Amicus Curiae Brief — Wilkinson v. Austin

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No. 04-495 JAN 26 2005

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Jn the Supreme Court of the Cinited States —~

REGINALD A. WILKINSON, DIRECTOR, OHIO

DEPARTMENT OF REHABILITATION AND CORRECTION,

ET AL., PETITIONERS

CHARLES E. AUSTIN, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

PAUL D. CLEMENT

Acting Solicitor General

Counsel of Record

CHRISTOPHER A. WRAY

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

JONATHAN L. MARCUS

Assistant to the Solicitor

General

STEVEN L. LANE

Attorney

Departin wt of Justice

Washington, D.C. 20530-0001

/ J02) 5] 5- 2? 1 ?

QUESTION PRESENTED

Whether the Due Process Clause is satisfied by the appli-

cation of informal, non-trial-type procedures in making the

decision that prison security concerns justify placing an

inmate in a supermaximum-security facility.

(1)

TABLE OF CONTENTS

Page

Interest of the United States . spcialiint picbiainaaeneanstanamantans |

EE 2

Ee Ee 7

Argument:

Ohio's procedures for placements in its supermaxi-

mum facility are more than adequate to satisfy Due

PUOIBGD cceccesassecasssssssscnssesessnessssssnsssonneresvsssseonscssssssveceseessocesecoeseces 10

1. Mathews v. Eldridge provides the appropriate

framework for determining what process is

constitutionally required to protect an asserted

A 11

II. Ohio's procedures readily satisfy due process

under the circumstances 7 16

A. The liberty interest respondents possess,

if any, in avoiding placement at OSP is

not particularly weighty ...............ccccsseeserereeees 16

B. Petitioners’ interest in ensuring the safety

and security of inmates and prison staff

is compelling a 20

C. The Court-imposed procedures will not

_ substantially reduce the risk of error in

petitioners’ placement decisions ...............0000« 21

Irn cietehceeareeedteacneartenennenntnnntrenesnsenetaennsensnenaeasescessese 29

: TABLE OF AUTHORITIES

Cases:

Ajaj v. Smith, No. 08-7874, 2004 WL 1663968 (4th Cir.

aS GEES IED ctnceeceesencenmnsanenssnnsseasscsnccemecescetees 19

Bell v. Wolfish, 441 U.S. 520 (1979) - 15

Board of Curators of the Univ. of Mo. v. Horowitz,

435 U.S. 78 (1978) 20, 23, 24

(IIT)

Cases—Continued: Page

Board of Regents of State Colls. v. Roth, 408 U.S.

54 (1972) 10

Cafeteria & Rest. Workers Union, Local 473 v.

McElroy, 367 U.S. 886 (1961) “ 14

Connecticut Bd. of Pardons v. Dumsachat, 452

U.S. 458 (1981) 23

FDIC vy. Mallen, 486 U.S. 230 (1988) 28

Gerstein v. Pugh, 420 U.S. 108 (1975) 22

Goss v. Lopez, 419 U.S. 565 (1975) 20

Greenholtz v. Inmates of the Neb. Penal &

Corr. Complex, 442 U.S. 1 (1979) 14, 17, 25

Hamdi v. Rumsfeld, 1248. Ct. 2633 (2004) 11

Hewitt v. Helms, 459 U.S. 460 (1983) passim

Kentucky Dep't of Corrs. v. Thompson, 490 US.

454 (1989) 16

Mathews v. Eldridge, 424 U.S. 319 (1976) .............. 6,8, 11,14

McKune vy. Lile, 536 U.S. 24 (2002) 17

Meachum v. Fano, 427 U.S. 215 (1976) ........ 8, 16, 17, 18, 23

Miller vy. Henman, 804 F 2d 421 (7th Cir. 1986),

cert. denied, 484 U.S. 844 (1987) 19

Montayne v. Haymes, 427 U.S. 236 (1976) ............. 16, 17, 18

Morrissey v. Brewer, 408 U.S. 471 (1972) 12

Olim v. Wakinekona, 461 U.S. 238 (1983) 17, 18

Overton v. Bazzetta, 539 U.S. 126 (2003) 21

Sandin v. Conner, 515 U.S. 472 (1995) 6, 8,

9, 13, 15, 18, 19, 20

Thomas v. Gunja, No. 08-1129, 2004 WL 2044311

(10th Cir. 2004) (110 Fed. Appx. 74) 19

Vitek v. Jones, 445 U.S. 480 (1980) 16, 19

Washington v. Harper, 494 U.S. 210 (1990) 16

Wolff v. McDonnell, 418 U.S. 589 (1974) .ncccccceceoee 5, 12, 14

Constitution, statutes, and regulations: Page

U.S. Const.:

Amend. XIV (Due Process Clause) 1, 5,

14, 16, 17, 18, 19, 20

18 U.S.C. 3621(b) 26

18 U.S.C. 3625 26

42 U.S.C. 1988 ; 5

28 C.F.R.:

Sections 541.40 et seq. 2,10

Section 541.40(a) 2

Sections 542.10-542.19 27

Sections 542.10-542.20 . 2s

Section 542.11 27

Section 542.12 27

Miscellaneous:

BOP Program Statement No. 5100.07, Security De-

signation and Custody Classification Manual, Ch. 10

(Jan. 31, 2002) <www.bop.gov/progstat/5 100-007.

pdf> 2, 26, 27

Ohio Dep't of Rehab. and Corr. Policy 111-07

(Mar. 1, 2002) passim

Chase Riveland, Supermar Prisons: Overview and

General Considerations (Nat'l Inst. of Corr.

Jan. 1999) 3, 19, 21, 23

S. Rep. No. 225, 98th Cong., Ist Sess. (1983) 26

In the Supreme Court of the Anited States

No. 04-495

REGINALD A. WILKINSON, DIRECTOR, OHIO

DEPARTMENT OF REHABILITATION AND CORRECTION,

ET AL., PETITIONERS

CHARLES E. AUSTIN, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

‘ BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

This case presents the question whether the Due Process

Clause requires prison officials to apply formal, trial-type

procedures in determining whether institutional security

concerns warrant placing an inmate in a supermaximum-se-

curity facility. The Federal Bureau of Prisons (BOP) main-

tains highly restrictive, non-punitive housing at the Admin-

istrative Maximum Security facility in Florence, Colorado

(ADX Florence), and the United States Penitentiary in

Marion, Illinois (USP Marion), whose conditions are compa-

rable in some respects to those at the Ohio State Peniten-

tiary (OSP), the “supermaximum, or supermax, facility” in-

volved in this case. Pet. App. la. The BOP’s most restric-

(1)

tive non-punitive housing unit is the Control Unit at ADX

Florence, which is designed for “inmates who are unable to

function in a less restrictive environment without being a

threat to others or to the orderly operation of the institu-

tion.” 28 C.F.R. 541.40(a). The Control Unit currently

houses 49 inmates. At both ADX Florence and SP Marion,

BOP also maintains high-security and general-population

units that currently house approximately 800 inmates with

conditions slightly less restrictive than the Control Unit but

still comparable in some ways to OSP’s.

