Amicus Curiae Brief — Wolff v. McDonnell

: FILE COPY :

APR 15

ha IN THE

October Term, 1973 .

No. 73-679

CHARLES WOLFF, JR., et al.,

Petitioners,

ROBERT 0. McDONNELL, et al.,

Respondents.

On Writ of Certiorari to the United States Court

of Appeals for’ the Eighth Circuit

SS

BRIEF OF THE LEGAL AID SOCIETY

OF NEW YORK, AMICUS CURIAE

———SSSSSSS

Wuium FE. Hewizesrem

Jom. Bercur

Wannen H. Ruomonp, Il

The Legal Aid Society

Prisoners’ Rights Project

119 Fifth Avenue

New York, New York 10003

(212) 677-4224

Counsel for Amicus Curiae

TABLE OF CONTENTS

PAGE

I A I cc ssannnsnrnemncistrioninninncnticienaihingnanntnak 1

I OE TAI sic cstcscnssnvinnnacegosenarionrininnsteibbos 3

Argument

The Due Process Clause of the Fourteenth

Amendment requires that a prisoner be afforded

basic procedural protection prior to the imposi-

ee Sr I nics eneciniecentiercscise cs 4

ER ONE. 8 ERRATA IN TOT 28

Cases:

Alverez v. Turner, 422 F. 2d 214 (10th Cir. 1970) ...... 11

Braxton v. Carlson, 483 F. 2d 933 (3rd Cir. 1973) ........ 10, 14

Bundy v. Cannon, 328 F. Supp. 165 (D. Md. 1971) ........ 22

Carrington v. Rash. 380 U.S. 89 (1965) 0.0.0... 14

. Cole v. Arkansas, 333 U.S. 196 (1948) ..............00000000.... 21

Colligan v. United States, 349 F. Supp. 1233 (E.D.

eS: TE NRE i ee 26

Collins v. Schoonfield, 344 F. Supp. 257 (D. Md. 1972) 22

Davis v. Alaska, —— U.S. ——, 42 U.S.L. Week 4295

Cont Wr es 23

Dodson v. Haugh, 473 F. 2d 689 (8th Cir. 1972) .......... 24

Gagnon v. Searpelli, 411 U.S. 778 (1973) .................. 2, 25, 26

ee gk & ge , Sane eure 11, 21

Goldberg v. Kelly, 397 U.S. 254 (1970) 2.000... 6, 14, 21,

22, 25, 27

Gonzalez v. United States, 348 U.S. 407 (1955) ............ 27

Greene v. McElroy. 360 U.S. 474 (1959) ooo... 6, 22

II

PAGE

Hannah v. Larche, 363 U.S. 420 (1960) 0.0.0.0... 4

Harman v. Forssenius, 380 U.S. 528 (1965) .................. 14

Hill v. Texas, 316 U.S. 400 (1942) 2020.0... 14

Johnson v. Avery, 393 U.S. 483 (1969) 0.0... 5

Joint Anti-Fascist Refugee Committee v. McGrath,

B41 U.S. 123 (195D) none eccccceeeecccccceeceeteceeenenenenens 6, 28

Kostal v. Tinsley, 337 F. 2d 845 (10th Cir. 1964) ........ 4

Landman v. Peyton, 370 F. 2d 135 (4th Cir. 1966) ...... 20

Landman v. Royster, 333 F. Supp. 621 (E.D. Va.

FE Sacer eesciriedtnmtigeeneisonmiamibeses 21, 22, 24, 26

McCloskey v. Maryland, 337 F. 2d 72 (4th Cir. 1964) 4

McDonnell v. Wolff, 483 F. 2d 1059 (8th Cir. 1973)... 14

Monks v. New Jersey State Board of Parole, 58 N.J.

938, 377 A. 94.198 (2971) 0.0... cccsssceeenees 27

Morrissey v. Brewer, 408 U.S. 471 (1972) .........0.0.00.... 2, 5, 11

Newkirk v. Butler, 364 F. Supp. 497 (S.D.N.Y. 1973) 8

Nieves v. Oswald, 477 F. 2d 1109 (2d Cir. 1973) ........ 16

Palmigiano v. Baxter, 487 F’. 2d 1280 (1st Cir. 1973) .... 5,7,

12, 14, 26

Powell v. Alabama, 287 U.S. 45 (1932) ........0.000ccn. 25

SEC v. Chenery Corp., 318 U.S. 80 (1943) 00.0.0. 27

Shapiro v. Thompson, 394 U.S. 618 (1969) .................... 14

Sostre v. McGinnis, 442 F. 2d 178 (2d Cir. 1971) (en

banc), cert. denied sub nom. Sostre v. Oswald,

COG Se TID innit es Ss 5, 14, 17

U.S. ex rel. Miller v. Twomey, 479 F. 2d 701 (7th Cir.

ERROR RR CEN UR te Gey PNT 5, 7, 14

—

III

PAGE

Washington v. Lee, 263 F. Supp. 327 (M.D. Ala. 1966),

aff’d 390 U.S. 333 (1968) ooo. ccccceeeeecseeeseee 5

Willner v. Committee on Character and Fitness, 373

Cote ID GOI sie Ries ssip cc secsvessiicisibieaccbieatscatdaizbkin cas 6

Wisconsin v. Constantineau, 400 U.S. 433 (1970) ........ 6

Statutes and Regulations:

7 New York Code of Rules and Regulations:

SEPOE sentessssisseniiestisutdeapadasncempintncsidieetanerteaiea 9

Chapter V, pt. 253 ooo... cccccccccscscetssesessesceees 16

$253.5 oo. ious bs daveaennaidenidbedenasepmmssbinearstansdceaaatorsies 8

$253.5 (a) (3) oe cccccccccscescsssessesesesvessacscsesaeavsvereecevene 9

GOR) Socsvsvicsccnssscssescsssscssscossnssossesccovscacanssecsesecs 9

Miscellaneous Authorities:

ABA Resource Center for Correctional Law and Legal

Services, Survey or Prison Disorpurwary Praoc-

TICES AND Procepurgs (April, 1974) 0... 13

Bennett, I Coose Prison (1970) o.oo cocceceeees 19

Feit, Prison Discrpting anD THe Inmate SENSE oF

heintesy mas cit Se ht Se TT Es Race 19

Fox, Why Prisoners Riot, 35 Fep. Pros. 9, 13 (March,

BN cntsitrsecccneeriaiet ec ays See a 12

Gellman, Amvrarpen-(10G1) oon... ecnccsccccsccseoscossess...... 7

Goldfarb and Singer, Arrer Coyxvicrion ( NE aisdictas 19

_ Jacob, Prison Discipline and Inmate’s Rights, 5 Harv.

