the possibility of a damage award against

a hearing officer becomes the chief, if not only, mechanism

to deter the officer s violations of an inmate's clearly

established constitutional rights. An inmate's need for

such deterrence is particularly acute because he or she

will have incurred much of the harm resulting

from the infringement of constitutional rights before a

court can reverse the hearing officer's disposition.

Address by Thomas A. Coughlin, III. Commissioner, New York

State Department of Correctional! Services, at Women and Prison

Conference (May 17, 1985).

4

Conferring absolute immunity upon a prison disciplinary

hearing officer in such circumstances will effectively

render meaningless an inmate's constitutional due

process protections.

The federal government and the states of California,

Alabama, Hawaii, and Wyoming nevertheless complain

that a tidal wave of frivolous inmate litigation will

inundate the federal judiciary if this Court declines to

exempt prison disciplinary hearing officers from financial

liability for their plainly unconstitutional conduct.

Because most existing precedent does not recognize

hearing officer absolute immunity, this concern is

baseless

In addition, despite their protests to the contrary,

there is no indication that without absolute immunity,

hearing officers will be the targets of uncountable

vexatious lawsuits. What the federal and state

governments fail to mention is that a damage action

cannot succeed, and in fact can be dismissed summarily

on the administrative record, if the hearing officer

chooses to provide rather than violate an inmate's few

but important constitutional rights. Regardless,

adequate procedural devices exist to protect hearing

officers from the burden of defending against harassing

litigation.

This Court should not compromise an inmate's ability

to recover damages for injuries resulting from the

constitutional rights are less worthy of judicial

protection than those of other individuals in society. In

balancing the policy considerations, the dual goals of

deterring and compensating for unconstitutional conduct

clearly outweigh a prison disciplinary hearing officer's

desire to act unconstitutional with impunity.

5

II. The Conferral Of Quasi-Judicial Absolute

Immunity Upon Prison Disciplinary Hearing Officers Is

Not Justified Where Neither The Role Of The Hearing

Officer Nor The Nature Of The Disciplinary Hearing Is

Functionally Comparable To Its Respective Judicial

Counterpart.

Beginning with Scheuer v. Rhodes, 416 U.S. 232 (1974),

this Court has stressed that executive branch officials

are generally entitled to only qualified immunity from

liability for damages stemming from unconstitutional

acts committed in the performance of their duties.

Emphasizing its significance, the Court observed that a

damage award can serve to deter unconstitutional

conduct as well as compensate for injuries. Id. at 238.

That prison officials are entitled to a qualified rather

than an absolute immunity defense with respect to

violations of inmates’ constitutional rights was

established in Procunier v. Navarette, 434 U.S. 555

(1978). The common law tradition of absolute immunity

from damages for judges, however, remains intact even

where unconstitutional conduct is involved. See Pierson

v. Ray, 386 U.S. 547 (1967). Cf. Pulliam v. Allen, _

US. 104 S.Ct. 1970 (1984) (judicial absolute

immunity poses no bar to prospective injunctive relief).

Against this background, this Court was confronted in

Butz v. Economou, 438 U.S. 478 (1978) with the question

defense, the Court

“subject to those exceptional situations where it is

demonstrated that

then proceeded to create an exceptional and narrow

‘quasi-judicial absolute immunity defense for executive

branch adjudicative hearing officers who are

“functionally comparable to judges. Jd. at 513.

Two factors were critical to this Court s determination

that the chief hearing officer of the Department of

Agriculture was functionally comparable to a judge, and

must be analyzed in this case as well. First, the Court

found that applicable law (specifically, the

Administrative Procedure Act, 5 U.S.C. $554 et seq.)

Administrative Procedure Act (APA) are comparable to

those of a trial judge. Id. As discussed by the Court, the

judicially equivalent procedural devices in the APA were

Mun

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1 6

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iti

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7

with inmate disciplinary hearing systems throughout the

co-ntry, it is evident that few, if any, disciplinary

systems incor rate the procedural devices this Court

deemed esser al for a bestowal of absolute immunity on

an administravive hearing officer.

As an initia! matter, the differences between a prison

disciplinary system's constitutionally mandated

procedural safeguards as defined in Wolff u. McDonnell,

418 U.S. 539 (1974) and the procedures provided in the

APA render the prison disciplinary process substantially

less adversarial than hearings conducted under the APA.

For instance, hearing officers may refuse to call an

inmate’s witnesses, and may limit an inmate’s access to

other inmates to collect statements without explaining why.