Although entry to the Control Unit is preceded by an ex-

tensive process involving the inmate, see 28 C.F.R. 541.40 et

seq., BOP generally does not apply the kind of procedures

that the court of appeals viewed as constitutionally required

before transferring an inmate to the Florence and Marion

facilities. See BOP Program Statement No. 5100.07, Secu-

rity Designation and Custody Classification Manual, Ch. 10

(Jan. 31, 2002) (setting forth inmate-transfer policy) <www.

bop.gov/progstat/5100-007.pdf>. Because affirmance of the

court of appeals’ decision could have a detrimental impact on

BOP’s ability to make inmate-transfer decisions in the

paramount interest of prison security, the United States has

a substantial interest in the resolution of the question

presented.

STATEMENT

1. In May 1998, Ohio opened OSP, its supermax facility,

in response to an April 1993 riot at what was then its most

secure maximum-security prison, the Southern Ohio Correc-

tional Facility. Pet. App. 2a-3a. Supermax facilities, em-

ployed in many States and in the federal prison system,

house the most dangerous elements of t!.2 prison population

and are intended to make the rest of the general prison

population safer and easier to control. Jd. at 2a. According

to the National Institute of Corrections, at least 30 States

and BOP had supermax housing as of 1999. Chase Riveland,

Supermax Prisons: Overview and General Considerations 1

(Nat'l Inst. of Corr. Jan. 1999). “The trend toward prolifera-

tion of supermax housing would appear to be at least par-

tially related to the belief that maintaining order in the

larger part of a prison—or an entire corrections system—is

enhanced by isolating the most serious and chronic trouble-

makers from the general population.” Jd. at 5.

The conditions at OSP are typical of such supermax facili-

ties. Inmates there are subject to greater restrictions than

inmates in other Ohio prisons, including those in administra-

tive segregation at other facilities. These include “extra

limitations on personal property rights, access to telephones

and counsel, outside recreation, and communication with

other persons.” Pet. App. 4a-5a. Inmates spend 23 hours

per day in their individual cells, which are designed to pre-

vent communication between them. /d. at 4a. Inmates have

access to two indoor recreation rooms during the one hour

per day in which they are permitted to leave their cells and

have recreation either alone or with one other inmate. /bid.

Inmates having visitors are separated from them by solid

windows and are strip-searched whenever they leave and

reenter the cellblock. bid.

The Ohio Department of Rehabilitation and Correction

(ODRC) assigns each inmate a security rating of Level 1

(lowest risk) to Level 5 (highest risk) based on a multi-factor

assessment of the risk he presents. Pet. 6. A prisoner re-

ceives an initial classification upon incarceration, which is

subject to change at any time during the prisoner’s term.

Ibid. Prisoners rated Level 1 through Level 4 are housed in

prisons throughout the State; Level 5 inmates are automati-

cally housed at OSP unless they are seriously mentally ill.

Ibid.; see Pet. App. 124a.

The procedures used to place inmates in Level 5 are set

forth in ODRC Policy 111-07, the relevant version of which

was scheduled to take effect on March 1, 2002, Pet. App.

122a-140a, had it not been preempted by the district court’s

decision, id. at 47a-12la. Under Policy 111-07, certain ODRC

officials may initiate the placement of an inmate in Level 5

by completing a “Security Designation Long Form” that re-

views and rates the inmate’s characteristics and conduct. /d.

at 127a. The Warden then designates a classification com-

mittee to determine whether the inmate meets one or more

of certain heightened-security issues set forth in the “Level

5 criteria.” Jbid. Those include, inter alia, having: engaged

in “assaultive and/or predatory behavior”; committed an of-

fense before incarceration that “constitutes a current threat

to the security and orderly operation of the institution and to

the safety of others”; “lead [sic], organized, or incited a seri-

ous disturbance or riot”; possessed or conveyed “major con-

traband”; been identified as “a leader, enforcer, or recruiter”

of a prison gang; “escaped[] or attempted to escape”; or

“knowingly exposed others to the risk of contracting a dan-

gerous disease.” /d. at 127a-129a. After providing the in-

mate with at least 48 hours’ notice and the opportunity to be

heard in person and in writing, the committee determines

whether “the inmate has met one of the criteria * * * and

whether the inmate should be placed in level 5” and makes a

written recommendation to the Warden. /d. at 129a-130a. If

the Warden disagrees with a recommendation for Level 5

classification, the inmate is not placed at OSP; if the Warden

agrees that Level 5 classification is appropriate, the prisoner

is notified and given 15 days to object. Jd. at 6a. The matter

is forwarded to the Bureau of Classification for “final deci-

sion.” [bid.

Within 30 days of an inmate’s placement at OSP, OSP

staff reviews the inmate’s file “to determine if [he has] been

properly classified” and may recommend a security reduc-

tion to the Warden. Pet. App. 132a. If the Warden agrees,

the recommendation is sent to the Bureau of Classification

for final decision. /bid. If the staff determines that Level 5

placement is appropriate, the staff meets with the inmate to

advise him, inter alia, “whether release to a general popula-

tion institution in three years or less appears reasonably

possible.” /bid.

Review of each OSP inmate's security classification is

made “at least annually” in a “supervision review.” Pet.

App. 187a. After providing the inmate with 48 hours’ notice

and an opportunity to participate orally and in writing, a

three-member classification committee performs a “compre-

hensive review of the inmate's institutional adjustment and

behavior,” and, using “professional correctional judgment,”

makes an assessment of the “risk to safety and security”

posed by the inmate based in part on a non-exhaustive list of

factors. /d. at 137a-139a. The committee then prepares a

recommendation “to reduce or continue the inmate’s security

level,” which must include the “basis for its decision and the

factors relied upon.” Jd. at 139a. That recommendation is

subject to the same review process as the initial transfer

recommendation. /d. at 139a-140a.

2. Respondents, inmates who are or may be housed in

the OSP, filed a class action under 42 U.S.C. 1983 in the

United States District Court for the Northern District of

Ohio on January 1, 2001, claiming, inter alia, that the proce-

dures used to place and keep prisoners at OSP are deficient

under the Due Process Clause of the Fourteenth Amend-

ment. Pet. App. la, 5a; Pet. ii.