Crv. Rrs.—Crv. Lis. L. Rav. 227 (1970) ........... 23

Kansas Penal System, Inmate Disciplinary Proce-

re: Cans, SOU is is 13

Iv

PAGE

N.Y. Dept. of Corr. Serv., Inmates’ Rule Book (Rev.

©, GDB) ni .naeccecensccsisessscavsnsscsscabeccntnntecsesensnnsscensenssesenne 21

New York State Sprzomi Commission on Arrica

(**McKay Commission’’), THe Orricta Report

ON ATTICA (1972) oon... eeececeseceseeteteseeteeetenenencenseenens 19

President’s Commission on Law Enforcement and the

Administration of Justice, Task Force Report:

CORBBOTIONS (1967) ..............cccccccceesssenesescetenenseeseens 12, 24

South Carolina Dept. of Corrections, Taz Emerrcine

RicHts oF THE CONFINED (1972) ...........:.:eeee 15

Vermont Department of Corrections, Disciplinary

Regulations (July, 1972) ..............::s:eseee 13

Wright, Tue Porrics or PUNISHMENT CRUE ssicsctin 18

Zimbardo, INTERPERSONAL Dynamics In 4 SIMULATED

Prammntes CIGTG) anna snsighcnerseccncepscncenssezessccmrnnnncnoanens 20

Cartes Wotrr, Jr., et al.,

Petitioners,

vs.

Rosert O. McDonnez11, e¢ al.;

Respondents.

On Writ of Certiorari to the United States Court

of Appeals for the Eighth Circuit

a

BRIEF OF THE LEGAL AID SOCIETY

OF NEW YORK, AMICUS CURIAE

Interest of Amicus*

The Legal Aid Society is a non-profit organization in-

corporated under the laws of the State of New York for

the purpose of providing legal assistance to persons too

poor to afford the services of legal counsel.

* Letters of consent have been obtained from respondents’ coun-

sel and the Attorney General of the State of Nebraska, and are on

file with the Clerk of the Court.

2

In September, 1971, the Society established a special

litigation unit, the Prisoners’ Rights Project, to protect

the rights of prisoners in New York State. Since its in-

ception, the Project has represented prisoners in a sub-

stantial amount of prison reform litigation in both state

and federal courts. Project attorneys frequently visit New

York prisons and receive a vast quantity of correspondence

from prisoners and parolees.

Based on the Project’s experience with New York’s

correctional system, amicus believes that.the procedures

by which prison discipline is imposed are of the utmost

concern to the inmate population. As will be established

in this brief, prison disciplinary action can affect not only

the nature but also the duration of a prisoner’s confinement.

Accordingly, there is a critical need for sufficient proce-

dural safeguards at disciplinary hearings in order to insure

the fair imposition of prison discipline.

The purpose of this brief is to assist respondents in

persuading the Court that the Fourteenth Amendment re-

quires the same rudimentary procedural safeguards at

prison disciplinary proceedings as were applied to parole

revocation proceedings in Morrissey v. Brewer, 408 US.

471 (1972) and Gagnon v. Scarpelli, 411 U.S. 778 (1973).

In support of our constitutional argument we will en-

deavor to convey to the Court what we have learned from

our involvement with the New York prison system—an

involvement which has led us to conclude that the pro-

cedural protection afforded by Morrissey and Gagnon is

necessary to protect the interests of both the inmate and

prison administration.

3

Amicus will not discuss the other issues in this case

as we have not experienced substantial difficulties in these

areas in New York State. As to each of these issues, how-

ever, we fully support the position of respondents.

Summary of Argument

The Court has frequently recognized that only through

the application of traditional due process safeguards is

accurate fact-finding insured and arbitrary governmental

action avoided. In recent years, it has been established

beyond a doubt that prisoners, like all citizens, are entitled

to the protection of the Due Process Clause. Accordingly,

rudimentary procedural protection should be afforded pris-

oners prior to the imposition of prison discipline.

Disciplinary action can cause a prisoner ‘‘ grievous loss”?

by substantially altering both the nature and duration

of his confinement. The prisoner’s interest in avoiding that

loss outweighs any interest the prison administration

has in summary adjudication. Indeed, due process pro-

tection at prison disciplinary hearings would operate

to promote, rather than defeat, the institutional goals of

security and rehabilitation and would not present an un-

manageable administrative burden.

Although the lower courts have been in agreement that

fair disciplinary proceedings are constitutionally required,

some courts have held that the particular safeguards of

confrontation, cross-examination, counsel and the right to

call witnesses are not necessary to insure fairness. How-

ever, factual disputes are as likely to occur in prison dis-

4

ciplinary hearings as in other adjudicatory settings, and

in such cases a fair inquiry into the facts cannot be had

in the absence of these safeguards. Furthermore, the pecu-

liar nature of prison society creates a real possibility for

abuse of the disciplinary process.

The minimum procedural requirements of the Due

Process Clause have historically been the best techniques

for discovering truth and insuring objective decision-mak-

ing. In the context of prison disciplinary hearings, these

requirements should include (a) prior written notice of the

charges; (b) an impartial tribunal; (c) the opportunity

to confront and cross-examine adverse witnesses and to

call witnesses in one’s own behalf; (d) representation by

counsel and counsel substitute; and (e) a written statement

of the evidence relied on and reasons for the decision.

ARGUMENT

The Due Process Clause of the Fourteenth Amend-

ment requires that a prisoner be afforded basic pro-

cedural protection prior to the imposition of prison

discipline.