Ponte v. Real, US. 53 U.S.L.W. 4549

(May 21, 1985); Wolff, 418 U.S. at 566. Inmates are not

entitled to confront or cross-examine adverse witnesses.

Wolff, 418 U.S. at 567-68. Nor are prisoners

constitutionally entitled to counsel or a substitute

precisely because:

the insertion of counsel into the —

process would inevitably give the

more adversarial cast and tend to reduce their

utility as a means to further correctional goals. /d.

at 570.

Additionally, and perhaps most significantly, it is

constitutionally permissible for a hearing officer to have

other custodial, security-related, and programmatic

responsibilities for the daily operation of the prison,

thereby diminishing the officer’s capacity to act

independently. Jd. at 570-71. The hearing examiners in

the Department of Agriculture, on the other hand,

perform their adjudicatory duties as their sole functions.

It is apparent that the Wolff Court envisioned prison

disciplinary hearings as informal, nonadversarial

proceedings in which hearing officers are neither

constrained by the procedural safeguards which govern

judges and other administrative adjudicators, nor

authorized to invoke judicially comparable powers. Thus,

in a constitutional sense, the prison disciplinary hearing

8

officer is simply not functionally comparable to a judge.

Butz, 438 U.S. at 513.

Nor is a prison disciplinary hearing officer functionally

comparable to a judge in a practical sense. Although a

handful of states provide inmates with greater

procedural protections than are required by Wolff, see,

e. g., Avant v. Clifford, 67 N.J. 496 (1975), it is amici’s

experience that the vast majority of state prison

disciplinary systems encompass only the basic

requirements. See, e.g., Hilliard v. Scully, 537 F.Supp.

1084 (S.D.N.Y. 1982).

III. The Overwhelming Majority Of State Prison

Disciplinary Systems, Including Those Of Amici States,

Incorporate Few, If Any, Of The Judicially Equivalent

Characteristics Regarded As Critical To A Bestowal Of

Quasi-Judicial Absolute Immunity Upon Administrative

Hearing Officers.

The written procedures governing prison disciplinary

proceedings promulgated by individual states sharply

contrast with the hearing procedures examined by this

Court in Butz.‘ As a general rule, inmate disciplinary

‘The information in this section was gleaned from several sources.

Available to amici were current staie prison disciplinary system

regulations from the following states: Alabama, California, Colorado,

Hawaii, Indiana, Kansas, Maine, Maryland, Massachusetts,

Michigan, Minnesota, Montana, Nebraska, New Hampshire, New

Jersey, New York, North Carolina, Ohio, Oregon, Pennsylvania,

Rhode Island, South Carolina, Vermont, Washington, Wisconsin, and

Wyoming. For information about other state systems, amici relied on

a survey of the disciplinary systems in forty-one states, Guam, and

the Federal Bureau of Prisons published in 6 Corrections

Compendium No. 5, 3-7 (1981), and a comprehensive analysis of a 1980

survey of disciplinary systems in forty states, the District of

Columbia, and the Federal Bureau of Prisons, published in Babcock,

Due Process in Disciplinary Proceedings. 22 B. C. L. Rev. 1009 (1981)

& n.38, 1051-83. Amici also referred to B. Marin, Inside Justice

(1983), an exhaustive study of the prison disciplinary systems in the

United States and Great Britain. Unless otherwise indicated, the

information summarized in this section derives from the most current

sources available to amici, as described in this footnote.

9

hearings around the country are nonadversarial in nature

and are conducted by untrained and inexperienced

corrections staff who double as hearing officers.’

Charges filed against an inmate are heard by a.

disciplinary committee comprised of one or more

members. In all but three states, hearing board members

are corrections and administrative staff within the prison

where the inmate resides, and are under the direct

supervision of the facility's warden. The states of

California, Hawaii, Arizona, and Wyoming, amici on the

governments behalf, are among the majority of

jurisdictions who use prison employees as hearing

officers. Only one state, Michigan, uses hearing officers

who as employees of an independent hearing division

within the state corrections department, function

exclusively as hearing officers.

Although twenty-four state systems bar the charging

officer from serving on the hearing panel, the remaining

systems apparently have no such _ prohibition.

Corrections staff with direct knowledge of or

involvement in the alleged incident are explicitly

excluded from disciplinary committees in merely five

states.