Following a bench trial, the district court ruled that the

procedures established by Policy 111-07 fail to satisfy due

process. Pet. App. 47a-12la. The court concluded first that

respondents have a state-created liberty interest in avoiding

placement at OSP. /d. at 96a. The court next held that as-

signment procedures had to meet the requirements of Wolff

v. McDonnell, 418 U.S. 539 (1974). Id. at 105a. In particular,

the court ordered petitioners to supplement their procedures

by providing each inmate with, inter alia: advance “written

notice of all the grounds believed to justify his placement at

Level 5 and a summary of the evidence that [petitioners] will

rely upon for the placement” on pain of being barred from

relying on any grounds not mentioned (id. at 40a); the ability

to call “reasonable witnesses,” including other inmates, and

to “present documentary evidence” at the classification

committee hearing (ibid.); a copy of each recommendation

and the final decision, which must include a “detailed and

specific justification” (id. at 4la-43a); and notice, at least

twice annually, of “what specific conduct is necessary for

that prisoner to be reduced from Level 5” (id. at 44a).

3. A divided panel of the court of appeals affirmed in

part, reversed in part, and remanded. Pet. App. la-35a. The

majority held first that “inmates enjoy a liberty interest in

not being placed at OSP” because OSP “constitutes an atypi-

eal and significant hardship” under Sandin v. Conner, 515

U.S. 472 (1995). Pet. App. 14a. In so holding, the majority

relied on the fact that conditions at OSP are more restrictive

than those prevailing in Ohio’s other prisons. /bid.

The majority next upheld the district court’s modifications

to Policy 111-07 un the ground that they reflected a proper

balancing of the private and governmental interests under

Mathews v. Eldridge, 424 U.S. 319 (1976). The majority con-

cluded that respondents’ private interest in avoiding OSP

placement is “necessarily * * * of a weight requiring

greater due process protection” because “[a)ny liberty inter-

! The district court also required that classification hearings be re-

corded; prisoners receive notice of the committee’s intent to rely on confi-

dential testimeny; the Werden engage in “independent review” of the

committee's recommendation; the inmate be provided with notice of the

Warden's reliance on any confidential witness statement not already dis-

closed; and no one involved in the inmate's original classification take part

in the prisoner’s appeal to the Warden or to the Bureau of Classification.

Pet. App. 20a-21a.

est which passes Sandin’s [atypicality] threshold comes with

a higher presumption of process due than those which may

have been found pre-Sandin.” Pet. App. 22a & n.12. The

majority also weighed the value of the district court’s

additional procedural requirements in respondents’ favor,

noting the district court’s “findings concerning past

erroneous and haphazard placements at OSP” (id. at 22a)

and asserting that the cost of complying with the new

requirements do not “outweigh [their] probative and pro-

tective value” (id. at 23a). Finally, the majority acknowl-

edged the governmental “interest in guaranteeing the safety

of [prison] staff and inmates through the swift isolation of

dangerous inmates,” but concluded that petitioners could use

administrative segregation, “which does not require

extensive process,” as an alternative for assuring safety. Id.

at 22a.

Judge Rogers concurred in part and dissented in part.

Pet. App. 26a-35a. Judge Rogers disagreed with the major-

ity’s “relifance] on Sandin to conclude that the liberty inter-

est in this case is particularly weighty,” explaining that “a

hardship that is only marginally atypical and marginally sig-

nificant should only be given marginal weight in [a Mathews]

analysis.” Jd. at 3la. Judge Rogers stated that he would

nevertheless “uphold all of the procedural requirements im-

posed by the district court except the requirement that offi-

cials limit their placement decision to those matters detailed

in the notice to the inmate.” Jd. at 29a. That requirement,

he explained, burdened petitioners with “cull[ing] through

often voluminous records and not[{ing] every potentially

relevant fact” in the notice, but did not increase the accuracy

of the decisionmaking process. /d. at 33a.

SUMMARY OF ARGUMENT

Under the flexible and context-specific analysis that gov-

erns procedural due process claims, the procedures accorded

to prisoners placed in Ohio’s supermaximum facility are

more than sufficient to satisfy the Constitution (assuming

that the placement in such a facility even implicates a liberty

interest that triggers due process scrutiny). Formal, trial-

type procedures are not mandated; indeed, even less formal

procedures than the State has adopted here are adequate, in

light of the substantial deference owed to prison officials in

making predictive judgments designed to maintain institu-

tional security.

In Mathews v. Eldridge, 424 U.S. 319 (1976), this Court

established a framework for evaluating the sufficiency of

particular procedures that weighs the “private interest” at

stake against the governmental interest advanced by the

challenged policy, and considers both the risk that the pri-

vate interest will be erroneously deprived by the procedures

provided and the burden of additional process on the gov-

ernment. In considering due process claims in the prison

setting, the guiding principle has been one of substantial

deference to prison administrators, based on the recognition

that they possess superior expertise, especially with respect

to issues pertaining to institutional security. See Sandin v.

Conner, 515 U.S. 472, 482-483 (1995).

The court of appeals’ decision rejecting Ohio’s Policy 111-

07 reflects a misapplication of Mathews and a misunder-

standing of the fundamentally discretionary and predictive

nature of the inmate-placement decision. First, the court

placed too much weight on the liberty interest it found re-

spondents to have in avoiding transfer to OSP. Beginning

with Meachum v. Fano, 427 U.S. 215 (1976), this Court has

consistently held that a prisoner possesses no liberty inter-

est in avoiding transfer to a prison with substantially more

burdensome conditions. When this Court held in Sandin

that state action creates a liberty interest when it “imposes

atypical and significant hardship on the inmate in relation to

the ordinary incidents of prison life,” id. at 484, it reaffirmed

Meachum. Thus, placement in the more burdensome condi-

tions at OSP, compared to conditions in the general prison

population, does not even implicate a liberty interest, let

alone one of substantial weight. But even if such placement

were to pass the Sandin threshold, it would mean only that

there is a liberty interest to evaluate. It would not alter the

strong interest of prison officials in maintaining safety and

security nor erode the deference owed to the predictive

judgments of prison officials.

Second, the court of appeals failed to accord sufficient

weight to Ohio’s compelling interest in promoting institu-

tional security. Indeed, this Court has ranked that interest

as the most fundamental responsibility of prison administra-

tors, to whom deference is owed. Sandin, 515 U.S. at 482-

483. In approving numerous modifications to an already ex-

tensive process that Ohio provides its inmates before placing

them in OSP, the court of appeals did not pay any deference

to Ohio’s judgment about the best manner in which to effect

an inmate placement.

Finally, the court of appeals e1 ed in concluding that the

district court’s modifications—designed to aid the inmate in

eliciting specific facts—would enhance the inmate-transfer

decisionmaking process. The decision whether to transfer an

inmate in order to promote institutional security is a funda-

mentally predictive judgment that turns largely on subjec-

tive evaluations of numerous factors rather than the narrow

resolution of specific historical facts. The highly discretion-

ary nature of the inmate-placement decision simply does not

lend itself to the type of rigid procedures that the courts be-

low imposed.