L

As recently as ten years ago, the customary judicial

response to inmate allegations of mistreatment was to with-

hold relief in deference to the discretion of prison admin-

istrators.: At that time, for all practical purposes, the

1. E.g., McCloskey v. Maryland, 337 F. 2d 72, 74 (4th Cir.

1964) ; Kostal v. Tinsley, 337 F. 2d 845, 846 (10th Cir. 1964).

5

Constitution did not exist within prison walls. Today,

however, after a decade of judicial decrees protecting the

rights of those in custody, ‘‘it is well established that pris-

oners do not lose all their constitutional rights and that the

Due Process and Equal Protection Clauses of the Four-

teenth Amendment follow them into prison and protect

them there from unconstitutional action on the part of

prison authorities.’ Washington v. Lee, 263 F. Supp. 327, .

331 (M.D. Ala. 1966), aff’d 390 U.S. 333 (1968). As the

Court stated in Johnson v. Avery, 393 U.S. 483 ( 1969) :

There is no doubt that discipline and administration

of state detention facilities are state functions. They

are subject to federal authority only where paramount

federal constitutional or statutory rights supervene.

It is clear, however, that in instances where state reg-

ulations applicable to inmates of prison facilities con-

flict with such rights the regulations may be invali-

dated. 393 U.S. at 486.

Lower courts have not hesitated to intervene in internal

prison affairs to protect prisoners from arbitrary, capri-

cious or discriminatory treatment. The Due Process Clause

has thus been invoked in prison cases to provide protection

against discriminatory and arbitrary infliction of ‘“griev-

ous loss’’ upon prisoners by their keepers. Palmigiano v.

Baxter, 487 F. 2d 1280 (1st Cir. 1973) ; U.S. ex rel. Miller

v. Twomey, 479 F. 2d 701 (7th Cir. 1973); Sostre v. Mc-

Ginmis, 442 F. 2d 178 (2d Cir. 1971) (en banc), cert. denied

sub nom. Sostre v. Oswald, 404 U.S. 1049 (1972).

In Morrissey v. Brewer, 408 U.S. 471 (1972), the specific

requirements for minimum due process were made appli-

— ——

. 6

cable to parole revocation proceedings. Although Morris-

sey marked the first instance where the Court extended such

procedural protection to individuals in custody, that deci-

sion is but another statement of the Court’s frequent recog-

nition that only through traditional due process safeguards

is aecurate fact-finding insured and arbitrary governmental

action avoided. Joint Anti-Fascist Refugee Committee v.

McGrath, 341 U.S. 123 (1951) ; Greene v. McElroy, 360 U.S.

474 (1959) ; Willner v. Committee on Character and Fitness,

373 U.S. 96 (1963) ; Goldberg v. Kelly, 397 U.S. 254 (1970).

Thus, the Court’s statement in Wisconsin v. Constantineau,

400 U.S. 433, 436 (1970): ‘‘It is significant that most of

the provisions of the Bill of Rights are procedural, for it

is procedure that marks much of the difference between

rule of law and rule by fiat.’’

On numerous occasions this Court has described due

process as a flexible concept. ‘‘[I]ts exact bourfdaries are

undefinable and its content varies according to specific

factual contexts.’’ Hannah v. Larche, 363 U.S. 420, 442

(1960). The flexibility of the standard was thus articulated

in Goldberg:

The extent to which procedural due process must be

afforded the [individual] is influenced by the extent to

which he may be ‘‘condemned to suffer grievous loss,”

Joint Anti-Fascist Refugee Committee v. McGrath, 341

U.S. 123, 168 (1951) (Frankfurter, J. concurring), and

depends upon whether the [individual’s] interest in

avoiding the loss outweighs the governmental interest

in summary adjudication. 397 U.S. at 262-63.

In applying this test to prison disciplinary hearings it .

becomes clear that prior to the imposition of any discipli-

ba

7

nary sanction an inmate should at least be afforded the

rudimentary procedural safeguards set down in Goldberg.

These safeguards include (a) prior written notice of the

charges; (b) an impartial tribunal; (c) the opportunity to

confront and cross-examine adverse witnesses and to call

witnesses in one’s own behalf; (d) representation by coun-

sel and counsel substitute; and (e) a written statement of

the evidence relied én and reasons for the decision. As will

be established herein, only through the application of these

safeguards will the interests of both the inmate and the

prison administration be protected.

Il.

There can be no doubt that an inmate who is charged

with a violation of institutional rules is threatened with a

“grievous loss’’ within the meaning of Goldberg. While

it is obvious that inmates do not enjoy all the liberties of

free persons, any liberties which they retain thereby achieve

a greater significance. Palmigiano v. Baater, supra, 487

F. 2d at 1284; U.S. ex rel. Miller v. Twomey, supra, 479

F, 2d at 719. Thus, their interest in fair disciplinary pro-

ceedings cannot be minimized. As Professor Goffman has

observed :

In general, the punishments meted out in total institu-

tions are more severe than anything encountered by

the inmate in his home world. In any case, conditions —

in which a few easily controlled privileges are so im-

portant are the same conditions in which their with-

drawal has a terrible significance. Gorrman, AsyLums

50-51 (1961).

In New York, disciplinary decisions greatly affect an

inmate’s liberty within the prison system. For example, an

inmate might be confined at one of seven maximum security

institutions or at a medium security institution such as the

Wallkill Correctional Facility. At the latter, inmates are

permitted far more freedom of movement and have access

to many more rehabilitative programs. The determina-

tion whether an inmate is a suitable candidate for place-

ment in Wallkill depends in large part on his disciplinary

record at maximum security facilities.* Furthermore, once

an inmate is at Wallkill, a single disciplinary infraction

might result in his transfer back to a maximum security

institution.‘

Disciplinary infractions also determine the degree of

liberty an inmate may have within his particular institu-

tion. Each institution in New York State contains a ‘‘spe-

cial housing unit’? where an inmate may be confined for up

to sixty days as a result of a serious disciplinary infraction.