All states have regulations that allow the charging

officer or another prison official to confine the inmate

immediately after a violation is reported if the violation

is deemed serious. When an inmate is confined in this

way, most states assign a prison employee to obtain

evidence for the inmate before the hearing. The

employee, however, does not keep the gathered

information confidential. Rather, the employee reports

directly to the disciplinary hearing committee when the

See Marin, supra note 4, at 130-215; Babcock, supra note 4, at

1051-82; Jacob and Sharma, ‘Disciplinary and Punitive Transfer

Decisions and Due Process Values in the American Correctional

System. 12 Stetson L. Rev. 1, 7-29, 71-134 (1982); Note, Noble

Holdings as Empty Promises: Minimum Due Process at Prison

Disciplinary Hearings,” 7 New Eng. J. Prison L. 145, 152-177 (1981).

10

investigation is complete, regardless of whether the

information is favorable or harmful to the inmate.

As mandated by Wolff v. McDonnell, most states’

regulations allow a prison employee to provide limited

assistance to an inmate who is illiterate or unable to

understand the charges. In amici’s experience, however,

an assistant is rarely assigned despite the high

percentage of the prison population which is mentally ill

or retarded and unable to prepare an adequate defense to

the charges.“

Twenty-seven states permit an inmate to have a

lawyer or civilian advocate present at the hearing to help

present evidence. Because few inmates have the financial

resources to hire attorneys to attend prison hearings,

however, and because the time between the charges and

the hearing is usually short, this privilege is rarely

utilized.’

Raw statistics indicate that twenty-eight jurisdictions

allow the accused or his or her legal representative to

question the witnesses, or at least the charging officer.

In almost all twenty-eight, however, this procedure is

limited by the hearing officer s ability to exclude the

accused inmate from the hearing, to restrict the accused

iumate to the submission of written questions only to the

hearing panel, and to allow the witness to refuse to

answer.

Virtually all jurisdictions permit accused inmates to

call their own witnesses, but none gives inmates the

*For example, in a telephone conversation on January 8, 1985,

Richard Lester, Health Care Coordinator in Attica Correctional

Facility in New York, stated that 40% of inmates at Attica ha\e

active psychiatric files. Similarly, a survey of prisoners in five

California counties revealed that 37% were mentally ill, with half of

those inmates suffering from personality disorders. President's

Commission on Mental Health, Report of the Task Panel on Legal

and Ethical Issues 1455 (1980).

See Babcock, supra note 4, at 1938-40.

11

absolute right to call anyone they wish. At least twenty-

five states expressly confine an inmate’s witnesses to

those who will provide only relevant and

noncumulative testimony, as decided by the hearing

officer. Regulations requiring written explanations of

reasons for not calling an accused inmate's witnesses

exist in only fifteen jurisdictions. No state system allows

inmates to subopena reluctant witnesses.

The evidence which disciplinary committee members

are entitled to rely on in determining an inmate's guilt is

extremely broad, thereby restricting an inmate’s ability

to defend himself or herself. No disciplinary system

requires the application of formal evidentiary rules; all

permit the introduction of hearsay. Only four states

require testimony under oath. At least seven

jurisdictions specifically provide that the written

misbehavior report is enough evidence to find an inmate

guilty. Other jurisdictions yield the same result by

failing to specify in their regulations the requisite type or

quantum of inculpatory evidence.

To summarize, regulations which implement prison

disciplinary systems provide, for the most part, little

more than those procedures which are constitutionally

mandated, and a great many fewer than the Butz Court

considered crucial in evaluating a claim of quasi-judicial

absolute immunity. In fact, like most states, the four

state amici of the government provide inmates with very

few procedural protections. Of the several safeguards

analyzed in Butz, including representation by a lawyer,

12

IV. Where A Prison Disciplinary System Does Not

Incorporate Procedures Adequate To Protect Its

Judgmental Independence, It Does Not Operate As A

Judicially Comparable Administrative Tribunal Which

Would ES Se SES SS SaaS —

Upon Hearing Officers.

A. Nationwide Research Uniformly Reveals That Inmate

Disciplinary Hearings Over Which Prison Staff Preside

Function Chiefly To Impose Punishment On Inmates And To

Brandish Prison Officials’ Authority, But Rarely To Determine

An Inmate's Guilt Or Innocence.