Indeed, even more informal procedures than employed by

Ohio are constitutionally sufficient. BOP effects the transfer

of some inmates with chronic behavioral problems into its

highest-security prisons without the formal hearing proce-

dures called for by the court of appeals. Like Ohio, BOP has

a three-tiered recommendation and review process for in-

mate transfers to USP Marion and to ADX Florence (other

than the Control Unit). Unlike in Ohio, however, the inmate

does not directly participate in that process. Instead, the

inmate may challenge a placement decision through the ad-

ministrative remedy program. See 28 C.F.R. 542.10 et seq.

That procedure provides the inmate with an after-the-fact

formal appeal process. BOP’s informed judgment that it

promotes sound prison management to make inmate-trans-

fer decisions in this manner supports Ohio’s position that the

court-imposed modifications requiring even greater inmate

participation in the placement process will burden the place-

ment decision without providing any concomitant benefit.

ARGUMENT

OHIO’S PROCEDURES FOR PLACEMENTS IN ITS SU-

PERMAXIMUM FACILITY ARE MORE THAN ADE-

QUATE TO SATISFY DUE PROCESS

It is settled that “(t]he requirements of procedural due

process apply only to the deprivation of-interests encom-

passed by the Fourteenth Amendment’s protection of liberty

and property.” Board of Regents of State Colls. v. Roth, 408

U.S. 564, 569 (1972). Although petitioners argued below that

respondents do not have a liberty interest in avoiding place-

ment in OSP (see Pet. App. 11a, 47a), they do not press that

argument before this Court. Instead, petitioners assume

arguendo that respondents have such an interest, but chal-

lenge the court of appeals’ conclusion that the process pro-

vided is insufficient. Pet. i, 11. Respondents do not have a

liberty interest in which facility they are housed based on

differences in non-punitive conditions. But assuming that a

liberty interest is implicated in this case, the court of ap-

peals’ holding that Ohio’s procedures fail to protect it is in-

correct. The cardinal principle in due process analysis is one

of flexibility to take into account the relevant context, the

competing interests, and the nature of the challenged deci-

sion. Here, where the interest is one of lawfully-incarcer-

ated prisoners in whether they are placed in a supermaxi-

mum-security facility, and the judgment requires an assess-

ment by prison officials of a multiplicity of subjective and

predictive factors about what placement will best promote

institutional security, due process does not mandate any

form of heightened trial-type procedures or elaborate notice-

and-hearing rules. To the contrary, the fundamentally pre-

dictive decision of prison officials can be made, in compliance

with the Constitution, with far less process than Ohio pro-

vides. Accordingly, the judgment of the court of appeals

should be reversed.

I. MATHEWS V. ELDRIDGE PROVIDES THE APPRO-

PRIATE FRAMEWORK FOR DETERMINING WHAT

PROCESS IS CONSTITUTIONALLY REQUIRED TO

PROTECT AN ASSERTED LIBERTY INTEREST

As the Court has repeatedly recognized, the determina-

tion of what process is due:

generally requires consideration of three distinct factors:

First, the private interest that will be affected by the of-

ficial action; second, the risk of an erroneous deprivation

of such interest through the procedures used, and the

probable value, if any, of additional or substitute proce-

dural safeguards; and finally, the Government's interest,

including the function involved and the fiscal and admin-

istrative burdens that the additional or substitute proce-

dural ~-quirement would entail.

Mathews v. Eldridge, 424 U.S. 319, 335 (1976); see Hamdi v.

Rumsfeld, 124 S. Ct. 2633, 2646 (2004) (plurality opinion)

(citing cases). Thus, any liberty interest that a prisoner has

in avoiding placement at a supermaximum facility must be

weighed against the prison’s interest in maintaining institu-

tional security, an interest it seeks to advance by making

placement determinations that fundamentally reflect discre-

tionary, predictive judgments.

1. The Court's decisions in the prison context exemplify

the principle that the type of process due varies substan-

tially based on a context-specific balancing of the Mathews

factors. In Wolff v. McDonnell, 418 U.S. 539 (1974), the

Court addressed the adequacy of the procedures employed

by Nebraska officials in deciding » hether to discipline in-

mates for misconduct by placing them in segregated con-

finement and revoking “good time” credits. /d. at 563-572.

The Court held that the inmates had a state-created liberty

interest in avoiding those sanctions, id. at 558, which could

“postpone the date of eligibility for parole and extend the

maximum term to be served,” id. at 561. But the Court con-

cluded that the Nebraska prison officials were required to

apply only “some, but not all,” id. at 571, of the formal-trial-

type procedures the Court had mandated in Morrissey v.

Brewer, 408 U.S. 471, 489 (1972), for final parole revocations.

In particular, the Court held that a prisoner facing miscon-

duct charges must be given 24 hours’ advance written notice

of the charges against him; the right to call witnesses and

present documentary evidence in a manner consistent with

institutional security; if illiterate, staff assistance in prepar-

ing a defense; an impartial tribunal; and a written statement

explaining the basis of the tribunal’s decision. Wolff, 418

U.S. at 563-570. The Court refused, however, to require that

prisoners be given counsel or the opportunity to cross-ex-

amine witnesses, citing the risk of “disruption” in allowing

confrontation and noting that the insertion of counsel would

“inevitably give the proceedings a more adversary cast and

tend to reduce their utility as a means to further correctional

goals.” Id. at 568-570.

Subsequently, in a prisoner’s challenge to administrative

segregation, this Court rejected the contention that Wolff

procedures were required. Hewitt v. Helms, 459 U.S. 460,

466 (1983). Applying the Mathews framework, the Court

first explained that the inmate's “private interest [was] not

one of great consequence” because: “[hje was merely trans-

ferred from one extremely restricted environment to an

even more confined situation”; “the stigma of wrongdoing or

misconduct d{id] not attach to administrative segregation”;

and segregation would not “have any significant effect on

parole opportunities.” Hewitt, 459 U.S. at 473. The Court

further explained that, by contrast, the State’s interest in

confining inmates in administrative segregation was of

“great importance,” not least because “(t]he safety of the

institution’s guards and inmates is perhaps the most funda-

mental responsibility of the prison administration.” /bid.

Finally, the Court focused on the nature of the challenged

decision. The Court observed that “assessing the seriousness

of a threat to institutional security” requires prison adminis-

trators to make “purely subjective evaluations and

* * * predictions of future behavior” based not only on “the

specific facts surrounding a particular incident,” but also on

“the character of the inmates confined in the institution, re-

cent and longstanding relations between prisoners and

guards, prisoners inter se, and the like.” 459 U.S. at 474.

That assessment, the Court concluded, does not “involvef]

decisions or judgments that would * * * be[] materially

assisted by a detailed adversary proceeding.” Jd. at 473-474.