7 NYCRR §253.5. In a special housing unit, an inmate is

deprived of many of the liberties of prison life. He is

wk: 2. See, Newkirk v. Butler, 364 F. Supp. 497, 500 (S.D.N.Y.

[T]he conditions [in the maximum security institutions]

contrast strikingly with those in Wallkill. * * * The cells are

locked, the armed, the access to library and recrea-

tional facilities more limited, the space more crowded, and

the rehabilitation programs significantly less extensive.

3. Walter Dunbar, former Executive Deputy Commissioner, New

York Department of Correctional Services, testified to this fact on

ee ee ee Butler, supra, n. 2.

4. This is described in “The Wallkill Story,” a mimeo-

graphed publi “——<— ee

partment of

segregated from the general prison population, confined to

his cell for at least twenty-three hours a day, denied par-

ticipation in educational and industrial programs and de-

nied the opportunity to earn wages.°

A third consequence of disciplinary action might be

removal from a rehabilitative program such as school, in-

dustrial training, work release or furlough, 7 NYCRR

§253.5(a)(3). Participation in such programs is generally

severely limited. As a result, removal might well mean

that the inmate will not receive another such opportunity

for months or even years.

In addition to jeopardizing an inmate’s institutional

liberty and his access to rehabilitative programs, disci-

plinary infractions also indirectly jeopardize his liberty in

the traditional sense by reducing his chances for parole

release. In New York, an inmate’s disciplinary record is

a major factor in determining his eligibility for parole.

7 NYCRR §1.10(a). Indeed, the Board of Parole has, on

occasion, postponed an inmate’s parole release hearing

pending the outcome of disciplinary proceedings against

him.* On other occasions, the Board has rescinded an un-

executed grant of — where the potential parolee was

5. As a less severe t, an inmate may also be “keep-

locked” vege ey thaw thw e: 7 NYCRR §253.5(a) (4). This in-

volves the same confinement in a special housing unit

once uth aa cont pete Rev araty-regid at “power wrap Ap

segregated from the inmate population.

6. For example, in July, 1973, the New York State Board of

Parole postponed the le release hearing of James Arnold, an in-

mate at — a — pone ol pnd pool client of

amicus, use of instituti rges pending inst

him. After Arnold was found guilty of these charges de Boned

lcci: cheese a SAE ie be in ee ee

10

found guilty of a disciplinary infraction after the grant of

parole, but before his actual release."

Consequently, inmates possess a significant quantum of

liberty which may be threatened by disciplinary action.

Unless there exists a substantial countervailing interest on

the part of prison administrators, due process requires that

there be sufficient procedural saféguards at disciplinary

hearings to preclude deprivations of that liberty as the

result of inadequate and, at times, biased factual deter-

minations.

Prison administrators generally proffer three basic jus-

tifications in support of summary decision-making in the

disciplinary process: first, that imposition of discipline is

not truly adversarial in nature but merely a component

of the rehabilitative and therapeutic scheme of incar-

ceration ;* second, that a requirement of due process pro-

tection prior to punishment would constitute a threat to

institutional security ;* and third, that procedural protec-

tion at disciplinary hearings would create a severe admin-

istrative burden and result in additional expenditure of

public funds.”

:

institutional infractions. On November 15, 1973, Cook was told that

the Board of Parole had rescinded his parole and that he would have

to wait another four months for release consideration.

8. See, Braxton v. Carlson, 483 F. 2d 933 (3rd Cir. 1973).

9. See, Brief of Petitioners, p. 28.

10. Jd. at p. 41.

—

11

In light of the decisions of this Court and the writings

of correctional authorities, these purported justifications do

not withstand analysis. Indeed, it can be shown that due

process protection at prison disciplinary hearings is con-

sistent with the interests of prison administrators as it

tends to promote, rather than defeat, the goals of security

and rehabilitation.

The argument that due process does not apply where

adjudicatory proceedings are rehabilitative or therapeutic

has been firmly rejected by the Court. In In re Gault, 387

U.S. 1 (1967), the Court rejected the invocation of parens

patriae as justification for withholding procedural safe-

guards at juvenile proceedings. Similarly in Morrissey v.

Brewer, supra, 408 U.S. 471, the Chief Justice noted that

the procedural protections required therein were consistent

with the purposes of parole:

[S]Jociety has a further interest in treating the parolee

with basic fairness: fair treatment in parole revoca-

tions will enhance the chance of rehabilitation by avoid-

ing reactions to arbitrariness. 408 U.S. at 484."

That fairness operates as a constructive force in re-

habilitative efforts has also been recognized by the Presi-

dent’s Commission on Law Enforcement and Administra-

tion of Justice:

The necessity of procedural safeguards should not be

viewed as antithetical to the treatment concerns of

corrections. The existence of procedures both fair in

11. Prior to the Morrissey decision, the rehabilitative nature of

revocation proceedings had been used as a justification for denyi

procedural See, Alwerez v. wasn, 422 F. 2d 214, 21

(10th Cir. 1970) (parole revocation hearing need not be adversarial

since “the decision to revoke parole is prognostic.”).

12

fact and perceived to be fair by offenders is surely

consonant with the ‘‘collaborative regime’’ emphasized

as desirable by modern corrections, in which staff and

offenders are not cast as opponents but are united in

a common effort aimed at rehabilitation. In a prison

no less than in society as a whole, respect for and co-

operation with authority requires the guaranty of fair-

ness. President’s Commission on Law Enforcement

and the Administration of Justice, Task Force Re-

port: Corrections 13 (1967).

In addition to jeopardizing rehabilitation, the pris-

oner’s impression of disciplinary hearings as unfair may

engender such bitterness as to present a threat to prison

security. As Chief Judge Coffin has observed:

[T]he orderly care with which decisions are made by

the prison authority is intimately related to the level

of respect with which prisoners regard that authority.

There is nothing more corrosive to the fabric of a

public institution such as a prison than a feeling among

those whom it contains that they are being treated

unfairly. Palmigiano v. Baxter, supra, 487 F. 2d at

1283.