The absence of all but rudimentary procedural

protections in the majority of inmate disciplinary

systems has far more than abstract statistical or

jurisprudential significance. Empirical research

demonstrates that most disciplinary systems function

not as guilt determining proceedings but as disposition-

forums. Stated differently, an inmate’s guilt

is virtually always presumed; the practical function of a

prison employee who douvles on occasion as a hearing

officer is merely to impart punishment.

the ,

familiarity with the inmate, the officer s impressions of

the inmate s attitude at the hearing, the inmate's overall

disciplinary recor 4. and, perhaps surprisingly, the

inmate’s age and marital status at the time of his or her

admission. Perhaps not surprisingly, it is also clear that

Discipline. 63 J. Crim. L. Criminology and Police Sci. 200, 223

(1972); Jacob and Sharma, supra note 5, at 72 & n.339.

Marin. supra note 4, at 208; Flanagan, supra note 8, at 231-34; Gifis.

“Decision-making in a Prison Community. in The Invisible Justice

Jacob and Sharma, supra note 5, at 30.

13

race prejudice against minority inmates by corrections

staff has a significant role in the apportionment of

—

Researchers attribute these phenomena to the absence

of the procedural safeguards the Butz Court found

essential to independent, influence-free decision-making.

and the concomitant wide latitude allowed hearing

officers at every stage in the proceedings.'' Dominating

the causal factors is the use of disciplinary committee

members who work primarily as prison corrections staff

and only incidentally as hearing officers."

deduced: the use of a hearing officer who is also a prison

staff member is inimical to a fair and impartial

determination of an inmate's alleged misconduct. See

Saxner v. Benson, 727 F.2d 669, 675 (7th Cir. 1984).

Researchers point out that the hearing officer s

employee status affects his or her assessment of the

charges against the inmate in a number of adverse ways.

and fellow workers of the corrections officials who file

" Babcock, supra note 4, at 1059; Poole and Regoli, “Race,

Institutional Rule Breaking, and Disciplinary Response: A Study of

Discretionary Decision Making in Prison. 14 Law & Soc y Rev. 931-

46 (1980); ‘tamirez, “Race and the Apprehension of Inmate

Misconduct,” 11 J. Crim. Just. 413, 423-24 (1983).

'' Babcock, supra note 4, at 1095-96; Jacob and Sharma, supra note 5.

at 71-72, 76, 92-94; Note, supra note 5, at 191-92; see also Poole and

Regoli, supra note 10, at 942-43; Ramirez, supra note 10. at 425. See

generally Flanagan, supra note 8.

"* Babcock, supra note 5, at 1095-96; Harvard Center for Criminal

Justice, supra note 8, at 210-11; Jacob and Sharma, supra note 5, at

14, 19-99; Note, supra note 5, at 160-64.

Justice, supra note 8, at 200; Jacob and Sharma, supra note 5, at 14.

15

process, but also in the types of conduct subject to

Jacob and Sharma, supra note 5. at 92-93, 95-96.

16

quasi-judicial decision-making. Butz v. Economou, 438

U.S. at 512.”

Like most other states. New York State's prison

disciplinary system i:...., rates only the basic

constitutionally mandated procedures. When an inmate

is given notice of the charges, he or she may be placed in

solitary confinement for up to seven days prior to a

hearing. If the inmate is confined to a cell or is illiterate,

a prison employee will be designated to help the inmate

prepare a defense, generally by interviewing the

witnesses requested by the inmate. Although these

interviews are ostensibly for the inmate's benefit, the

written results of the interviews are almost always

provided to the hearing officer.

The single hearing officer must be a high-ranking or

designated employee of the Department of

Correctional Services. Except in rare situations, the

hearing is conducted by a corrections staff member of

the prison where the inmate is confined. The sole

limitation placed on the hearing officer is that he or she

cannot have witnessed, investigated, or been involved in

the alleged misbehavior.

The regulations allow the hearing officer to rely

exclusively on the written charges to find an inmate

guilty of misbehavior; testimony by an adverse witness

„New York's inmate disciplinary system has been the focus of

observation and litigation by Prisoners Legal Services of New York

since 1975. See Bounds v. Smith, 430 U.S. 817, 831 n.20 (1977).

According to Donald Selsky, Coordinator of Inmate Disciplinary

Programs for the New York State Department of Correctional

Services, approximately 1000 superintendent's hearings per month

are conducted in New York State prisons. Affidavit of Donald Selsky.

submitted in Matter of Jones v. Smith, 64 N.Y.2d 1003 (1985), May

21, 1984.