Accordingly, the Hewitt Court held that the prison

authorities were “obligated to engage only in an informal,

nonadversary review of the information supporting [the in-

mate’s] administrative confinement * * * within a reason-

2 The Hewitt Court's antecedent methodology for identifying a pro-

tected liberty interest was rejected in Sandin v. Conner, 515 U.S. 472,

480-484 & n.5 (1995). Nevertheless, the Hewitt Court's application of Mat-

thews remains instructive.

able time after confining him.” 459 U.S. at 472.° The Court

stated that “[a]n inmate must merely receive some notice of

the charges against him and an opportunity to present his

views to the prison official charged with deciding whether to

transfer him to administrative segregation.” Jd. at 476."

2. These cases illustrate that the requirements of due

process are necessarily “flexible and variable dependent

upon the particular situation being examined.” Hewitt, 459

U.S. at 472; see Wolff, 418 U.S. at 560 (“The very nature of

due process negates any concept of inflexible procedures

universally applicable to every imaginable situation.”)

(quoting Cafeteria & Rest. Workers Union, Local 473 v.

McElroy, 367 U.S. 886, 895 (1961)). “(Flexibility is neces-

sary to gear the process to the particular need.” Greenholtz

v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 13

(1979) (citing Mathews, 424 U.S. at 335).

* The similarly predictive and multi-factored nature of the parole-re-

lease determination prompted the Court in Greenholtz v. Inmates of the

Neb. Penal & Corr. Complex, 442 U.S. 1 (1979), to hold that the Due Proc-

ess Clause did not require Nebraska to provide a formal, adversarial proc-

ess. Because the parole-release determination involved “analysis of psy-

chological factors combined with fact evaluation guided by the practical

experience of the actual parole decisionmakers in predicting future be-

havior,” id. at 13, the Court concluded that “[pjrocedures designed to elicit

specific facts, such as those required in * * * Wolff,” id. at 14, would not

enhance the decisionmaking process. As with Hewitt, that aspect of the

Court's decision remains instructive after Sandin, which rejected Green-

holtz’s methodology for identifying a protected liberty interest. See note

2, supra.

* The Court made clear that the State did not have to provide the in-

mate a hearing, explaining that “(o}rdinarily a written statement by the

inmate” is sufficient. Hewitt, 459 U.S. at 476. The Court further observed

that “administrative segregation may not be used as a pretext for indefi-

nite confinement of an inmate,” and that “(prison officials must engage in

some sort of periodic review of the confinement of such inmates.” /d. at

477 nn.

In balancing the relevant factors in the prison context, the

Court has stressed that “one cannot automatically apply pro-

cedural rules designed for free citizens in an open society

. . . tothe very different situation presented * * * ina

state prison.” Hewitt, 459 U.S. at 472 (internal quotation

marks omitted). The Court has also been guided by the

principle that prison administrators “should be accorded

wide-ranging deference in the adoption and execution of

policies and practices that in their judgment are needed to

preserve internal order and discipline and to maintain

institutional security.” Jbid. (quoting Bell v. Wolfish, 441

U.S. 520, 547 (1979)). Accord Sandin, 515 U.S. at 482-483.

In light of this Court’s emphasis on the flexibility inherent

in procedural due process, Wolff and Hewitt are properly

viewed not as providing the only two discrete bundles of

procedures that are available for prisons, but as benchmarks

that aid the determination of what process is due under the

Mathews framework. “Thus[,] to the extent, for instance,

that Hewitt instructs that additional procedures with respect

to ‘forward-looking’ determinations are less likely to in-

crease the accuracy of such decisions * * *, that guidance

may appropriately be applied—not categorically but as part

of the weighing—in other cases involving different proce-

dures and different * * * interests.” Pet. App. 29a

(Rogers, J., concurring and dissenting). Here, although the

court of appeals correctly rejected applying a “mechanistic”

approach, id. at 18a, it erred in its application of the Mathews

factors by assigning too much weight to the asserted liberty

interest, too little weight to the State's interest in promoting

long-term security in its prisons, and far too much value to

Il. OHIO’S PROCEDURES READILY SATISFY DUE PRO-

CESS UNDER THE CIRCUMSTANCES

By promulgating Policy 111-07, Ohio has chosen to provide

inmates who are identified as posing a serious threat to

prison security with an extensive process before placing

them in its highest-security facility, the OSP. That process,

described in more detail below, is more than sufficient to

protect whatever liberty interest a prisoner has in avoiding

placement at OSP. Indeed, the States and the federal gov-

ernment are free to, and have, adopted a range of procedures

to deal with the paradigmatic penological decision of when

assignment to a supermaximum-security facility is war-

ranted to protect prison security. A prisoner may be ac-

corded less extensive process than Ohio has provided with-

out violating the Constitution.

A. The Liberty Interest Respondents Possess, If Any, In

Avoiding Placement At OSP Is Not Particularly Weighty

1. It is well established that “given a valid conviction, the

criminal defendant has been constitutionally deprived of his

liberty to the extent that the State may confine him and sub-

ject him to the rules of its prison system so long as the condi-

tions of confinement do not otherwise violate the Constitu-

tion.” Meachum v. Fano, 427 U.S. 215, 224 (1976). For this

reason, even a substantial adverse change in the lawful con-

ditions of an inmate’s confinement does not by itself trigger

the protection of the Due Process Clause. Id. at 224-225;

Montanye v. Haymes, 427 U.S. 236, 242 (1976); Kentucky

Dep't of Corr. v. Thompson, 490 U.S. 454, 460-461 (1989).

Only when conditions are “qualitatively different from the

punishment characteristically suffered by a person convicted

of crime” has the Court held that the Due Process Clause, of

its own force, creates a liberty interest requiring procedural

protections. Vitek v. Jones, 445 U.S. 480, 493 (1980) (interest

in avoiding transfer to mental institution); see Washington v.

Harper, 494 U.S. 210, 221-222 (1990) (interest in being free

from involuntary administration of psychotropic drugs).

Based on the recognition that a prisoner’s liberty interests

are substantially diminished by virtue of his lawful convic-

tion and that “the decision where to house inmates is at the

core of prison administrators’ expertise,” McKune v. Lile,

536 U.S. 24, 39 (2002) (plurality opinion), this Court has re-

peatedly held that the decision to transfer an inmate to a

more restrictive facility does not trigger a liberty interest

under the Due Process Clause. As the Court explained in

Meachum in rejecting the claim that the State’s transfer of

prisoners to a maximum-security institution implicated the

Due Process Clause, there is no liberty interest protecting

against “transfer from one institution to another within the

state prison system.” 427 U.S. at 225. That is because

“{cjonfinement in any of the State’s institutions is within the

normal limits or range of custody which the conviction has

authorized the State to impose.” Ibid. Accordingly, the dis-

agreeable nature of life in another institution with “more se-

vere rules” does not mean, in itself, that a liberty interest is

implicated. Ibid. See Montanye, 427 U.S. at 242 (“The [Due

Process] Clause does not require hearings in connection with

transfers whether or not they are the result of the inmate’s

misbehavior or may be labeled as disciplinary or punitive.”);

Olim v. Wakinekona, 461 U.S. 238, 248 (1983) (“The reason-

ing of Meachum and Montanye compels the conclusion that

an interstate prison transfer, * * * does not deprive an in-

mate of any liberty interest protected by the Due Process

Clause in and of itself.”); Greenholtz, 442 U.S. at 11 (“{T}he

inmate’s hope that he will not be transferred to another

prison, * * * is not protected by due process.”).