Unfair disciplinary methods have in fact been termed

one of the major causes of prison riots:

Readiness to riot results from predisposing causes

such as * * * oppressive custodial discipline, sadistic

staff quick to write disciplinary charges against in-

mates, and a general punitive attitude by administra-

tion and line personnel. Fox, Why Prisoners Riot, 35

Fep. Pros. 9, 13 (March, 1971).

It is undisputed that in emergency situations prison

officials. have the right to act promptly and immediately,

13

and we do not urge that an administrative hearing is neces-

sary prior to the imposition of discipline in such cases.

The normal disciplinary case, however, does not occur in

an emergency setting. In the ordinary course of prison

affairs, administrative hearings would have no detrimental

effect on security. Rather, the impression of fairness en-

gendered by such hearings would seem far more likely to

prevent inmate disturbances,

The argument that basic due process protection at dis-

ciplinary hearings would cause an undue administrative

burden and expense may well be illusory. A recent survey

of nationwide disciplinary practices conducted by the

American Bar Association’s Resource Center for Correc-

tional Law and Legal Services” indicates that many juris-

dictions have not found the burden unmanageable. The

survey found that twenty-nine jurisdictions presently allow

inmates to call relevant witnesses at disciplinary hearings,

twenty-eight allow inmates to cross-examine adverse wit-

nesses and fourteen permit the inmate representation by —

counsel. While some of these jurisdictions have adopted

such safeguards as a result of litigation, others have done

so on their own initiative.”

However, the question of whether or not procedural due

process would cause an administrative or financial burden

is without constitutional significance. The Court has re-

12. ABA Resource Center for Correctional Law and Legal Serv-

a urvey of Prison Disciplinary Practices and Procedures (April,

7.

13. See, Kansas Penal System, Inmate Disciplinary Procedures

(August, 1972) ; Vermont Department of Corrections, Disciplinary

Regulations (July, 1972).

14

jected at every turn arguments that have urged limitations

in the definition of constitutional rights based upon asser-

tions of unavailable resources by the States. Goldberg v.

Kelly, supra, 397 U.S. at 266; Harman v. Forssenius, 380

U.S. 528, 542 (1965); Shapiro v. Thompson, 394 US. 618,

633 (1969); Carrington v. Rash, 380 U.S. 89, 96 (1965).

In short, the meaning of the Due Process Clause does not

fluctuate in proportion to the number of persons who seek

justifiable refuge in it. The rights afforded by the Consti-

tution are personal rights ‘‘which the State must respect,

the benefits of which every person may demand * * *. [I]ts

safeguards extend to all.’’ Hill v. Texas, 316 U.S. 400, 406

(1942).

Having applied the Goldberg test to prison disciplinary

proceedings, the lower courts are in agreement that the

inmate’s interest in fair decison-making outweighs any

governmental interest which would sacrifice fairness. There

has, however, been significant disagreement as to precisely

what procedural safeguards are necessary to insure fair-

ness in the prison context. McDonnell v. Wolff, 483 F. 2d

1059 (8th Cir. 1973) [this case]; Palmigiano v. Bazter,

supra, 487 F. 2d 1280; U.S. ex rel. Miller v. Twomey, supra,

479 F. 2d 701; Sostre v. McGunis, supra, 442 F. 2d 178;

Brazton v. Carlson, 483 F.2d 933 (3d Cir. 1973).

Sostre, the leading case rejecting basic procedural pro-

tection, involved a disciplinary proceeding in which there

had been no real dispute of fact. The only issue concerned

the propriety of Sostre’s admitted jailhouse lawyering, his

refusal to discuss a black liberation group referred to in

15

his letters and a reference in a letter to his impending ‘‘lib-

eration.”? Upon this record, the court of appeals held that

Sostre was entitled to a ‘‘minimally fair and rational’? in-

quiry based upon ‘‘facts rationally determined.” 442 F. 24

at 198. However, the court declined to require the specific

due process safeguards of confrontation, cross-examina-

tion, counsel, and the right to call witnesses.

Sostre’s holding that a ‘minimally fair and rational

_inquiry’’ can be had in the absence of full due process pro-

tection has been severely criticized and for good reason.

As Professor Millemann has written:

It is an empty promise to guarantee fairness while

omitting the tools necessary to accomplish that fair-

ness. If there is no requirement of due process at a

disciplinary hearing, then the proceeding would sim-

ply follow this scenario: inmate Jones comes before

a disciplinary panel; inmate Jones is told that he has

been accused of committing a certain act of miscon-

duct; inmate Jones is asked what ‘this side of the

story is’’; and, in the overwhelming number of cases,

inmate Jones is told that he is guilty. Without vehi-

el r discovering truth and insuring objectivity ad-

i ative’ proceedings become a sham and a means

for legitimizing arbitrariness, Millemann, Prison Dis-

ciplinary Hearings And Procedural Due Process—The

Requirement Of A Full Administrative Hearing, 31

Mp. L. Rev. 27, 50 (1971).

See also, South Carolina Dept. of Corrections, Taz Emerc-

inc Ricuts or THE Conrtnep 108 (1972).

The Second Circuit itself recently cast doubt on the

continued vitality of the Sostre standard. In a prison

_— mag

16

discipline case containing numerous factual disputes con-

cerning the role of certain inmates in the Attica rebellion,

the court held that the right to cross-examination as well

as to other due process safeguards had not been ‘‘inesca-

pably foreclosed’’ by Sostre and noted that in Sostre, ‘‘we

did not state that none of the rejected safeguards were

ever to be constitutionally required in any case * * *,”

Nieves v. Oswald, 477 F. 2d 1109, 1113 (2d Cir. 1973).

Factual disputes are as likely to arise in prison disci-

plinary hearings as in any other adjudicatory setting.

When such disputes occur, it is virtually impossible for an

inmate to establish innocence at a hearing conducted in

accordance with the Sostre standard. For example, in July

of 1973, three inmates at the Great Meadow Correctional

Facility were accused by another inmate of having raped

him. Institutional disciplinary hearings were held where

each of the three denied this serious charge and named

alibi witnesses to establish that each was not even present

at the time and place of the alleged rape. Each also re-

quested an opportunity to confront and cross-examine the

inmate levelling the accusation and to be permitted repre-

sentation by counsel. In accordance with the rules gov-

erning prison disciplinary hearings in New York State,"

all of these requests were denied, no witnesses were called,

and the three prisoners were disciplined solely on the basis

of the accusing inmate’s written allegations.”