The procedures governing New York's inmate disciplinary system

are found at 7 N.Y.C.R.R. §§250-70 (1983). The description of New

York's disciplinary process that follows is based on the applicable

regulations as well as Prisoners Legal Services’ advocates’ knowledge

about the implementation of the regulations.

The hearing officer may interview witnesses

requested by the accused inmate, but only if he or she

deems their testimony material or not redundant, and

if calling the witness does not jeopardize institutional

safety or correctional goals. 7 N.Y.C.R.R. 6254.5. If an

In no case may an accused inmate directly question his

or her own witnesses. In no case may an accused inmate

cross-examine any adverse witnesses who testify. In no

case may a lawyer, paralegal, employee assistant, or

inmate assistant be present at the hearing to help the

accused inmate present his or her defense.

as proof of an inmate's guilt is nonexistent. The accused

In New York, as in and other prison

disciplinary systems, the impact of a battery of hearing

" This of New Vork s disciplinary regulations is currently

being in the ork State courts. Compare Matter of

Jones u Smith, 101 A.D.2d 705 (4th Dep't 1984), aff'd on other

grounds, 64 N.Y.2d 1003 (1985) and Matter of Santana v. Coughlin,

105 A.D.2d 789 (2d Dep't 1984) with Matter of Garcia v. LeFevre, 102

—— 1004 (3rd Dep't 1984), rev'd on other grounds, 64 N. V. 2d 1001

1 .

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21

was subjected to just such a violation of his

constitutional rights [by being framedl. Jd. at 1056.

Refuting one’s guilt at a New York disciplinary

hearing is virtually impossible where written charges are

almost always considered more credible than an accused

inmate's verbal denial and the corroborating testimony of

his or her witnesses. Indeed, Morrison was able to

establish his innocence only in a strictly monitored

neutral forum where he was afforded all the procedural

protections lacking at his disciplinary hearing, such as

the assistance of a legal advocate, the opportunity to

cross-examine adverse witnesses, and the ability to use

available discovery tools. That the inmate disciplinary

system so readily enabled Morrison to be punished for

misbehavior despite his innocence is a testament to the

inherent problems of proving one’s innocence in a system

devoid of strict procedural safeguards.

V. Granting Absolute Immunity To

Hearing Officers Will Leave Inmates Whose

When an inmate is disciplined within a prison system,

the possible sanctions i on him or can be

characterized as falling within one of two broad areas.

longer period of time in

good

|

5

22

In those cases in which the penalty imposed is loss of

good time, and the disciplinary procedures followed

violated the inmate's constitutional rights, a meaningful

remedy exists to make the inmate whole. The good time

which was taken from the inmate's record is simply

restored, and the record of its loss in the first place is

expunged. On the other hand, when an inmate is wrongly

punished by locking him or her in solitary confinement,

there exists no meaningful remedy save that of damages.

Such a penalty involves a serious loss of liberty.

Although a prisoners liberty is severely restricted

simply by virtue of his or her incarceration, a sentence to

solitary confinement entails a further curtailment of

liberty vastly greater than that afforded to inmates

within the general population of the prison.

Typically, such inmates are confined to solitary

confinement cells twenty-three to twenty-four hours per

day. Their ability to shower is reduced from daily to

perhaps once weekly. The inmates are typically denied

telephone privileges, the right to receive packages, the

right to buy goods at the commissary, and the right to

earn “points” which may be used to enjoy privileges

such as family visits. There are often restrictions on

food, both in selection and in quantity. Opportunities for

indoor or outdoor recreation are severely limited, often to

one hour daily or even none at all. The opportunity to

participate in group religious services is eliminated.

Access to legal materials is often more restricted than in

the general population. The inmates are unable to

participate in work or training programs, and thus are

prevented from earning what little wages would

otherwise be available to them. Visits may be strictly

limited to legal visits; personal contact with family

members and friends may be prohibited. Inmates are

denied contact with other prisoners.

23

In the restrictive confines of a prison, an inmate’

freedom to leave hie or her cell, participate in prison

programs, and take advantage of prison opportunities is

an exceedingly precious commodity; its deprivation by

the government is a deprivation of monumental

magnitude. Even a relatively short confinement of

several days or weeks would constitute a grievous loss

of liberty which cannot be remedied simply by declaring

that it was ordered illegally or by expunging references

to the proceeding in the inmate's records. Once the time

is spent in solitary, it is lost forever to the inmate.