A line of post-Meachum cases emphasized dictum in

Meachum to suggest that the State itself could create a lib-

erty interest cognizable under the Due Process Clause by

limiting the discretion of prison authorities to effect a prison

transfer. See 427 U.S. at 228; Montanye, 427 U.S. at 243;

Olim, 461 U.S. at 249. This Court rejected this “dictum in

Meachum” in Sandin, 515 U.S. at 479, and changed the

methodology for determining whether a State has created a

liberty interest. Rather than focus on the wording of state

laws to determine whether that language has created an en-

forceable interest, the Sandin Court held that it would look

to whether the State has “created an interest of ‘real sub-

stance,’” id. at 480, by imposing a “restraint which, while not

exceeding the sentence in such an unexpected manner as to

give rise to protection by the Due Process Clause of its own

force, nonetheless imposes atypical and significant hardship

on the inmate in relation to the ordinary incidents of prison

life,” id. at 484 (internal citations omitted).’ Nothing in

Sandin’s rejection of the focus on mandatory or discretion-

ary regulations signals any retreat from the Court’s consis-

tent recognition that transfers between institutions of vary-

ing security does not create a liberty interest.

2. The court of appeals here held that transfer to OSP

“constitutes an atypical and significant hardship under

Sandin,” because the conditions there are more burdensome

than the conditions at other Ohio prisons, including for seg-

regated inmates. Pet. App. 14a. The court observed that

placement at OSP “is indefinite and reviewed only annually”;

deprives prisoners “of all significant human contact”; and

renders them “ineligible for parole.” Jd. at 21a. It is not at

all clear, however, why a transfer from one high-security

prison in Ohio to OSP clears Sandin’s threshold test, in light

of Sandin’s reaffirmance of the holding in Meachum that

> Applying this methodology, the Court held that a Hawaii prisoner's

placement in disciplinary segregation was not atypical because it “mir-

rored” the conditions of administrative confinement and because it did not

“inevitably affect the duration of his sentence.” Sandin, 515 U.S. at 486-

487.

transfer to a higher-security prison does not implicate a lib-

erty interest. Sandin, 515 U.S. at 483 (Meachum “correctly

established and applied” due process principles); id. at 483

n.5 (noting that the abandonment of the Hewitt methodology

did not require overturning the result in Olim where no lib-

erty interest was found).” Nor does the fact that placement

at OSP renders an inmate ineligible for parole necessarily

create a liberty interest, because an inmate being considered

for placement in OSP is unlikely to be found to deserve pa-

role, i.e., release into free society on the premise that the

prisoner does not pose a continuing threat to public safety.

But even assuming for purposes of this case that Ohio has

created a liberty interest, the court of appeals erred in con-

cluding that that interest must “necessarily be of a weight

® Although Meachum involved a maximum-security facility rather

than a “supermaximum” facility, the fact that the highest-security facility

in a typical State is more restrictive than thirty years ago does not make it

“atypical.” While solitary confinement is undoubtedly different from other

modes of confinement, see Brief for the United States as Amicus Curiae at

22 n.15, Meachum v. Fano, No. 75-252, supra, the proliferation of super-

‘max facilities in the last twenty years to address the security needs of

prisons nationwide demonstrates that today twenty-three hour lockdown

for a substantial period of time is not “atypical.” See Riveland, supra, at 2,

3; see also Miller v. Henman, 804 F.2d 421, 422-423 (7th Cir. 1986) (reject-

ing prisoner’s claim that Due Process Clause requires hearing before

transfer to USP Marion in part because that prison, where “prisoner is

confined to his cell most of the day” and is “apt to be chained and closely

guarded” when not so confined “is not ‘qualitatively different from the

punishment characteristically suffered by a person convicted of crime’ ”)

(quoting Vitek v. Jones, 445 U.S. 480, 493 (1980)), cert. denied, 484 U.S.

844 (1987)); Ajaj v. Smith, No. 03-7874, 2004 WL 1663968 (4th Cir. 2004)

(108 Fed. Appx. 743) (unpublished) (per curiam) (prisoner has no pro-

tected liberty interest in avoiding transfer to ADX Florence); Thomas v.

Gunja, No. 03-1129, 2004 WL 2044311, at *2 (10th Cir. 2004) (110 Fed.

Appx. 74) (unpublished) (“Plaintiff's transfer from USP Terre Haute to

USP Florence did not impose atypical and significant hardship on Plaintiff

in relation to the ordinary incidents of prison life.”).

requiring greater due process protection” merely because it

passes the Sandin threshold. Pet. App. 22a. First, Sandin

speaks to whether or not an asserted liberty interest that

does not arise from the Due Process Clause “of its own

force” (515 U.S. at 484) receives any protection, but says

nothing about the relative weight to assign a liberty interest

that crosses the Sandin threshold. Second, the fact that a

liberty interest is cognizable under the Sandin standard, as

the court of appeals found here, but not under the Due Proc-

ess Clause “of its own force,” supports attributing that in-

terest less weight, not more, when conducting the balancing

required by Mathews.

Finally, even assuming a Sandin-based liberty interest is

weighty, it does not necessarily follow that “greater” process

is automatically due. That interest must still be balanced

against the State’s interest and evaluated in light of the na-

ture of the challenged decision and the value and cost of ad-

ditional process. The Court made this point clear in Board of

Curators of the University of Missouri v. Horowitz, 435 U.S.

78, 86 (1978), in which it held that a medical student who suf-

fered a more severe deprivation than the suspended high-

school students in Goss v. Lopez, 419 U.S. 565 (1975), was

entitled to “far less stringent procedural” protection. See pp.

23-24, infra (discussing Horowitz).

B. Petitioners’ Interest In Ensuring The Safety And Secu-

rity Of Inmates And Prison Staff Is Compelling

The principal governmental interest in housing dangerous

inmates at OSP is ensuring the safety of prison officials and

inmates throughout the Ohio prison system. As this Court

has emphasized, that concern is “perhaps the most funda-

mental responsibility of the prison administration” and enti-

tled to great weight in the Mathews balancing. Hewitt, 459

U.S. at 472. Here, that interest is of particular importance.

