# Amicus Curiae Brief — Cleavinger v. Saxner > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0362%3A8 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1985 - **Citation:** 474 U.S. 193 ## Text 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 Hu 1 6 ‘| 11 iti Hi HII 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 . 1 0 1 00 iin ei & aba gab e MUTT die BRE h iH l Haale ; ae a . ö aH st ei ASA] ete eT 11275 7 HH aie 1 sta 117 I 10 H 12 li 11 nF 5 141251 . ö bs 7 . i 1 0 i i is lial 1 100 5 e PF 325 131227132 ed Id at 910, 13-15. "Id at 17-18. 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0362%3A8. Public record. Not legal advice.