A cursary examination of records of disciplin

proceedings, however, reveals that many —

— — * 1 solitary confinement of months or

years.“ In such cases, the deprivation of liberty is

exacerbated and the inadequacy of a remedy —

damages is magnified. These sentences are all the more

serious in light of the considerable length of time which

appeals take, both administratively and in the courts.

For example, in New York State a disciplinary hearin

disposition which imposes over thirty days | —

confinement must be appealed to the Commissioner of

the Department of Correctional Services. Regulations

require that a decision be rendered by the Commissioner

within sixty days of receipt of the appeal. Experience

shows, however, that decisions are rarely, if ever,

forthcoming in fewer than sixty days, and are frequently

— months or more after the appeal was

ved.

“in amicus Prisoners Legal Services experience, disciplinary

dispositions of six months to a year and a half in solitary

confinement are common and are often extended by similar sentences

when inmates are punished for misconduct which allegedly occurs

while the inmates are still in solitary confinement.

24

Following an unfavorable administrative appeal

decision, the inmate may apply to state court to review

the decision. This process can be expected to encompass

at least another six to eight weeks, but is more likely to

exceed two months. If an appeal to a higher court is

made, of course, the process can take at least several

months longer.”

Thus, an inmate who has been sentenced to solitary

confinement in violation of his or her constitutional

rights may end up serving several months of, if not the

entire sentence before his or her rights are

vindicated. This amount of time is surely not

insignificant in light of the degree of deprivations

imposed on the disciplined inmate. To deny such an

aggrieved inmate the right to damages as a matter uf

course would be a miscarriage of justice of the highest

degree.

VI. The Refusal To Endow Prison Hearing Officers

With Absolute Immunity Will Neither Increase The

Burden On The Courts Nor Ferce Hearing Officers To

Defend Themselves Against Multitudes Of Frivolous

Lawsuits.

No doubt because their other arguments have little

merit, the federal and state amici governments conjure

up the effete image of a floodgate of frivolous litigation

inundating the federal judiciary if the decision below is

affirmed. In the government's and amici's view, if this

Court rules that hearing officers are not afforded

absolute immunity, inmates will descend upon the

In this regard it is worthy of note that the government may appeal

an unfavorable decision made at a lower court level. In New York,

when the state files a Notice of Appeal from a decision favorable to

the inmate, a stay of the order is automatically granted to the state

appeal. N.Y.C.P.L.R. 5519. Further, New York State courts

have held that habeas corpus relief, which is not automatically stayed

by the state's appeal, is not available to an inmate who seeks to be

released from solitary confinement into the general prison population.

People ex rel Corcoran v. Smith, 105 A.D.2d 1142 (4th Dep't 1984).

25

courthouses throughout (e country in unprecedented

—— * a in hand, eager to avail

hemselves of the newl ted :

h 8 y crea opportunity to sue

Such a dire prediction is itself frivolous. In the first

place, it presumes that, until now, disciplinary hearing

officers have been shielded by absolute immunity. Or the

contrary, since this Court ruled in Procunier v.

Navarette, supra, that prison officials are generally

entitled to invoke merely qualified immunity, only

Virginia's and North Carolina's prison disciplinary

systems have been found by a federal circuit court to be

functionally comparable” to a judicial hearing such that

absolute immunity for their hearing officers was

warranted. See Segarra v. McDade, 706 F.2d 1301 (4th

Cir. 1983); Ward v. Johnson, 690 F.2d 1098 (4th Cir

1982). Other circuit courts have either held that hearing

officers are immune from financial liability, see King v.

Wells, 760 F.2d 89, 95 (1985); King v. Higgins, 702 F.2d

18 (1st Cir.), cert. denied, 464 U.S. 965 (1983), or have

affirmed damage awards against hearing officers without

speaking to the immunity issue. See McCann v.

Coughlin, 698 F.2d 112 (2d Cir. 1983). As a result, the

understandable assumption of pro se inmate litigants and

their legal advocates has been that hearing

Nor is there any basis to believe that prison heari

officers will face a heavy burden in defending themeelves

against frivolous inmate lawsuits if this Court declines to

cloak them with absolute immunity. As this Court

previously recognized:

Economou, 438 U.S. at 507.