The State built OSP in response to a riot at what had

. 21

previously been its most secure prison facility. Pet. App. 2a;

cf. Riveland, supra, at 5 (“In 1983, the deaths of two officers

and an inmate resulted in [USP Marion’s] conversion to in-

definite administrative segregation, or lockdown.”). More

generally, supermax placements have responded to the in-

tractable security problems posed by some inmates in even

maximum-security prisons, which lack the specialized facili-

ties and trained personnel available in supermax institutions.

The court of appeals improperly discounted petitioners’

interest in promoting institutional security based on its con-

clusion that petitioners have an alternative “mechanism to

assure safety, one which does not require extensive process,

and which * * * is easily and swiftly reversible in the case

of error: administrative segregation.” Pet. App. 22a. That

conclusion ignores that Ohio has made a judgment that

transfer of disruptive prisoners to OSP serves the long-term

interest in prison security. A series of interim placements

may, in the judgment of prison administrators, create uncer-

tainty and exacerbate any problems in prisoner adjustment

to a new facility. That judgment is undoubtedly entitled to

deference by the courts, see, e.g., Hewitt, 459 U.S. at 472 (de-

cisions regarding institutional security entitled to “wide-

ranging deference”), which should not lightly substitute a

different view that short-term measures to enhance prison

security are adequate to meet the prison’s needs, cf. Overton

v. Bazzetta, 539 U.S. 126, 136 (2003) (reasonableness of

regulation can be undermined by regulatory alternative only

where that alternative, inter alia, does not impose “more

than a de minimis cost to the valid penological goal”).

C. The Court-Imposed Procedures Will Not Substantially

Reduce The Risk Of Error In Petitioners’ Placement

Decisions

Ohio’s Policy 111-07 affords inmates placed at OSP with

more than sufficient process in light of the interests dis-

cussed above and the forward-looking and quintessentially

discretionary nature of the inmate-transfer Gerson. Indeed,

sound determinations in such prisoner-assignment decisions

can be made without as elaborate a process as Ohio pro-

vides—as is demonstrated by a comparison to procedures

used in the federal system.

1. Policy 111-07 establishes a three-tiered recommenda-

tion and review process for determining whether an inmate

‘should be housed at OSP. The policy goes beyond the proce-

dures approved by the Court in Hewitt by providing inmates

with advance notice of the classification committee hearing

and with the o»portunity to be heard both in front of the

committee and in writing after the Warden makes his place-

ment recommendation to the Bureau of Classification. Pet.

‘App. 127a-130a. Policy 111-07 also provides substantial

process for OSP retention determinations. Each inmate’s

classification is reviewed within 30 days after he arrives at

OSP and thereafter at least annually. Pet. App. 13la-132a,

137a-140a. Inmates are provided with advance notice of

their “Annual Supervision Review” and with the opportu-

nity to be heard both during the hearing and after the War-

den makes his recommendation to the Bureau of Classifica-

tion. Id. at 139a-140a. :

The value of the additional requirements imposed by the

district court “‘would be too slight to justify holding, as a

matter of constitutional principle[,]’ that they must be

adopted.” Hewitt, 459 U.S. at 476 (quoting Gerstein v. Pugh,

420 U.S. 103, 122 (1975)). The courts below principally man-

dated that Ohio supplement its process by: (1) providing in-

mates with an advance written notice that includes “an ex-

haustive list of the reasons to be considered for placement”

and the evidence prison officials intend to rely on, on pain of

barring prison officials from considering grounds or evidence

not identified; (2) allowing inmates to call witnesses and pre-

sent documentary evidence unless security interests would

be unduly compromised; (3) insisting that prison officials dis-

close as much information as possible about any testimony

from confidential witnesses relied on; and (4) requiring deci-

sionmakers to provide extensive written reasons for their

decisions. Pet. App. 20a-2la. Those formal measures are out

of place in the prisoner-transfer context and will not enhance

decisionmaking.

Although the court of appeals noted that petitioners’

regulations allow OSP placement “only in the presence of

certain factual predicates” (Pet. App. 23a), review of Policy

111-07 makes clear that the decision is, at bottom, a predic-

tive determination about the long-term security risk posed

by the inmate that “turns largely on ‘purely subjective

evaluations and on predictions of future behavior.” Hewitt,

459 U.S. at 474 (quoting Connecticut Bd. of Pardons v.

Dumschat, 452 U.S. 458, 464 (1981)). As this Court has ex-

plained, such assessments “necessarily draw on more than

the specific facts surrounding a particular incident” because

prison officials “must consider the character of the inmates

confined in the institution, recent and longstanding relations

between prisoners and guards, prisoners inter se, and the

like.” IJbid.; see Meachum, 427 U.S. at 225 (“Transfers be-

tween institutions * * * are made for a variety of reasons

and often involve no more than informed predictions as to

what would best serve institutional security or the safety

and welfare of the inmate.”); Riveland, supra, at 9 (“Diagno-

sis, prediction, risk assessment, and identification of causal

factors to violent acting out often defy objective criteria and

invite a significant degree of subjectivity.”).

Even outside the prison context, this Court has empha-

sized the distinction between decisions premised on funda-

mentally predictive judgments as opposed to the retrospec-

tive resolution of factual disputes. For example, in Board of

Curators of the University of Missouri v. Horowitz, 435 U.S.

78 (1978), the Court held that a student dismissed from

medical school was not entitled to a hearing, because the

school officials’ judgment “that she did not have the neces-

sary clinical ability to perform adequately as a medical doc-

tor” was “by its nature more subjective and evaluative than

the typical factual questions presented in the average disci-

plinary decision.” Jd. at 89-90. The Court added that the

decision at issue “requires an expert evaluation of cumula-

tive information and is not readily adapted to the procedural

tools of judicial or administrative decisionmaking.” /d. at 90.

In so holding, the Court “fully recognize|d],” id. at 86 n.3,

that it had required greater process for a less severe depri-

vation in Goss, where the Court held that due process re-

quired that high-school students facing a ten-day suspension

for disciplinary reasons be given notice and an opportunity

to be heard.

Contrary to the court of appeals’ assertion (Pet. App. 23a),

nothing in Policy 111-07 “restrict[s]” petitioners’ authority to

consider subjective factors and to exercise experience-based

judgments in deciding whether an inmate should be housed

at OSP. In fact, the policy specifically requires the classifica-

tion committee to “determine whether the inmate has met

one of the [listed] criteria and whether the inmate should be

placed in Level 5” (id. at 129a-130a) (emphasis added), thus

making clear that the “factual predicates” referred to by the

court of appeals, id. at 23a, are not the only factors to be con-

sidered and do not automatically trigger placement in OSP.

Further, the portion of Ohio’s policy addressing annual re-

tention reviews lists numerous non-historical considerations

and requires the committee to use its “professional correc-

tional judgment to evaluate the inmate’s likelihood to repeat

prohibited actions.” Jd. at 138a-139a."