14. 7 NYCRR, Ch. V, pt. 253.

15. Superintendent’s Proceedings of James Arnold, Joseph Elfe

and Neurha Short, Great Meadow Correctional Facility, Comstock,

New York, July 31, 1973. These facts are the subject of a civil rights

action, Elfe, et al. v. Preiser, et al., 73 CV 482, filed by the Prisoners’

Rights Project in October, 1973, in the United States District Court

for the Northern District of New York.

17

In a second case, an inmate at the Ossining Correctional

Facility was charged with challenging a correction officer to

afight. At the disciplinary hearing, the inmate pleaded not

guilty and submitted a list of five inmate witnesses whom he

wished to have testify. Each of these witnesses would have

corroborated the inmate’s story that the officer had pro-

voked the incident by pushing the inmate without any jus-

tification or provocation. As in the previous example, the

witnesses were not permitted to testify and the inmate was

found guilty solely on the basis of the officer’s written

report.’

In each of these examples, the inmates faced with dis-

ciplinary action were left with ‘a reasonable opportunity

to explain [their] actions” [Sostre v. McGinnis, supra, 442

F. 2d at 198] as their only means of defense, In the first

example, this explanation could only be a declaration that

they did not know anything about the incident in question.

In the second, any explanation would necessarily involve

asking the prison disciplinary board to believe the word

of a single inmate over the word of a correctional officer,

There can be little question that both of these defenses are

of minimal worth:

In cases such as those detailed above, the absence of

full procedural protection necessarily prevents the ‘‘mini-

mally fair and rational inquiry’’ into the facts assumed

possible by Sostre, Indeed, without greater procedural

protection than a Sostre-type rule affords, there is likely

to be no genuine inquiry.

16. Superintendent’s Proceeding of Dennis Yarrell, Ossining

Correctional Facility, Ossining, New York, January 10, 1972.

18

Observers of hearings similar to those countenanced by

Sostre have noted the disciplinary board’s inclination to

accept a reporting officer’s version of the facts without

questioning its accuracy. Erik Olin Wright, who attended

Adjustment Committee Proceedings at San Quentin, de-

scribed the normal. procedure:

When [the prisoner] entered the room he was told by

the chairman of the committee to sit down and then

was read the formal charge of which he was accused.

The chairman then asked the prisoner what he had to

say for himself. There followed a brief interrogation

by each of the committee members, after which the

prisoner was told to leave the room and wait outside.

The committee then discussed the case for two or three

minutes and reached a decision about what punishment

should be given the prisoner. In none of the cases

which I witnessed was there any discussion of the

possible innocence of the accused prisoner; all that

_ was discussed was the appropriate harshness of the

punishment. Wright, Tae Poxrrtics or PunisHMent

83-84 (1973) (emphasis added).

Ronald Goldfarb and Linda Singer have witnessed the same

phenomenon in other states:

In Wisconsin, for example, there are hearings before

a Disciplinary Committee whenever a prisoner is pun-

ished for a ‘‘substantial’’ violation. However, based on

his observations of the procedure at the State Reform-

atory, a legal intern concluded: ‘‘In essence, the com-

mittee takes the facts as stated in the [guard’s] con-

duct report to be true, thus creating a presumption of

guilt which is difficult if not impossible for the inmate

19

to overcome.’’ Our observations of hearings in pris-

ons in other states bear out. this conclusion. When

there is a substantial question of a prisoner’s guilt,

the usual practice is to find him guilty but give him

a mild sentence. Goldfarb and Singer, Arrzr Convio-

TION 493 (1973).27

The procedural protection afforded by Sostre is also

inadequate because of the peculiar nature of prison society.

Certain unique pressures and relationships exist in prisons

which make the need for a close examination of the facts

underlying disciplinary action particularly acute. An ex-

ample of this has been described by a former Director of

the Federal Bureau of Prisons:

(T]he prison society has its way of enforcing its rules.

Gambling, for example, is “illegal in federal prisons.

* * * [Wlelching on a bet, however, is a sin to be

avenged by some subtle: method, such as planting dope

or a knife beneath the offender’s bed and tipping off

an officer. Bennett, I Cuosz Prison 28 (1970).

Another reality of prison life is that prison guards are

likely to be poorly educated,"* and poorly trained” yet

_ 17. Indeed, many inmates have expressed the belief that protesta-

tions of innocence may result in a harsher penalty. Thus, in the face

of this heavy presumption of guilt, they will admit the violation re-

gardless of whether or not they are guilty. See, Feit, Prison Dis-

CIPLINE AND THE INMATE SENSE OF INJUSTICE 33 i. - *

18. See the testimony of John B. Greenholtz, Chairman, Ne-

braska Board of Paroles, and former Deputy Warden, Nebraska

Penal and Correctional Complex. Appendix, p. 19.

19. See generally, New Yorx State SPECIAL CoMMISSION oN

m8 t to) 8 Commission”), THe OFFICIAL REPORT ON ATTICA

vested with near total control over the lives of inmates.”

_In view of this, there exists a real possibility that they will

misuse their authority... Thus, disciplinary procedures

such as those established in Sostre, which permit an in-

mate to be punished solely on the basis of a guard’s writ-

ten report, will necessarily constitute an invitation to arbi-

trariness.

IV.

Throughout our constitutional history, the minimum

procedural requirements of the Due Process Clause have

proven to be the most effective devices for the discovery

of truth and insuring objective decision-making. Although

their value has been repeatedly underlined by the Court,

20. For an analysis of the possible effects of this total control on

the guards themselves, see Z , INTERPERSONAL DyNamics

IN A Srmutatep Prison (1972). Professor Zimbardo created a

simulated prison at Stanford in which well-adjusted students

role-played prisoners and guards for an extended period of time. At

the termination of the study, Zimbardo concluded that :

expressed s of i

the threat of manifest physical power. There was no need for

the guards to rationally justify a request as they did in their

ordinary. life, and merely to make a demand was sufficient to

have it carried out. Jd. at 41. .