Many civil rights lawsuits involve contested

allegations which can be resolved only by an evaluation

dach a motion to dismiss or for summary judgment will

698 F.2d at 126-27.

Other procedural devices exist as well to protect a

hearing officer against vexatious lawsuits. Rule 11 of the

Federal Rules of Civil Procedure provides that if a signed

bad faith affidavit is submitted in of a motion

for summary judgment. Fed.R.Civ.P Rule 56ig)

Attorneys fees can be awarded even a pro se

461 US. 424 (1983); Gerena-Valentin v. Koch, 739 F.2d

755. 761 (2d Cir. 1984).

5 U.S.L.W. 4778 (June 17, 1985), which effectively eliminated

an inmate's right to federal court review of the correctness of the

guilty determination.

27

Besides these procedures, the federal courts’ abilit

deny motions to goceeed ——

USC. $1915id) on the ground of frivolousness is

copecially useful in preventing prison hearing officers

being subjected to harassing lawsvits. This

screening device, which is invoked frequently by federal

district courts, permits the dismissal of frivolous

complaints before they are served on defendants.” The

crerwsetning majority of inmates who file civil rights

wsuits also move te proceed in forma pauperis. As

such, this procedure operates to keep prison disciplinary

— more then other administrative hearing

—.— 2 that frivolous lawsuits were

1983 Suits in the Federal Courts. 92 Harvard LR 610 617-19

Because of the intrinsic obstacles to an objective

evaluation of the facts, adherence at a prison disciplinary

an inmate an initial opportunity to try to

granted only in exceptional circumstances.

29

Fitzgerald, 457 U.S. 731, 747 (1982): Butz v. Economou,

438 U.S. at 507; Wood v. Strickland, 420 US. 308, 320

(1975); Scheuer v. Rhodes, 416 U.S. at 242-45.

great many other judicially comparable

safeguards, it is patent that the ex

holdings [are] little more than promises Wolff v.

Respectfully submitted,

STEPHEN M. LATIMER

DAVID C. LEVEN

PRISONERS’ LEGAL SERVICES

OF NEW YORK

Telephone: (212) 513-7373

ELLEN M. YACKNIN

ROBERT D. LONSKI

PRISONERS’ LEGAL SERVICES

OF NEW YORK

487 Niagara Street

Buffalo, New York 14201

Telephone: (716) 856-2650

APPENDIX A

Statements Of Interest Of Individual

Organizations Amici Curiae

Prisoners’ Legal Services of New York, Inc. is a six-

office, non-profit, public interest law firm which provides

support work around issues which impact the

communities of color. Aen yt nly

ag involving the incarcerated because people of color

. Specifically

approximately 1,753 programs engaged in providing

representation to indigents accused of criminal offenses.

The membership of NLADA, therefore, comprises most

Appendix A Statements Of Interest Of Individual

Organizations Amici Curae.

public defender offices and legal services agencies around

the nation, as well as assigned counsel plans and private

practitioners. Consequently, NLADA has a vital interest

in the issue of whether hearing officers at disciplinary

hearings within prisons are entitled to absolute

immunity, since the individuals who regularly appear

before such officers are indigent, and NLADA's

membership represent these indigents on a daily basis.

The Alabama Prison Project is an affiliate of the

Southern Coalition on Jails and Prisons. It is a non-

3a

Appendix A- Statements Of Interest Of Individual

Amici Curiae.

and representation to prisoners in state and county

institutions in Massachusetts. The organization's main

purpose is to enforce and further the basic civil rights of

incarcerated men and women, and its staff attorneys

5a

Appendix A- Statements Of Interest Of Individual

Organizations Amici Curiae.

raised by this case as to whether or not disciplinary

hearing officers are entitled to absolute immunity.

Keystone Legal Services, Inc., has two state

The Defender General of the State of Vermont is

authorized by state law to provide legal services to all

The Institutional Legal Services Project of Evergreen

Legal Services is a Washington State funded

organization. ILSPELS provides legal services to three

of the major prisons in the state of Washington. Its

assistance. The ILSPELS has a special interest in aac,

involving prisons and prison officials.

Appendix A—Statements Of Interest Of Individual

Organizations Amici Curiae.

Wisconsin Correctional Services, Inc., was founded in

1912, under the name of Society for the Friendless. WCS

was incorporated in 1940 as a non-profit organization.

WCS runs forty programs to assist correctional clients

with problems ranging from drug and alcohol

dependency, to helping mentally ill individuals. Some of

the programs WCS runs include halfway houses, drug

residency programs, and pre-release support groups.

Finally, WCS serves approximately 5,000 clients per

year, and employs a staff of 160 individuals.