7 The court of appeals’ focus on the details of the regulations and the

restriction on the discretion of prison officials under the regulations essen-

tially reintroduces the erroneous methodology this Court rejected in

Because petitioners’ placement decisions ultimately turn

on subjective judgments about prison management rather

than on specific, disputed facts, “procedures designed to

elicit specific facts,” Greenholtz, 442 U.S. at 14—such as the

requirements that inmates be allowed to call “reasonable

witnesses” (Pet. App. 40a) and that they receive notice of

“all the grounds believed to justify * * * placement” at

OSP (ibid.) and “a detailed and specific justification” for each

placement recommendation and decision (id. at 42a)—are

unlikely to reduce the risk of erroneous placement decisions.

See Greenholtz, 442 U.S. at 14 (formal hearing on highly dis-

cretionary parole-release decision “would provide at best a

negligible decrease in the risk of error”). Instead, such re-

quirements “would tend to convert the process into an ad-

versary proceeding,” id. at 15-16, and would threaten to hin-

der prison officials by encouraging them to focus on “me-

chanically complying with cumbersome, marginally helpful

procedural requirements, rather than managing their insti-

tution wisely,” Hewitt, 459 U.S. at 474 n.7.

2. The reasonableness of Ohio’s procedures is under-

scored by comparing them to the Bureau of Prisons (BOP).

In the federal system, inmates are housed at ADX Florence

and USP Marion in conditions that are substantially compa-

rable in the level of restriction to those at OSP. BOP’s

placement policy, however, differs from Ohio's in certain re-

spects, the most salient being that a federal inmate does not

receive a hearing before the placement decision (other than

in the Control Unit). BOP’s judgment that hearing from the

inmate before the placement decision is unnecessary to en-

Sandin. The decision where to house an inmate is inherently discretion-

ary and predictive. Even if that discretion is channeled through regula-

tions that make historical facts relevant, that does not change the funda-

mental nature of the decision or give rise to additional constitutional pro-

tections.

sure an effective placement policy supports Ohio’s contention

that the court-imposed modifications to Policy 111-07 will not

enhance the quality of inmate-placement decisions. BOP’s

criteria for transfer are somewhat more general than Ohio’s.

For example, BOP’s inmate-transfer policy provides that

ADX Florence is “for those inmates who have demonstrated

an inability to function in a less restrictive environment

without being a threat to others, or to the secure and orderly

operation of the institution.” BOP Program Statement No.

5100.07, Security Designation and Custody Classification

Manual, Ch. 10 (Jan. 31, 2002) (Program Statement)

§ 3(a)(1). And USP Marion “is reserved for inmates who

have demonstrated an inability to adjust satisfactorily to

general population units in other secure facilities.” Program

Statement § 3(a)(2).”

Although BOP, like Ohio, has a three-tiered review proc-

ess for effecting an inmate’s transfer to those facilities, the

inmate does not directly participate in it unless and until the

inmate challenges the decision in an administrative appeal.

BOP makes placement decisions for its high security housing

units through a process that is similar to its general classifi-

cation and transfer procedures.”

BOP’s policy provides that the Warden may propose an

inmate transfer to Florence or Marion only “(ijf transfer to

another institution is not appropriate|.]” Program State-

ment § 3(a)(3). The Warden must refer a transfer proposal

to the Regional Director, whose concurrence is necessary for

* Like Ohio, BOP does not seek to transfer “[iJnmates currently diag-

nosed as suffering from serious psychiatric illnesses.” Program Statement

§ 3(a)(3).

® Congress has given BOP broad discretion to make prisoner place-

ment and transfer decisions, see 18 U.S.C. 3621(b); S. Rep. No. 225, 98th

Cong., Ist Sess. 142 (1983), and has exempted such decisionmaking from

judicial review under the Administrative Procedure Act, see 18 U.S.C.

3625.

the proposal to reach the North Central Regional Director,

who makes the final decision. Jbid. The North Central Re-

gional Director bases the transfer decision on consideration

of the “referral packet,” which must include “[a] memoran-

dum from the Warden to the appropriate Regional Director

with the specific rationale supporting the institution’s rec-

ommendation”; “[cjopies of all disciplinary reports, investi-

gative materials or other official documentation related to

the behavior prompting the referral”; “[a] current Progress

Report”; “the inmate’s latest Presentence Investigation Re-

port”; “[a] recent psychiatric or mental health evaluation”

and “[a] memorandum from the Regional Director recom-

mending the referral.” Program Statement § 3(a)(4). The

North Central Regional Director must document the final

decision in a memorandum to the requesting Regional Direc-

tor and Warden. Program Statement § 3(a)(5)."”

Although the inmate does not directly participate in that

referral process, he is apt to be familiar with the concerns

prompting the referral, because he has the opportunity to

communicate with his assigned Unit Team and he receives

regular Program Reviews at which problems are discussed.

See 28 C.F.R. 524.11 and 524.12. Moreover, an inmate may

challenge a transfer decision via the Administrative Remedy

Program. See 28 C.F.R. 542.10-542.19. That program pro-

vides the inmate with a formal administrative appeal process

before the Warden, the Regional Director, and the National

Inmate Appeals Administrator in BOP’s Central Office,

Washington, D.C.

Due process does not invariably require an opportunity to

be heard in advance of a decision. See Hewitt, 459 U.S. at

476 & n.8 (providing inmate opportunity to be heard orally or

The North Central Regional Director has the authority to place an

inmate referred to USP Marion in ADX Florence and vice versa. Pro-

gram Statement § 3(a\5).

in writing within reasonable time after decision to place him

in administrative segregation suffices); cf. FDIC v. Mallen,

486 U.S. 230, 240 (1988) (bank officer deprived of property

interest by suspension not entitled to be heard until within

reasonable time after suspension). Here, BOP has a strong

interest in institutional safety and security, and reasonably

concluded that a thorough administrative consideration,

typically based on reports and records generated with in-

formation from the inmate (such as mental health evalua-

tions, presentence reports, progress reports, and disciplinary

reports), followed by a post-assignment oppertunity for a

prisoner to respond and be heard, provides sufficient proc-

ess.'!

BOP’s longstanding judgment that prisoner placement de-

cisions should be carried out by an administrative process

involving prison officials, followed by an opportunity for a

prisoner to be heard in an administrative appeal, demon-

strates that formal, trial-type procedures are unnecessary to

ensure sound decisionmaking in the interest of institutional

security. The court of appeals’ decision approving the dis-

trict court’s modifications of Ohio’s already highly detailed

set of procedures constitutes a misapplication of the

Mathews factors to a decisionmaking process that should be

left largely, if not entirely, to prison administrators.

'! To the extent a placement decision is based in part on disciplinary

violations—the accumulation of which is a common basis for transfer—the

inmate would have had an opportunity to challenge the finding of any such

violations under the procedures set out in Wolff. See 28 C.F.R. 541.10-

541.20.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.