21. See, Landman v. Peyton, 370 F. 2d 135, 140 (4th Cir. 1966):

i operated

rt salaries and working conditions make it difficult to attract

igh calibre personnel. Moreover, the “training” of the officers

in methods of dealing with obstreperous prisoners is but a ea

phemism in most states.

21.

it will be helpful to discuss briefly the necessity of each in-

dividual procedural requirement in the context of prison

disciplinary hearings.

(1) Prior Written Notice of the Charges

The most clearly established principle of due process

is that timely and adequate notice must be furnished the

party proceeded against. Cole v. Arkansas, 333 U.S. 196,

201 (1948) ; Jn re Gault, 387 U.S. 1, 33 (1967) ; Goldberg v.

Kelly, supra, 397 U.S. at 267-268. In prison, notice is

particularly important because the rules governing inmate

conduct are generally extremely vague and uncertain.”

Without specific written notice of the charges an inmate

will have no opportunity to adequately present his version

of the incident or to insure that the hearing is kept within

bounds. Landman v. Royster, 333 F. Supp. 621, 660 (E.D.

Va. 1971).

(2) Impartial Tribunal

Whether or not an individual receives a fair hearing

ultimately depends on the fairness of the tribunal.

In prison, the nature of institutional society creates se-

rious doubt as to whether any prison employee could be a

22. In New York, for example, there are rohibitions against

ings as “vul ”, “insolence” oni’ “boi noise”.

of Corr. Serv., Inmates’ Rule Book, Rules 6, 7, 42 (Rev.

23. The Prisoners’ Rights Project recently filed a civil rights

action in the United States District Court for the Southern District

of New York seeking, inter alia, an order compelling the Commis-

of Correctional Services to promulgate and distribute a com-

plete listing of all rules and regulations governing inmate conduct

“im sufficiently clear and explicit sO as to prevent incon-

sistent application, arbitrariness and favoritism.” Betancourt, et al.

truly impartial member of an disciplinary tribunal. Thus;

some lower court decisions have required that at least one

member of the tribunal be from outside the prison staff.

See Bundy v. Cannon, 328 F. Supp. 165 (D. Md. 1971);

Collins v. Schoonfield, 344 F. Supp. 257 (D. Md. 1972). At

a minimum, however, each member of the tribunal must be

free of any prior involvement with the incident under ex-

amination so that he may decide the case on the basis of

the evidence at the hearing. Landman v. Royster, supra,

333 F. Supp. at 653.

(3) Confrontation, Cross-examination and Witnesses

The right to confront and cross-examine opposing wit-

nesses has been accepted as being appropriate and neces-

sary ‘‘[i]n almost every setting where important decisions

turn on questions of fact.’’ Goldberg v. Kelly, supra, 397

U.S. at 269. The importance of these rights cannot be

overestimated. As Chief Justice Warren wrote in Greene

v. McElroy, 360 U.S. 474 (1959):

Certain principles have remained relatively immuta-

ble in our jurisprudence. One of these is that where

governmental action seriously injures an individual,

and the reasonableness of the action depends on fact

findings, the evidence used to prove the Government's

case must be disclosed to the individual so that he has

an opportunity to show that it is untrue. While this

is important in the case of documentary evidence, it is

even more important where the evidence consists of

the testimony of individuals whose memory might be

faulty or who, in fact, might be perjurers or persons

motivated by malice, vindictiveness, intolerance, prej-

udice, or jealousy. We have formulized these protec-

tions in the requirement of confrontation and cross-

examination. * * * This Court has been zealous to

protect these rights from erosion. It has spoken out

not only in criminal cases * * * [citing] but also in all

types of cases where administrative and regulatory

actions were under scrutiny. 360 U.S. at 496-97.

In Davis v. Alaska, US. » 42 U.S.L. Week 4295

(February 27, 1974), the Court again underscored the para-

mount importance of the right of cross-examination not-

withstanding the state’s strong and legitimate policy of

preserving the confidentiality of juvenile records. 42

U.S.L. Week at 4299.

That prison guards, like other citizens, may at times

be motivated by ‘‘malice, vindictiveness, intolerance, prej-

udice or jealousy’’ is beyond doubt. The necessity for con-

frontation and cross-examination, therefore, is no less in

the context of prison disciplinary hearings. Significant

denials of liberty based upon the unchallenged testimony

of a faceless accuser are simply not consistent with con-

cepts of fundamental fairness and traditional notions of

procedural due process. Millemann, Prison Disciplinary

Hearings And Procedural Due Process—The Requirement

Of A Full Administrative Hearing, supra, 31 Md. L. Rev.

at 51; see also Jacob, Prison Discipline and Inmates’

Rights, 5 Harv. Civ. Rts.—Civ. Lib. L. Rev. 227, 247 (1970).

The traditional rationale for denying cross-examination

at prison disciplinary hearings has been that the question-

ing of correctional officers by inmates would erode the in-

mate-staff relationship.* This rationale, however, is based

on an archaic correctional philosophy the most current

attribute of which is its frequent repudiation. As the

24. See Brief of Evelle J. ounger, Attorney General of the State

of California, 1

Amicus Curiae, at p. 10.

—$_$__

President’s Commission on Law Enforcement has found,

**(djenying offenders any chance to challenge arbitrary

assertions of power by correctional officials * * * [is] in-

consistent with the correctional goal of rehabilitation,

which emphasizes the need to instill respect for and will-

ingness to cooperate with society and to help the offender

assume the role of a normal citizen.’’ Task Force Report:

Corrections 82 (1967). ‘Numerous lower courts, in requir-

ing confrontation and cross-examination, have also rejected

this rationale.” As Judge Merhige has stated:

The Court appreciates the concern of prison officials

that interrogation by prisoner of the guard force may

be at variance with their ordinary respective positions

in the penal hierarchy. Because most disciplinary

cases will turn on issues of fact, however, the right

to confront and cross-examine witnesses is essential.

Landman v. Royster, supra, 333 F. Supp. at 653.

Witnesses are also necessary to a fair hearing. “Fact

finding is not complete unless illuminated by the testimony

of witnesses called by both adversaries.’’ U.S. ex rel. Neal

' v. Wolfe, 346 F. Supp. 569, 574-75 (E.D. Pa. 1972). Obvi-

ously in any situation where an inmate may have alibi wit-

nesses he will not be able to present a defense unless they

are permitted to testify.”

25. Amicus relies on the Brief of Respondents for a full listing

of these decisions.

: ain See Dodson v. Haugh, 473 F. 2d 689, 690-91 (8th Cir.

¥

[I]n this case Iowa’s procedure should be reviewed to determine

whether they were likely to have established the truth of the as-

serted violation. * * * For all we know, Dodson may be able

to show that he could have called witnesses at his disciplinary

hearing who would have established an airtight alibi or mistaken

identification by the correctional officer who testified against him.

* * * Without an examination of any of the underlying facts,

the district court erred in dismissing this action.

(4) Counsel and Counsel Substitute

The right to counsel has long been recognized as an

essential element of due process. As was said in Powell

v. Alabama, 287 U.S. 45 (1932), “‘The right to be heard

would be, in many cases, of little avail if it did not com-

prehend the right to be heard by counsel.’’ 287 U.S. at 68-

69. Counsel can help delineate the issues, present the

fagtual contentions in an orderly manner, conduct cross-

examination, and generally safeguard the interests of the

individual. Goldberg v. Kelly, supra, 397 U.S. at 270-71.

In the prison setting, the absence of counsel may ren-

der all other procedural safeguards meaningless. Mr. Jus-

tice Powell’s observation in Gagnon v. Scarpelli, 411 U.S.

778, 786-87 (1973), easily adapts itself to the context of

prison disciplinary hearings:

[T]he effectiveness of the rights guaranteed by Mor-

rissey may in some circumstances depend on the use

of skills which the probationer or parolee is unlikely

to possess. Despite the informal nature of the pro-

ceedings and the absence of technical rules of proce-

dure or evidence, the unskilled or uneducated proba-

tioner or parolee may well have difficulty in presenting

his version of a disputed set of facts where the pres-

entation requires the examining or cross-examining

of witnesses or the offering or dissecting of complex

documentary evidence.

Amicus is well aware that requiring the states to ap-

point counsel in all disciplinary hearings might present

an unnecessary administrative burden, and thus such a

requirement is not urged herein. However, because of the

vital need for counsel in some disciplinary cases, we urge

the Court to adopt the test set forth in Gagnon and rule

that counsel should be provided in those cases where,

after being informed of his right to request counsel,

the [inmate] makes such a request, based on a timely

and colorable claim (i) that he has not committed the

alleged violation * * * or (ii) that, even if the violation

* * * is uncontested, there are substantial reasons

which justified or mitigated the violation * * * and

that the reasons are complex or otherwise difficult to

develop or present. Gagnon v. Scarpelli, supra, 411

U.S. at 790.

In all disciplinary cases, however, an inmate should be

permitted to bring retained counsel [Palmigiano.v. Baater,

supra, 487 F.2d 1280; Landman v. Royster, supra, 333 F.

Supp. 621] or where none is available, a counsel substitute

such as a law student or fellow inmate. See, Colligan v.

United States, 349 F. Supp. 1233, 1238 (E.D. Mich. 1972).

The assistance of counsel would enable an inarticulate in-

mate to present his case in an organized fashion and would

insure that all procedural safeguards are observed. The

presence of counsel might benefit the prison administration

as well. As the court noted in Palmigiano:

Counsel might provide correctional administrators

with useful guidance in novel situations where no pro-

cedural rules had as yet been developed. And because

the precise rudiments of prison disciplinary hearings

exist in a developing area of the law where no firm

guidelines exist, trained legal counsel may be of im-

portant assistance in reaching accommodations be-

tween inmates and administrators which would avoid

the necessity of continued litigation. 487 F. 2d at 1292.

27

(5) Written Findings of Fact and Reasons for the Decision

The concept of fundamental fairness has led the Court

to declare that administrative bodies must provide written

findings of fact and reasons. Goldberg v. Kelly, supra, 397

US. at 271; Gonzalez v. United States, 348 U.S. 407 (1955) ;

SEC v. Chenery Corp., 318 U.S. 80 (1943). Similarly, re-

quiring disclosure of reasons upon which disciplinary rul-

ings are based is crucial to the maintenance of fairness, as

it will preclude insulation of such decisions from scrutiny.

Indeed, where there is no statement of findings of fact and

reasons for the disciplinary decision, the harm caused by

the vagueness of prison regulations” is greatly com-

pounded. Cf. Monks v. New Jersey State Board of Parole,

58 N.J. 238, 277 A. 2d 193 (1971).

In sum, the need for the procedural safeguards out-

lined above is as great in prison as in other areas. And

what Mr. Justice Frankfurter once wrote in a related con-

text merits restatement here:

Man being what he is cannot safely be trusted with

complete immunity from outward responsibility in de-

priving others of their rights. At least such is the con-

viction underlying our Bill of Rights. That a conclu-

sion satisfies one’s private conscience does not attest

its reliability. The validity and moral authority of a

conclusion largely depends on the mode by which it

was reached. Secrecy is not congenial to truth-seeking

and self-righteousness gives too slender an assurance

of rightness. No better instrument has been devised

for arriving at truth than to give a person in jeopardy

27. See footnote 23, ante.

28

of serious loss, notice of the case against him and op-

portunity to meet it. Nor has a better way been found

for generating the feeling, so important to a popular

government, that justice has been done. Joint-Anti

Fascist Refugee Committee v. McGrath, supra, 341

U.S. at 171-172 (concurring opinion).

Conclusion

For the above reasons the judgment of the court

below should be affirmed.

Respectfully submitted,

Wri E. Heierstrem

JorL BERGER

Warren H. Ricumonp, III

The Legal Aid Society

Prisoners’ Rights Project

Counsel for Amicus Curiae